Minnesotas high court is targeting trial misconduct by prosecutors. County attorneys are crying foul. Defense lawyers are applauding.

By Paul Gustafson, Star Tribune


Minnesota prosecutors, the people accustomed to dishing out punishment, have found themselves on the receiving end of two recent state Supreme Court decisions that targeted improper closing arguments and other out-of-bounds trial behavior.

Prosecutors are bristling over the decisions, but many defense lawyers believe the stiff medicine is overdue.

In one case, the court reversed a gang member’s first-degree murder conviction because of what it called “pervasive” misconduct by the prosecutor, even though the state’s evidence was strong.

“You wouldn’t know the truth if it hit you in the face, would you, Mr. Mayhorn?” then-Clay County Attorney Lisa Borgen asked the defendant during questioning. The justices said Borgen tried to play on the passions of the jury and misstated the evidence. Borgen has since said she should not have questioned the defendant in that manner.

In another case the court changed a longstanding legal rule, putting the burden on prosecutors to prove that their misconduct didn’t substantially harm defendants’ rights in some criminal cases.

“We have identified numerous kinds of trial conduct that are improper for prosecutors. … Nevertheless, we continue to see cases in which prosecutors persist in clearly proscribed conduct,” Justice Helen Meyer wrote in September for a 4-3 majority in State vs. Ramey.

Ramsey County Attorney Susan Gaertner said that she understands that the goal is to do justice, not just win.

“But this is an adversarial system, and if you tie the hands of the prosecutors when they go into that arena, it doesn’t serve either public safety or justice,” she said.

Many defense lawyers and legal experts, however, think it’s about time that courts stop warning prosecutors about misconduct and start doing something to stop it.

“There has to be some kind of remedy, some consequences for behavioral errors that occur over and over again,” said Hennepin County Chief Public Defender Lenny Castro. “I don’t think the new standard is unfair at all.”

In Minnesota, prosecutors’ misconduct generally involves improper questioning of witnesses and closing arguments, according to prosecutors and defense lawyers.

Examples are when prosecutors voice their own opinion on the truthfulness of witnesses, appeal to the base emotions of jurors or use facts not introduced in evidence.

The Minnesota Supreme Court isn’t the only court expressing frustration with the issue.

In 2003, the Illinois Supreme Court overturned the convictions of two men given life sentences for their roles in the murder of a Chicago police officer, citing improper prosecutor trial tactics and arguments.

It threatened to overturn more cases to reduce the “alarming frequency” of prosecutor misconduct, which it called “a problem that courts across the country have, for the most part, been unable or unwilling to control.”

Appeals court judges in several states “are starting to wring their hands” trying to find effective ways to discourage prosecutor misconduct, said Peter Joy, a professor at Washington University School of Law in St. Louis.

Some judges have tried shaming misbehaving prosecutors by naming them in court decisions. But they found that it only enhanced the prosecutors’ reputations among peers, “because it shows they are willing to do what it takes to get the ‘bad guy’ … that they’re willing to get down in the gutter,” Joy said.

In most states, even when prosecutor misconduct is found, defendants still carry a heavy burden to prove that their constitutional rights were substantially violated, he said.

Some of the worst examples of misconduct attributed to prosecutors in other states, such as withholding evidence or hiding witnesses from the defense, have not cropped up in Minnesota courtrooms.

Prosecutors also complain that appeals court judges keep adding — after the fact — entries to the list of trial conduct they consider improper.

“Over the years, [judges] have found 20 different ways for prosecutors to commit misconduct in closing arguments. But it’s a little hard to understand how it’s misconduct if you didn’t know that it was wrong,” Anoka County Attorney Robert Johnson said.

County attorneys are upset about what they say is an unwarranted state investigation of Borgen, who is now a district court judge in Moorhead.

In August, the state Supreme Court reversed purported gang member Troy Mayhorn’s 2003 first-degree murder conviction because of what it called Borgen’s “pervasive” and “unprecedented” misconduct when she prosecuted the case.

Borgen’s attorney, Richard Pemberton, a former Minnesota State Bar Association president, said the facts will exonerate her. As a result of the court’s decision, he said, “a very dangerous man” whom Borgen took off the streets is unlikely to be retried.

Prosecutors worry that the Supreme Court’s new misconduct standard will allow defense attorneys to “lay in the weeds” and raise objections on appeal instead of at trial when the judge hearing the case can address them, said Gaertner.

Castro thinks Gaertner’s dire predictions about the impact of the Ramey decision won’t pan out. He recalled how prosecutors were wrong when they predicted in 1994 that a state Supreme Court decision requiring police to tape-record most suspects’ statements would cause problems.

Gaertner said the two decisions aren’t the same. “It’s not as if there was a bright line set down,” she said. “It seems like the line is a wavy one, and we’re not sure where it is.”

The Associated Press contributed to this story. Paul Gustafson • 651-298-1545 • pgustafson@startribune.com 

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