This blog and appendix were originally presented, in slightly different form, on December 14, 2016, to the Minnesota County Attorney Association annual meeting, titled, “In re Olson and State v. Whitcup – A Prosecutor’s Travails and Vindication.” Danielle Olson, the respondent attorney in these proceedings was represented by co-counsel, William J. Wernz and Daniel D. Falknor. Mr. Falknor is an associate at Dorsey & Whitney, LLP.
I. OVERVIEW
A 2016 discipline proceeding against a county attorney, Danielle Olson, raises issues regarding procedures followed and principles advocated by the Office of Lawyers Professional Responsibility (OLPR). In re Olson, File No. A16-0280 (Minn. 2016). In re Olson arises from actions taken by OLPR based on an unpublished opinion, State v. Whitcup, No. A14-1666, 2015 WL 4994398 (Minn. Ct. App. Aug. 24, 2015). Whitcup found, on Olson’s part, a “deliberate and knowing plan to withhold requested discovery materials in order to gain the advantage of surprise,” by not producing letters written by the defendant in a criminal proceeding, Charles Whitcup. The appeals court in effect reversed trial court findings, but the unpublished opinion did not explain its reversal or even acknowledge the contrary trial court findings.
Without any complaint and without independent investigation, OLPR brought disciplinary proceedings against Olson, alleging that the Whitcup appellate findings also constituted violations of Rules of Professional Conduct. OLPR’s main charges were that Olson “knowingly” and “deceitfully” violated Rule 9.01, R. Crim. Proc. At a disciplinary trial before a Minnesota Supreme Court referee, OLPR called Ms. Olson for adverse examination and did not call any other witnesses. Olson presented the testimony of eight witnesses. The referee found that the Whitcup appellate findings were not supported in the Whitcup court records and that OLPR failed to prove its case. The referee recommended dismissal, based on his conclusion that OLPR failed to prove that Olson violated any Rules of Professional Conduct. The Supreme Court dismissed OLPR’s discipline petition upon recommendation of OLPR and Olson.
In re Olson raises important issues of fairness and of proper standards for ethics prosecution.
II. STATE V. WHITCUP – CRIMINAL CASE AND UNPUBLISHED COURT OF APPEALS OPINION
A. Trial Court Proceedings
Swift County Attorney Danielle Olson prosecuted controlled substance criminal charges against Charles Whitcup. Whitcup wrote numerous letters from jail. Some letters coached his girlfriend, Nicole Larson, to give false exculpatory evidence. Other letters appeared to be evidence of possible crimes of witness tampering or intimidation.
Olson received these letters from the jailer. Rule 9.01, R. Crim. Proc., requires the prosecutor to produce materials “that relate to the case,” with certain exceptions. To determine whether any exception applied, Olson did legal research and consulted with three other prosecutors. Attorneys Stacy Vinberg and Rebecca Trapp told Olson they believed that the exception to Rule 9.01 for materials related to other crimes applied. Harry Hohman, an assistant in Olson’s office, on whom Olson had long relied for his knowledge of the law, advised Olson that case law created an exception to Rule 9.01, for “rebuttal evidence.” Hohman’s research for a prior case had disclosed State v. Yang, 627 N.W.2d 666, 677 (Minn. Ct. App. 2001), on which Hohman’s position was based. (Hohman and Olson cannot remember whether Hohman’s advice, before the Whitcup trial, including actual citation to Yang or only his memory of the Yang holding.) Based on her research and consultations, Olson did not produce the Whitcup letters.
Whitcup’s lawyer, John Mack, called Nicole Larson to testify. Larson testified as she had been coached by the Whitcup letters. In cross-examination, Olson used the letters to impeach Larson. Mack did not object until after testimony closed for the day. The Hon. Dwayne Knutsen ordered the letters produced. Whitcup was convicted. Mack moved for a new trial. At argument on the motion, Mack stated, “Now, I’m not quarreling with the prosecution’s good faith here. They had Yang so they at least had an argument that they could do this sort of thing [not produce the letters] . . . .”
Judge Knutsen found (1) Olson did not act in bad faith, (2) the Whitcup letters were “just that,” i.e. “rebuttal evidence” (though not solely rebuttal evidence), (3) Minnesota law did not determine whether the letters must be produced, and (4) based largely on foreign law, Rule 9.01 was violated. Yang recognizes the trial court’s “almost entire discretion” to determine rebuttal evidence. Judge Knutsen denied the motion for new trial. Whitcup appealed.
B. Whitcup Appeals Court Opinion
The Court of Appeals reversed, finding that Olson deliberately, inexcusably, and knowingly failed to produce the Whitcup letters. The unpublished opinion was, however, affected by several errors and shortcomings.
1. The opinion did not provide any explanation or citation to the record to support its findings regarding Olson’s state of mind. The Court of Appeals is not a fact-finding court, but the Whitcup opinion made a de novo finding that Olson’s purported violation of Rule 9.01 was knowing and intentional. In the Whitcup proceedings, there was no evidentiary hearing regarding Olson’s state of mind. As the Supreme Court referee found after Olson’s discipline trial, “This Referee found no evidence in the trial record to support the Court of Appeals' statements. . . If the opinion pointed to some facts ignored by the trial judge to reach the conclusions it did about the respondent, it would make sense but it did not.”
2. The Whitcup opinion did not mention or take account of the trial court’s exculpatory findings. As the referee later found, “Why the Court of Appeals chose to ignore the comments of the trial judge relating to respondent's conduct during the trial is a mystery to this Referee.”
