Archive | August, 2012

Rep Accuses Duluth Police of Violating Data Practices Act following Gauthier Arrest

24 Aug

The Duluth News Tribune and the Strib are both reporting on the investigation by a Minnesota House subcommittee into the Duluth Police Department’s record-keeping system in the wake of the Kerry Gauthier investigation. Rep. Peggy Scott, R-Andover, who chairs the house subcommittee on data practices, said in a letter to Duluth Police Chief Gordon Ramsay that the department “appears to have violated the law in order to avoid disclosing public data” in the case.

Scott’s letter said the department “twice failed to comply with requests for public data related to the Gauthier investigation.”

According the the News Tribune, Duluth police said the investigation on Gauthier was categorized in its database as high-profile, meaning that only a few officers in the department knew about it and could see the information. Thus, when the News Tribune initially asked for information on the case, the department responded that none existed. At that time, the officers who did the search didn’t have access to that case, Deputy Police Chief Robin Roeser said.

In her letter to Ramsay, Scott said maintaining public data on “high-profile” cases and keeping those cases separated from others was “highly inappropriate and a clear violation of the Minnesota Government Data Practices Act.”

“By restricting access to public data related (to) incidents involving ‘high profile’ individuals, the Duluth Police Department has created two sets of rules for handling public data,” Scott wrote. “For regular people, requests for data will be processed according to the rules of Chapter 13. For ‘high-profile’ people, the police will decide which data to release and when to release it.”

Scott’s letter can be viewed here. The full text of the MGDPA can be viewed here.


Court of Appeals Upholds Felony Terroristic Threat Conviction for Whispered Statement to Child

15 Aug

In State v. Hershbergeran unpublished opinion released on August 9, 2012, the Minnesota Court of Appeals upheld, among other things, a defendant’s conviction for felony terroristic threats for whispering in the ear of a child that she and her siblings would “have to pay for what [they] did to him.”

The defendant in the case, Tim Hershberger, had previously been convicted of gross-misdemeanor malicious punishment of the children in question, and the court reasoned that, “Given the relationship history and [the child’s] age of eight, it was reasonable for her to interpret Hershberger’s statement as a threat to commit great bodily harm, and Hershberger acted, if not with the purpose of causing such terror, at least in reckless disregard of doing so.”

Under Minn. Stat. § 609.713, “Whoever threatens, directly or indirectly, to commit any crime of violence with purpose to terrorize another . . . or in a reckless disregard of the risk of causing such terror” is guilty of terroristic threats, and to convict on a charge of felony terroristic threats, a jury must find that the defendant threatened “a specific predicate crime of violence,” as listed in Minn. Stat. § 609.1095.

Essentially, the jury, and subsequently the Court of Appeals, found that Hershberger’s whispered words were a threat of a “a specific predicate crime of violence,” namely first-degree assault. Hershberger’s only statements cited in the opinion came from the child’s testimony at trial that Hershberger whispered a statement to her, “saying we have to pay for what we did to him.”

The opinion does not address any First Amendment concerns with the conviction or Minnesota’s terroristic threats statute, neither does it reference any U.S. Supreme Court precedence regarding the Constitutional limitations on criminally actionable threats.

Hershberger was also convicted of felony stalking with intent to injure, and stalking by return to property without consent.


Another Locked Courtroom Deemed Permissible

15 Aug

The Minnesota Court of Appeals released an unpublished opinion on August 13 stating, among other things, that a “district court’s closing of the courtroom door during its final charge to the jury did not implicate [the defendant’s] right to a public trial.”

The opinion, State v. Cook, is another example of a closed courtroom (albeit only during jury instructions) during a portion of a criminal jury trial in Minnesota being upheld by the state’s appellate courts. In the Cook opinion, the court cited a Minnesota Supreme Court opinion from July 2012 for the principle that “a district court does not implicate a defendant’s right to a public trial when the court locks the courtroom doors during jury instructions; the court never clears the courtroom of all spectators; the court tells the people in the courtroom that they are welcome to stay; the court keeps the trial open to the public and press already in the courtroom; the court does not order the removal of any member of the public, the press, or the defendant’s family; and the jury instructions do not comprise a proportionately large portion of the trial proceedings.”

According to the opinion, the closed portion comprised 40 pages of the 2000-page transcript of the trial.