Insight, analysis & opinion from Joe Paduda

Jan
27

What if you were convicted of a crime that wasn’t?

That’s the question Sandy Blunt, former CEO of North Dakota’s state workers comp fund must be asking himself.
Because the most serious charge against Blunt was based on Blunt authorizing sick leave for and not getting expenses repaid by an employee who was terminated. Turns out the North Dakota state auditor had reviewed the situation and given Blunt a pass, and reported as much to prosecutor Cynthia Feland well before she went to trial. In fact, these ‘crimes’ were what enabled Feland to increase the charges leveled against Blunt from misdemeanor to felony status.
Sure, the misdemeanor charges were ludicrous; authorizing the purchase of small gift cards, balloons, and food for employee meetings and celebrations, and a raft of other contrived accusations which together wouldn’t amount to enough to give even the squeaky-cleanest among us any pause. In total, Blunt ‘signed for’ $2,693.15 over three years; all of it with the consent of the fund’s legal and financial departments.
But this is an entirely different situation – this isn’t just piling up a bunch of ridiculous charges in an effort to bring down a CEO, no, this is outright fraud on the part of the prosecutor.
This is a bit complicated, so stick with me here. The players are Cynthia Feland (prosecutor), Sandy Blunt (defendant), Jason Wahl (state auditor), Mr Spencer (ND state fund employee terminated by Blunt), and your faithful author (me).
Here’s an excerpt from communications from Blunt’s attorney and Feland’s office discussing the memo (authored by Wahl) which stated Blunt’s authorization of moving expenses and sick leave for Spencer, was not a violation of state law. First, from Blunt’s attorney to the prosecutor:

(paraphrasing the first part) “the Wahl memo read, in part, “we determined, in consultation with a representative of the Attorney General’s Office, there was not a voluntary resignation”. In the context of the specific allegation of failure to recoup moving expenses of Mr. Spencer, this quoted language is virtually controlling in Mr. Blunt’s favor. In the context of the entire case, its importance would have permeated virtually every aspect of the case, procedurally and substantively.
It is difficult for me to fathom the prosecutors in this case not knowing or not remembering the above quoted language of the memorandum when the decision was made in September, 2008, to add the allegation of failing to recoup the Spencer moving expenses to Count I in this case. How could the State believe that was a legitimate action in the face of the subject language in the memorandum? Rule 3.8(a), North Dakota Rules of Professional Conduct, provides, “The prosecutor in a criminal case shall … refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause”. The subject language of the memorandum, in my opinion, rises to the level of no probable cause for the allegation of failing to recoup the Spencer moving expenses.”

When I got this transcript, I contacted Feland several times over the last few weeks, asked her directly about this situation, and she refused to address the key question – had she provided Blunt with a copy of the State Auditor’s memo which cleared Blunt of any malfeasance related to Spencer?
To her credit, the Prosecutor (who is actually running for District Judge (!!)) initially responded to my queries. Here’s the detail.
From me to Ms Feland on January 16, 2010:
Thanks for the response, but I’m not sure it answered my question. [I had asked in two previous emails if the Wahl memo was provided to the defense] I don’t want to mischaracterize or misunderstand your statement. Specifically, was the Wahl memo of November 2007 provided to the defense? [emphasis added]
Ms Feland’s response on January 19, 2010:
“All information in the Wahl memo has been disclosed to the defense. Given the extra large volume of discovery in the case, I have no way to provide to you the exact date of disclosure of the memo itself. The Wahl memo was also a public record at the auditor’s office. [emphasis added] Therefore, as I stated, there is no issue with it and it is a waste of time.”
Here’s what this means. The prosecutor has no record of providing the defense with a document that would have allowed the defense to prove that the prosecution’s main charge was not a crime. Not only that, but she infers that somehow the defense should have checked with the state auditor? This is incredible, unbelievable, and appalling. What other documents is she unaware of?
In this country, and in North Dakota as well, the prosecution must provide the defense with any and all potentially exculpatory evidence.
That is not a suggestion, or a recommendation, or a ‘if you remember to do it’, it is a legal requirement.
Failing to do so is prosecutory misconduct. The defense is not required to check with the state auditor, the county clerk, the registrar of voters, the town librarian or dog catcher – the prosecutor must turn over any and all information relevant to the case to the defense. Especially if that information destroys a central charge against the defendant.
What in the hell is going on in North Dakota?
And why are they persecuting a guy who’s performance at the ND state work comp fund was exemplary?
Blunt’s case is on appeal at the ND Supreme Court, and he is waiting for their ruling which could come any time. I fervently hope they reverse the charges and reprimand Feland.


2 thoughts on “What if you were convicted of a crime that wasn’t?”

  1. The fact that Feland responded to you, and in such a way, suggests to me that she is aware that the controversy over Blunt’s conviction will negatively impact her current political campaign. And she pretty much concedes she failed to hand over the key exculpatory document.

  2. What I find troubling is the fact the Bismarck Tribune vilified Blunt before and during the trial, but not one word about Ms. Feland not turning over exculpatory evidence. Surly a judge has to know about this by now.

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Joe Paduda is the principal of Health Strategy Associates

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