3. The opinion’s central conclusion of law was that the Yang exception did not apply because, “Here the prosecutor did not rebut N.L.’s testimony; she impeached N.L.’s credibility with the letters.” As explained in the extracts from the Olson referee brief (see Appendix), however, this conclusion is not persuasive because (a) numerous cases, and the trial court in Whitcup, regard some evidence as both impeachment and rebuttal; (b) Whitcup used the terms “rebuttal,” “rebuttal evidence” and “rebut,” but the definitions of these terms in the sources cited by Whitcup are materially different, e.g. according to Black’s Law Dictionary, to “rebut” has the very broad synonyms, to “counteract” or to “oppose;” (c) “almost entire” deference is due the trial court’s determination of “rebuttal evidence,” but no evidence of any deference is indicated in the unpublished opinion. At Olson’s disciplinary trial, both Olson and OLPR elicited evidence that the law regarding rebuttal evidence is “murky.”
4. The law is that a trial court's determination should be reversed on appeal only when the prosecutor's misconduct, “viewed in the light of the whole record, appears to be inexcusable and so serious and prejudicial that [the] defendant's right to a fair trial was denied.” State v. Wahlberg, 296 N.W.2d 408, 420 (Minn.1980). Because there is normally no evidentiary hearing in the trial court as to the prosecutor’s state of mind, what “appears to be” the case is the proper subject of an appellate determination. In Whitcup, however, the appellate court made a de novo finding of what purportedly actually was the prosecutor’s state of mind.
III. OLPR FAILS TO INDEPENDENTLY INVESTIGATE
No ethics complaint was filed with OLPR. Based on the Whitcup opinion and OLPR’s request, the Lawyers Board Executive Committee authorized OLPR to investigate Olson’s conduct. Instead of investigating, however, OLPR rushed to formal Charges of Unprofessional Conduct.
OLPR obtained Olson’s written response to its Notice of Investigation. OLPR reviewed Whitcup court records. However, OLPR did not follow its normal procedures of interviewing the respondent attorney, or any of the witnesses Olson identified.[i] Although OLPR alleged, in effect, that Olson intentionally deceived Whitcup’s lawyer, Mack, OLPR did not interview Mack, to determine whether Mack regarded himself as having been deceived and why Mack stated in court that, based on Yang, it did not appear Olson acted in bad faith. Instead, OLPR issued Charges of Unprofessional Conduct.[ii]
OLPR appears to have limited its investigation and issued its Charges based almost entirely on the Whitcup court records and the holdings of the Whitcup unpublished opinion.[iii] OLPR appears not to have given any consideration to fundamental matters, discussed below: (i) the trial court’s exculpatory findings; (ii) whether charges of knowing and deceitful misconduct could be proved by clear and convincing evidence; (iii) Olson’s research and consultation with other lawyers; (iv) Mack’s statements; and (v) the Whitcup opinion’s obvious infirmities.
Why did OLPR deviate from its standard procedures and apparently ignore crucial evidence? As explained below, OLPR took a position that was clearly at odds with a Minnesota Supreme Court holding. OLPR maintained that Olson was precluded from “relitigating” court determinations in Whitcup. Thus, OLPR’s Charges, and later its public petition, and even OLPR’s proposed findings, recited that Whitcup found that Olson knowingly violated discovery rules, rather than alleging such a violation based on evidence and OLPR’s own determination.
After Charges were issued, the author began representing Olson, on a pro bono basis. Later in the proceedings, Dorsey & Whitney (through Mr. Falknor) appeared as co-counsel, also on a pro bono basis. The decisions to provide pro bono representation were based on counsel’s belief that OLPR’s allegations had no support in the evidence and OLPR was proceeding in a summary and unfair manner.
IV. VAGUE CHARGES OF DISHONESTY AND KNOWING RULE VIOLATION
The Court has repeatedly urged the Director to plead with specificity, “Although we believe the Director did not violate Respondent’s right to due process of law, we caution the Director’s Office in the future to draft its charges with specificity.” In re Keate, 488 N.W.2d 229, 233 (Minn. 1992). The common law requires special specificity when fraud and the like are alleged. In Olson, however, OLPR’s charges were far from specific.
A. Rule 8.4(c) Charge (“Dishonesty, fraud, deceit or misrepresentation”)
One of OLPR’s main charges was that Olson violated Rule 8.4(c). Although Rule 8.4(c) prohibits “dishonesty, fraud, deceit, or misrepresentation,” OLPR’s charges and petition did not allege any of these terms. The Supreme Court explained its dismissal of a Rule 8.4(c) charge in another case in terms that apply to Olson, “We agree with Stanbury that Minn. R. Prof. Conduct 8.4(c) does not apply. The Director did not aver dishonesty, fraud, deceit, or misrepresentation in the petition for disciplinary action.” In re Stanbury, 561 N.W.2d 507, 510 (Minn. 1997). Keate, Stanbury and these pleading defects were cited in Olson’s Lawyers Board panel brief, yet the subsequent Petition for Disciplinary Action in the Supreme Court was no more specific than the Charges submitted to a Lawyers Board panel.
Remarkably, none of the words “dishonesty, fraud, deceit, or misrepresentation” appeared in the findings and conclusions which OLPR proposed to the referee. OLPR’s proposals recited what Whitcup “said,” but Whitcup did not use any Rule 8.4(c) words.
The referee and the respondent attorney should be able to determine, from OLPR’s charges and petitions, the nature and predicate for a charge bearing on fundamental honesty. OLPR’s pleadings fall far short of these requirements.
B. Rule 3.4(C) Charge (“Knowing” Violation of Rule 9.01, R. Crim. Proc.)
OLPR’s central charge was that, by not producing the Whitcup letters, Olson knowingly violated Rule 9.01 and thereby violated Rule 3.4(c), “A lawyer shall not knowingly disobey an obligation under the rules of a tribunal . . . .” (emphasis added). “Knowing,” is a term that, “Denotes actual knowledge of the fact in question. A person’s knowledge may be inferred from circumstances.” Rule 1.0(g).
