North Dakota Prosecutorial Misconduct

A study of criminal appeals from 1970 to the present revealed 26 North Dakota cases in which the defendant alleged prosecutorial error or misconduct. In five, judges ruled a prosecutor’s conduct prejudiced the defendant and reversed or remanded the conviction, sentence or indictment. In one, a dissenting judge or judges thought the prosecutor’s conduct prejudiced the defendant.

Four of the reversals involved improper trial arguments and comments, and one involved a prosecutor who misstated the law to the defendant outside the presence of his lawyer.

In April 1999, the state Supreme Court reversed the convictions of Dennis Evans and Brian Barnhardt for conspiracy to deliver drugs because Morton County prosecutor Ladd Erickson told the jury Evans had been identified on a tape recording of the drug transaction. No one identified Evans, so Erickson’s statement was improper and prejudicial because “there were no facts in evidence to support it.” The appellate court ruled that Erickson “gave the jury an improper and convenient hook on which to hang their verdict.”

Erickson said he agrees with the court’s decision.

“Even though the defense attorney invited the comments, they said you still can’t respond that way,” he told the Center. “I was a new prosecutor—looking back, I probably shouldn’t have done it.”

After the court reversed his conviction, Evans pleaded guilty and received probation. Erickson left the Morton County office to run for State’s Attorney in Mclean. He is currently the Mclean County State’s Attorney.

In 1997, the state Supreme Court reversed Glen Hegstad’s conviction for drunk driving. In her closing argument, Williams County prosecutor Cathy Howe Schmitz used Hegstad’s post arrest silence to impeach his credibility. She also said it was the police officers’ job to tell the truth. The state Supreme Court ruled these comments deprived Hegsted of a fair trial and reversed his conviction.

“The prosecutor’s improper closing argument put the government's thumb on the scale and may well have tipped the balance in its favor,” wrote Chief Justice Gerald W. VandeWalle.

Howe Schmitz, who told the Center this is her only reversal in 25 years as a prosecutor, said her comments were taken out of context.

“I can’t imagine that it was reversible error considering everything that went on at the trial,” she said. “Lawyers often see things differently.”  ¶ 12:57 AM