Three comments, explicating “knowledge,” state that inference must be based on that which is “obvious.” Rule 1.13 cmt. 3 (“A lawyer cannot ignore the obvious”); Rule 3.3 cmt. 8 (“the lawyer cannot ignore an obvious falsehood”); Rule 4.2 cmt. 8 (the lawyer cannot evade a consent requirement “by closing eyes to the obvious.”). These standards are akin to the criminal law doctrine of “blind eye” ignorance. OLPR’s pleadings did not aver a basis for inferring actual knowledge.
To prove a Rule 3.4(c) violation, OLPR had to demonstrate that Olson closed her eyes to a purportedly obvious legal requirement that the Whitcup letters be produced, notwithstanding the rebuttal evidence exception and Olson’s consultations with other prosecutors, especially Hohman. Olson had found Hohman expert and reliable over the years of their professional relationship. Several defense witnesses, including an expert, testified that the law relating to “rebuttal evidence” and Yang, far from being “obvious,” was “murky.” OLPR did not offer any witnesses or evidence to the contrary.
A requirement to produce the letters could not be obvious when the trial judge found that the letters were “rebuttal evidence” (though not “solely rebuttal evidence”), that Olson acted in good faith, and that, “The Court could not find a Minnesota case analyzing whether the state must disclose the type of letters at issue here.” OLPR acknowledged “the issue in this matter is whether respondent had a good faith belief that the letters were genuine rebuttal evidence,” but did not even mention the trial judge’s finding and Mack’s acknowledgement that Olson acted in good faith.
V. OLPR’S ISSUE PRECLUSION ARGUMENTS
Public discipline proceedings begin (or end) with determination by a Lawyers Board panel of whether there is “probable cause” to believe public discipline is warranted. Panel proceedings are normally based on the parties’ filings, without testimony, oral argument, or reply briefs. One of OLPR’s main arguments to the panel was that Olson was precluded from “relitigating” determinations made in the Whitcup proceedings.
OLPR’s brief to the Board panel argued for issue preclusion: "Respondent appears to wish to challenge or relitigate decisions of Judge Knutsen and the Minnesota Court of Appeals, * * * Although the opinion in State v. Whitcup is unpublished, it is a final decision that is not subject to further review." OLPR gave a specific example of issues that Olson purportedly was forbidden by law to litigate, "the holding that the letters 'cannot be classified as rebuttal evidence not subject to disclosure.'" OLPR advocated that Olson was barred - by a novel preclusion doctrine for which OLPR invented the label, "final decision"- from "relitigating" or “challenging” issues in Whitcup. OLPR applied this novel doctrine to all "decisions" of Whitcup, not just the ultimate decision reversing Whitcup's conviction.
OLPR’s argument that Olson could not “relitigate” Whitcup holdings is directly contrary to a Minnesota Supreme Court holding that in discipline proceedings, it is "improper" to try to prevent a lawyer from "relitigating" issues determined in civil proceedings.
A plaintiff who asserts collateral estoppel "to prevent a defendant from relitigating an issue previously decided against the defendant" is using "offensive collateral estoppel." Black's Law Dictionary 279 (8th ed.2004) (defining "offensive collateral estoppel"). We have said that offensive collateral estoppel is improper in disciplinary proceedings. See Morris, 408 N.W.2d at 862-63. But, we allow a referee to independently consider the transcripts and other documentation from prior proceedings involving the attorney misconduct. Id. at 863.
In re Murrin, 821 N.W.2d 195, 205 (Minn. 2012) (emphasis added).[iv]
The Panel found probable cause and OLPR filed a public Petition for Disciplinary Action against Olson. The Petition, like the Charges, relied almost entirely on Whitcup.
During proceedings before the referee, OLPR recanted its panel position that Olson could not “relitigate.” The parties entered into a stipulation, providing that Whitcup is not preclusive or precedential in the discipline case. The parties agreed that the unpublished opinion at most may have persuasive weight. However, OLPR later attempted to limit its recantation. In an Answer to Interrogatory, OLPR – without any basis in law - maintained that, although Olson was not “precluded from challenging the rulings of the district court and court of appeals in State v. Whitcup,” Olson “may not ‘relitigate’ the court’s rulings in State v. Whitcup . . ..”
VI. PROCEEDINGS BEFORE SUPREME COURT REFEREE
The Supreme Court appointed Judge Peter Irvine to act as its referee, conduct a trial, and make findings, conclusions and a recommendation as to disposition. A two day trial was held before Judge Irvine. OLPR had the burden of proving the alleged facts and rule violations by “clear and convincing evidence.”
OLPR called Olson as an adverse witness, but did not call any other witnesses. Numerous documents were also received in evidence, by stipulation of the parties. If – as OLPR belatedly came to concede – the Whitcup opinion was not preclusive, OLPR had to prove Olson’s alleged guilty state of mind from the ground up. When OLPR rested its case after Olson’s testimony and introducing documents, OLPR had failed to present any substantial evidence.[v]
Olson called seven fact and opinion witnesses – herself, the three prosecutors with whom she consulted, two public defenders, and a judge (Hon. David Mennis) before whom she regularly appeared. They testified, without contradiction, to Olson’s regular practice of producing all required discovery. The prosecutors testified to their advice that Rule 9.01 did not require production of the Whitcup letters. Olson acknowledged that, in hindsight, the “better practice” would have been to produce the letters.
The referee found, “The testimony of Ms. Nordmeyer and Mr. Tangen are of particular importance because these two are public defenders and have been the recipients of the respondent's discovery over the years and had only praise for her and the way she handles her responsibility as a prosecutor.” It is difficult to understand why OLPR would not interview such witnesses before issuing formal discipline charges, if, like the referee, OLPR wished to determine the facts.
The referee also noted well the following testimony of Stacy Vinberg, with whom Ms. Olson consulted on the matter, "from my years of knowing her and interacting with her on both a professional level and personal level, I believe that Ms. Olson would never intentionally violate any rules knowing that what she was doing would be a violation- be it ethical, statutory, or otherwise. * * *
What that [Ms. Olson’s consultation with Ms. Vinberg] indicates to me is that if there was a rule violation, it was not intentional." Again, it is difficult to understand why OLPR would not take account of the opinion testimony of this witness – especially because Ms. Vinberg became Chair of the Lawyers Board shortly before the trial.
Olson also called an expert witness, Robert Small. Small’s long career included extensive experience as a prosecutor and as a judge. Small was also an adjunct professor of evidence. OLPR moved to exclude Small’s testimony, on the grounds that no expert testimony was needed. After briefing and oral argument, the motion was denied. Small testified to subjects including the reasonableness of Olson’s consultations and determinations, and as to the murkiness of the law regarding the rebuttal evidence exception to Rule 9.01.
OLPR’s cross-examination of several of Olson’s witnesses included eliciting opinion testimony. Was the unpublished opinion in State v. Whitcup erroneous as to Olson’s state of mind? Judge Mennis and a public defender opined it was. Was Olson’s representation that she produced all documents misleading? Ms. Trapp explained why the representation was not misleading. Did Olson’s reliance on Mr. Hohman relieve her of responsibility? Mr. Small answered in the negative, but also opined that her reliance was reasonable. Did Olson act in good faith and without intent to deceive? In documents offered into evidence by OLPR, Ms. Vinberg and Mr. Mack gave affirmative answers, as did Judge Mennis and a public defender on cross-examination.
OLPR did not present any direct evidence that Olson knowingly and deceitfully violated Rule 9.01. Instead, OLPR attempted to argue Olson’s guilty state of mind by inference from circumstances. For the inference that Olson knowingly violated the law, OLPR first had to demonstrate, by clear and convincing evidence, that it was “obvious” that the letters were not rebuttal evidence or that Yang was not good law. The determination of Judge Knutsen, the trial judge, that the letters were “just that” (i.e. rebuttal evidence) was just one of the insuperable hurdles to a demonstration of obviousness.
In its post-trial filings, OLPR acknowledged aspects of Olson’s conduct that were inconsistent with OLPR’s own charges. Thus, OLPR’s referee brief characterized Olson’s consultation with prosecutors as, on one hand, “reasonable” and “prudent,” and on the other hand, as “inappropriate” (for excessive reliance on Hohman’s advice) and a “serious error in judgment.” These characterizations are obviously inconsistent with charges of knowing and deceitful misconduct. Nonetheless, OLPR urged the referee to find such misconduct.
OLPR also proposed a referee finding that Whitcup “said” Olson acted “knowingly,” and “deliberately.” What the Court of Appeals “said” was, of course, indisputable. What mattered was whether OLPR proved by clear and convincing evidence that Olson “knowingly” and “deliberately” violated the law. However, OLPR asked the referee only to find what Whitcup said, as if that were the end, rather than the beginning, of the inquiry. Having stipulated, in deference to Murrin, that Whitcup was at best “persuasive” authority, OLPR appears not to have recognized that a finding as to what Whitcup “said” would be literally that and only that, and would fall far short of proof of Olson’s actual state of mind.
OLPR’s main argument was that Olson’s guilty state of mind could be inferred from her allegedly changing and inconsistent legal arguments as to why production of the letters was not required. However, Olson’s primary reliance on Yang’s rebuttal evidence exclusion was supported by her testimony, that of Mr. Hohman, an express finding of Judge Knutsen and numerous documents.
The referee found OLPR failed to prove its allegations and that Olson acted in good faith. As to State v. Whitcup, the referee stated that, after reading the court record several times, “This Referee found no evidence in the trial record to support the Court of Appeals’ statements. Why the Court of Appeals chose to ignore the comments of the trial judge relating to respondent’s conduct during the trial is a mystery to this Referee.” The referee also stated, “If the opinion pointed to some facts ignored by the trial judge to reach the conclusions it did about the respondent, it would make sense but it did not.”[vi]
The referee, unlike OLPR, reviewed the Whitcup record with a critical, as well as a careful, eye. The referee could not find any support there for the opinion’s characterizations of Olson’s state of mind. The referee took great interest in witness testimony. His Findings and Conclusions include numerous citations to the testimony of Olson’s witnesses. The referee expressly made credibility and materiality determinations regarding this testimony. OLPR only briefly and belatedly interviewed any witnesses.
OLPR’s actions were not only unfair to Olson, they involved ineffective advocacy. OLPR failed to recognize, from the beginning, and to the end, that Whitcup was at best persuasive authority and that specific evidence of Olson’s state of mind was required to sustain OLPR’s allegations.
VII. FAIRNESS ISSUES
OLPR’s discipline petition, citing a Minnesota Supreme Court case, stated, “The role of the prosecutor and [district] court is not simply to convict the guilty[;]they are also responsible for providing a fair trial.” In addition a rule provides, “It is of primary importance . . . that cases of lawyers’ alleged disability or unprofessional conduct be promptly investigated and disposed of with fairness and justice, . . ..” Rule 2, R. Law. Prof. Resp.
OLPR’s acts and omissions in In re Olson raise several issues relating to fairness.
1. OLPR failed to interview Olson or any witness until after a public petition was filed. OLPR took Olson’s deposition and briefly interviewed some of Olson’s witnesses shortly before trial, apparently for trial preparation purposes, rather than to determine the facts. To fairly evaluate a possible charge of unprofessional conduct, OLPR should consider all material evidence, not just evidence it believes support a charge. To its credit, after the Olson proceedings, OLPR adopted a policy by which it would not issues charges without first having interviewed the respondent attorney.
2. OLPR ignored exculpatory trial court findings in the underlying criminal matter, including that Olson acted in good faith and that Minnesota law did not determine the issue in question. OLPR did not even attempt to explain to the referee how these findings comported with OLPR’s misconduct allegations.
3. OLPR charged Olson with violating Rule 8.4(c) (“dishonesty, fraud, deceit or misrepresentation”) without any specification in the Charges, the Petition or even the opening statement at trial, of the conduct or state of mind allegedly constituting a violation.
4. OLPR informed a Lawyers Board Panel that Olson could not relitigate the holdings of an unpublished Court of Appeals opinion regarding her conduct, because of its finality. However, finality is not a doctrine that applies collaterally, that is in another case. The law is and was clear that Whitcup was not in any way preclusive in the discipline proceeding. OLPR’s misstatement of the law is especially problematic in a proceeding in which OLPR accused a lawyer of knowingly violating the law.
5. In re Olson is also noteworthy for OLPR’s attempted expansion of public discipline exposure for prosecutors and other lawyers. OLPR argued that what OLPR called a “serious error in judgment” was a sufficient basis for finding that Olson’s conduct involved “deceit” and “actual knowledge” that she was violating a discovery rule. OLPR also appeared to argue that even if Olson was found not to have intended to violate a discovery rule, “deceit” and “actual knowledge” could be found, as predicates for violations of Rules 8.4(c) and 3.4(c), R. Prof. Conduct.
VIII. OLPR’S ATTEMPT TO EXPAND DISCIPLINE EXPOSURE
In Olson, OLPR attempted to expand disciplinary exposure for prosecutors and for all lawyers.
No Minnesota county attorney has been publicly disciplined for violating a procedural rule except when the violation was found to be a “knowing” one. Rule 3.4(c); In re Morris, 419 N.W.2d 70 (Minn. 1987); In re Evans, 461 N.W.2d 226 (Minn. 1990). Although “knowing” means “actual knowledge,” in Olson OLPR argued for a diluted finding, in which “actual knowledge” was based on a “serious error in judgment,” without any improper intent.
An interrogatory asked OLPR to “Quote, and identify the source of, each statement by respondent which OLPR contends supports OLPR’s allegation that respondent acted knowingly, in violating discovery law, and thereby violated Rule 3.4(c), MRPC.” Eighteen of the nineteen paragraphs of OLPR’s response cited transcripts in which Olson had said that she had impeached Larson by using rebuttal evidence. The theory of OLPR and of the Whitcup opinion was that evidence must either be impeachment or rebuttal and could not be both. However, the law is otherwise. In the Whitcup proceedings, Judge Knutsen referred to using rebuttal evidence to impeach. More importantly, Olson’s referee brief cited numerous Minnesota Supreme Court and Court of Appeals cases using locutions similar to Olson’s, combining “impeach” and “rebuttal evidence.”
OLPR’s second response to this interrogatory was extremely general, “State vs. Whitcup, May 15-16, 2014, transcript of proceedings at 170-221. Various discussions of the Whitcup letters.”
As noted above, in post-trial filings, OLPR characterized Olson’s consultations are “reasonable and prudent,” but that her “total reliance” was “inappropriate,” i.e. a “serious error in judgment.” These characterizations are inconsistent with a charge of “knowing” violation of the law, which OLPR urged on the referee. If OLPR’s new, diluted standards for the “actual knowledge” requirement of Rule 3.4(c) were adopted, Minnesota lawyers would have enhanced exposure to Rule 3.4(c) charges.
In the Petition and in post-trial briefing, OLPR’s primary precedent was an unpublished, never-cited reprimand, imposed summarily, pursuant to stipulation. In re Fink, 2008 WL 11186118 (Minn. Sept. 25, 2008). Fink (an assistant county attorney) admitted, and the Court found, violations of Rules 3.4(c) and 8.4(d), as well as Rule 3.3(a)(1) (knowingly failing to correct a false statement of material fact to a tribunal). However, the stipulation noted that a special investigator, retained by Fink’s office, concluded there was “no evidence from which one could reasonably conclude that respondent knowingly and intentionally concealed information in an attempt to mislead either the court or defense counsel.”
If the stipulation is given any weight, Fink seems to have knowingly violated discovery law, and knowingly failed to correct a false statement, without, however, knowingly and intentionally attempting to mislead anyone. The Supreme Court has rejected stipulations in which one term is inconsistent with another. In re Riehm, 2016 WL 4051508 (Minn. July 27, 2016); In re Todd, 359 N.W.2d 24 (Minn. 1984). The Fink stipulation appears to be the product of settlement negotiations that may or may not have resulted in a coherent description of Fink’s conduct.
OLPR argued to the referee that Fink’s conduct was “more analogous” to Olson’s conduct than to the conduct of Morris. However, to the Lawyers Board Panel, OLPR had previously argued, at length, that Olson’s conduct was “similar” to that of Morris, who admitted “knowing” violations of law. OLPR did not cite Fink to the Panel.
Evidence at the referee hearing plainly indicated OLPR could not prove that Olson’s conduct was similar to that of Morris, so OLPR resorted to Fink, as its new chief authority. OLPR’s argument seemed to be that the referee could find that Olson somehow knowingly violated discovery rules, without having intended to do so, but instead committed a “serious error in judgment.” This is incoherent.
When an ethics prosecutor charges a lawyer with knowingly and deceitfully violating the law, the pleadings and authorities should be specific, clear and detailed. By these standards and the Court’s pronouncements in Stanbury and Keate (above), OLPR’s pleadings and arguments in Olson fall far short. In Olson, OLPR attempted to persuade the referee to substitute allegations and standards that were, at best, vague, general and unclear. If OLPR had succeeded in Olson, Minnesota lawyers would face new, indeterminate exposures to grave discipline charges.
IX. CONCLUSION
OLPR should not be faulted for obtaining authority to investigate Ms. Olson’s conduct, based on the Whitcup opinion. OLPR should, however, be faulted, for rushing to accusation, rather than actually investigating in a fair and thorough way.
OLPR’s petition cited Whitcup’s reminder of, “the prosecutor's obligation ... to guard the rights of the accused as well as to enforce the rights of the public.'” As noted above, “fairness and justice” are the values which are “of primary importance” in discipline proceedings. The observations above raise substantial questions as to OLPR’s compliance in this matter with the primary values and with the ethics prosecutor’s obligations to the accused.
From the perspective of an attorney with long experience with the discipline system, the Olson case represents a serious failure by OLPR to meet its own standards of practice. It appears that OLPR is normally fair, it normally investigates thoroughly, and it does not normally have its public petitions entirely dismissed. OLPR will no doubt learn from its mistakes, as we all should.
[i] “Appears” and cognates are used frequently in this article, because I do not have access to OLPR’s internal discussions, memoranda and thought processes. However, solid evidence is often available. Olson posed interrogatories to OLPR, including one asking for “all information” obtained by OLPR from persons not affiliated with OLPR or the Lawyers Board. In response, OLPR disclosed that it obtained Olson’s response to notice of investigation and appellate briefs from Whitcup’s lawyer, and that it received a letter from Mack. OLPR’s answer was never updated.
[ii] Such Charges commence a non-public proceeding before a Lawyers Board hearing panel, to determine whether there is “probable cause” to believe public discipline is warranted.
[iii] “Appears” is used here because the author does not have access to OLPR’s work product or thoughts, to determine with certainty the basis for various OLPR acts and omissions. However, OLPR’s Answers to Interrogatories provided substantial information regarding OLPR’s positions and the limits on OLPR’s investigation.
[iv] Because the same Director and trial attorney appeared for OLPR in Murrin and Olson, the Murrin holding’s limitation on any use of Whitcup should have been obvious to OLPR.
[v] Olson could not make a motion to dismiss, because the referee’s authority is only to recommend as to the ultimate disposition. As a matter of strategy, it was also best for Olson to put her own considerable evidence into the record.
[vi] Referee Finding 26.
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APPENDIX - DANIELLE OLSON’S POST-TRIAL BRIEF TO THE REFEREE (EXTRACTS RE COURT OF APPEALS OPINION IN STATE V. WHITCUP)
I. Applicable Discovery Law
A. Rule 9.01 and Rebuttal Evidence Exception
Minnesota criminal discovery law is characterized by a broad production requirement and a broad exception. Rule 9.01 broadly requires production of “all matters within the prosecutor’s possession or control that relate to the case,” with certain exceptions. Ex. 29. However, a categorical exception applies, “Disclosure rules do not apply to rebuttal evidence.” State v. Yang, 627 N.W.2d 666, 677 (Minn. Ct. App. 2001) (citation omitted). Ex. 33.[1] The Supreme Court defines “rebuttal evidence” as “that which explains contradicts, or refutes the defendant’s evidence.” Id. (citing State v. Swanson, 498 N.W.2d. 435, 440 (Minn. 1993)). “Rebuttal evidence” is subject to broad interpretation, “The determination of what constitutes proper rebuttal evidence rests almost entirely in the discretion of the district court.” Id. (citing State v. Brown, 500 N.W.2d 784, 788 (Minn. 1993)).
B. Rebuttal Evidence “Explains”
Ms. Olson, Mr. Hohman and Mr. Small all testified that they regarded Ms. Olson’s use of the Whitcup letters as rebuttal evidence, because it explained N.L.’s testimony as having been coached. Without expressly using the word “explain,” Judge Knutsen had the same view. Ex. 17 at 5.
Minnesota appellate courts have interpreted the term “explain” in the context of rebuttal evidence and other rebuttals. To explain is “to provide context for” a person’s statements. State v. Viverette, 2015 WL 3823019, at *12 (Minn. Ct. App. June 22, 2015), review denied (Aug. 25, 2015). To explain is also “to explain away” (that is, to minimize the significance of) statements on behalf of an opposing party. Olson v. St. Joseph's Hosp., 281 N.W.2d 704, 708-09 (Minn. 1979) (citing Hestbeck v. Hennepin Cty., 297 Minn. 419, 424, 212 N.W.2d 361, 365 (1973)); Diver v. Diver, 2004 WL 2050541, at *3 (Minn. App. Sept. 14, 2004). Similarly, in ordinary English to “explain” is “to provide reasons for,” and “to dismiss or minimize the significance of (something).” Explain, American Heritage Dictionary (3rd ed. 1992).
Undeniably, Ms. Olson’s use of the letters provided context and reasons for, minimized the significance of, and explained away, N.L.’s testimony, as having been coached. In a word, the letters explained N.L.s testimony and thereby qualified as rebuttal evidence.[2]
C. False Dichotomy - Rebuttal Evidence and Impeachment are Overlapping Categories, not Entirely Separate
The unpublished Whitcup opinion and the Director advocate a false dichotomy - that rebuttal evidence and impeachment are wholly separate categories. Under Minnesota law, however, the categories are overlapping. The degree to which they overlap depends on which of many synonyms for “rebuttal evidence” and “rebut” are used.
Synonyms for “rebut” include using evidence to “counteract” and “oppose.” Ex. 108. When these synonyms are used, the degree of overlap between “impeachment” and “rebut” is very high, because all successful impeachment counteracts and opposes an opponent’s evidence.
When the synonym “explain” is used for “rebuttal evidence,” the explication of “explain” above shows that the degree of overlap with impeachment is also high. Whitcup’s counsel, Mr. Mack, acknowledged in open court that “explain” is so broad a term that the Yang exception for rebuttal evidence would swallow Rule 9.01 because, “Just about any statement of any witness explains testimony of a witness.” Ex. 16 at 4.
Minnesota courts have used “rebuttal evidence” and “impeachment” in overlapping ways. For example, the Minnesota Supreme Court has referred to impeachment evidence as a type of rebuttal evidence:
The ‘determination of what constitutes proper rebuttal evidence rests almost wholly in the discretion of the trial court.’ The cross-examination at issue was certainly probative because it tended to rebut Defendant’s testimony on direct that she loved her daughter and would not do anything like the crime charged. Although the questioning may well have been prejudicial toward Defendant, it was no more prejudicial than most other forms of impeachment.
State v. Brown, 500 N.W.2d 784, 788 (Minn. 1993) (emphases added) (internal citations omitted).
Numerous Minnesota cases use “rebuttal evidence” and “impeachment” in overlapping ways, as did Brown, Judge Knutsen and Ms. Olson. State v. Gabler, 294 Minn. 457, 457-58, 199 N.W.2d 439, 440-41 (1972) (“[D]efendant's admission of guilt was offered in rebuttal to his own testimony that he did not commit the crime. Statements in the nature of confessions are admissible to impeach a defendant's testimony though no Miranda warning was given.”); Hounsell v. Comm'r of Pub. Safety, 401 N.W.2d 94, 95 (Minn. Ct. App. 1987) (“offered rebuttal evidence to impeach the credibility of those results”); State v. Johnson, 289 Minn. 346, 348, 184 N.W.2d 660, 661 (1971) (impeachment evidence “contradicts”); State v. Jackson, No. C4-91-1583, 1992 WL 130468, at *2 (Minn. Ct. App. June 16, 1992); State v. Kolb, No. CX-96-862, 1996 WL 469340, at *1 (Minn. Ct. App. Aug. 20, 1996) (“the state may then seek to introduce rebuttal evidence of an impeaching nature.”); State v. Van Zandt, No. CX-95-1502, 1996 WL 250518, at *1 (Minn. Ct. App. May 14, 1996) (“Rebuttal evidence is not limited to impeachment by cross-examination but may include extrinsic evidence.”); Tanberg v. Nw. Bell Tel. Co., No. C6-93-1251, 1994 WL 71352, at *4 (Minn. Ct. App. Mar. 8, 1994) (“At best, the rebuttal testimony was of an impeaching nature only.”).
The Director’s false dichotomy, between impeach and rebuttal evidence, is not supported by Minnesota law. The law does not support the Director’s apparent view that whenever Ms. Olson used “impeach” to describe her use of the Whitcup letters, she was purportedly admitting that she did not use the letters as rebuttal evidence.
The unpublished Whitcup opinion also noted, merely parenthetically, without drawing any conclusion, that one case analyzes rebuttal evidence “as evidence introduced after close of defendant’s case-in-chief to rebut defense testimony.” Ex. 34 at *3. However, the general definition of “rebuttal evidence” applies to the type of evidence, not to the time during trial when the evidence is introduced. And the case law cited above includes cases in which Minnesota appellate courts regarded as rebuttal evidence that which was introduced before close of the defendant’s case-in-chief.
At various times, the Director has stated other inaccurate views of “rebuttal evidence,” for example that evidence must be “true” to be rebuttal. A hypothetical will show the error of this position. Suppose that two friends of N.L. had separate communications from N.L, one stating N.L. was in Winona at the time of Whitcup’s drug buy, the other stating she was in Chicago at the same time. On direct examination, N.L. had stated she was in Benson at the time. At least two of these three statements by N.L. must be false, but the prosecution may introduce the Winona and Chicago communications through the friends as rebuttal evidence.
D. The Director’s Attacks on Yang
The Director contends and suggests that Yang is not reliable authority for several reasons. These reasons are obviously incorrect and meritless.
First, the Director contends that the holding of Yang, that discovery rules do not apply to rebuttal evidence, is mere dictum. As a matter of law, the Director is wrong.
“Dicta,” or more properly “obiter dicta,” generally is considered to be expressions in a court's opinion which go beyond the facts before the court and therefore are the individual views of the author of the opinion and not binding in subsequent cases. Where, however, two or more issues are before the court and are argued by counsel, and the court places its decision on both even though a decision on one issue might have been sufficient to dispose of the case, the decision is equally binding as to both issues.
State ex rel. Foster v. Naftalin, 246 Minn. 181, 208, 74 N.W.2d 249, 266 (1956). Yang did just that – rested its decision on two rationales, even though the first rationale, as the Director argued, might have been sufficient for disposition. Naftalin cited a U.S. Supreme Court case:
[W]here there are two grounds, upon either of which the judgment of the trial court can be rested, and the appellate court sustains both, the ruling on neither is obiter, but each is the judgment of the court, and of equal validity with the other. Whenever a question fairly arises in the course of a trial, and there is a distinct decision of that question, the ruling of the court in respect thereto can, in no just sense, be called mere dictum.
Union Pac. R. Co. v. Mason City & Ft. D.R. Co., 199 U.S. 160, 166 (1905).
The Director also fails to explain how knowledge that Yang’s holding is purportedly dictum could be imputed to Ms. Olson. The Director’s uninformed views on dictum are not shared by a leading treatise on criminal law, nor even by the unpublished opinion. Ex. 107 ¶ F., Ex. 34.
The Director suggests various critiques of Yang, including its reasoning, its reliance on precedent, the absence of any Supreme Court citation of Yang, etc. All of these come to nothing, because – unlike State v. Whitcup – Yang is a published case and thereby is the law. When published Court of Appeals cases are not subject to a petition for review, they become binding and precedential. Sefkow v. Sefkow, 427 N.W.2d 203, 213 (Minn. 1988); Hoyt Inv. Co. v. Bloomington Commerce & Trade Ctr. Assocs., 418 N.W.2d 173, 176 (Minn.1988). For Rule 3.4(c) purposes, Yang is as much the law as is Rule 9.01.
E. “Rebuttal Evidence,” “Proper Rebuttal Evidence,” and “Genuine Rebuttal Evidence”
In the space of two paragraphs, Yang uses “rebuttal evidence” four times, “proper rebuttal evidence” three times and “genuine rebuttal evidence” once. 627 N.W.2d at 677 [18] and [19]. The Director seizes on the solitary use of “genuine rebuttal evidence,” as if the word “genuine” somehow excludes the Whitcup letters from Yang’s exception. However, “genuine” is merely cautionary. If, for example, Ms. Olson had not cross-examined N.L. with the letters, but instead had a jailer read the letters during the rebuttal phase, would that approach have been “genuine” or would that be a merely procedural ploy that Yang sought to discourage? In the opinion of Judge Mennis, that tactic would have solved any problem. The law and answer are unclear.
II. The Unpublished Opinion – Confusion and Error, Rather Than Persuasive Weight
A. The Law of Unpublished Opinions
The Director misinformed the Lawyers Board panel in this matter as to the law of unpublished opinions. Ex. 105 at 5-6. The Director has now entered into a stipulation that properly acknowledges the unpublished opinion has at most persuasive weight.
As the Court of Appeals itself has warned, however, caution is still in order. “[C]are must be taken when citing unpublished opinions as persuasive authority.” Skyline Village Park Ass’n v. Skyline Village L.P., 786 N.W. 304 (2010). “The danger of miscitation is great because unpublished decisions rarely contain a full recitation of the facts.” Vlahos v. R & I Const. of Bloomington, Inc., 676 N.W.2d 672, 676 n. 3 (Minn. 2004). The unpublished State v. Whitcup is a case in point. It is so bereft of a factual basis for its condemnations that it is indeed a dangerous opinion.
The status of unpublished opinions is similar to that of CLE materials, trial court orders, foreign cases, etc. A district court erred when it allowed experts to explain themselves by citing CLE materials, trial courts orders and orders from other jurisdictions, but forbade the experts to refer to unpublished opinions. All these sources should have been treated similarly, as they either have persuasive value or they do not. Jerry’s Enterprises, Inc. v. Larkin, Hoffman, Daly & Lindgren, Ltd., 691 N.W.2d 484 (Minn. Ct. App. 2005).
In the Board Panel proceeding, the Director argued that the appellate record “supports” the unpublished opinion. Ex. 105 at 6. However, this proceeding is not an appeal, in which the unpublished opinion should be affirmed if it has some support in the record. No deference whatsoever is due the unpublished opinion. Even if the opinion would be found to have some persuasive weight, this proceeding is determinable only upon the Director proving the petition’s allegations by clear and convincing evidence.
B. As to the Facts, the Unpublished Opinion is Erroneous, Not Persuasive
The unpublished opinion made factual findings regarding Ms. Olson’s state of mind – “deliberate and inexcusable violation,” “deliberate and knowing plan.” Ex. 34 at *4. Ms. Olson acknowledges her decision not to produce the letters was “deliberate” and “knowing” in the sense that it was the product of deliberation. However, the unpublished opinion appears to indicate that Ms. Olson deliberately and knowingly violated discovery law. This she adamantly denies, and avers that the unpublished opinion is not persuasive as to the facts, for four reasons.
First, the unpublished opinion expressly acknowledges that the above determinations were made “On this record,” i.e. on the record before the Court of Appeals. Id. at *4. This record crucially did not include any evidentiary proceeding or evidence regarding Ms. Olson’s decision to withhold the Whitcup letters. In great contrast, the Referee has before him express allegations of violations of Rules of Professional Conduct, the testimony of live witnesses, expert testimony, numerous exhibits not in the appellate record, and the formal arguments of lawyers experienced in legal ethics. The Referee should not give the unpublished opinion’s unexplained condemnation, based on a cold appellate record, persuasive weight when he has a full evidentiary and trial record.
Second, the unpublished opinion did not even attempt to persuade regarding its findings. The unpublished opinion erred by failing to even mention the proper standard of review of district court fact-findings at the appellate level: “On appeal, a [district]court’s findings of fact are given great deference, and shall not be set aside unless clearly erroneous.” Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101 (Minn. 1999). Judge Knutsen expressly found that Ms. Olson acted in good faith, but the opinion did not even acknowledge that finding, let alone explain why it was rejected. The unpublished opinion abruptly declared its conclusions, without explanation and without citation to the record.
Witnesses before the Referee contradicted the unpublished opinion. Judge Mennis and Jan Nordmeyer testified, in response to the Director’s questions, that, in contrast to the unpublished opinion, they believed Ms. Olson did not produce the letters because she believed Yang provided an applicable exception to Rule 9.01. Similarly, Stacy Vinberg testified, by affidavit, that any discovery violation that Ms. Olson may have committed “was not intentional or malicious.” Id. ¶ 20. Again, and as always, the Director presented no contrary evidence, even though it is the Director who has the heavy burden of proof.
Third, the unpublished opinion did not hold that its findings met any standard of proof whatsoever, let alone the clear and convincing evidence standard of attorney discipline proceedings.
Fourth, the unpublished opinion engaged in fact-finding, but the Court of Appeals is not a fact-finding court. “It is not within the province of [appellate courts] to determine issues of fact on appeal.” Fontaine v. Steen, 759 N.W.2d 672, 679 (Minn. Ct. App. 2009) (citation and quotation omitted); see also Wright Elec., Inc. v. Ouellette, 686 N.W.2d 313, 324 (Minn. Ct. App. 2004) ("But this court cannot serve as the fact-finder."). The unpublished opinion did not even mention Judge Knutsen’s express findings that Ms. Olson did not act in bad faith, let alone explain why it effectively reversed Judge Knutsen fact-based findings.
C. As to the Law, the Unpublished Opinion is Confusing, Murky, Erroneous, and Not Persuasive
The unpublished opinion is confusing for several reasons, beginning with terminology. In stating and explaining its holding, the opinion:
· Cites the Minnesota Supreme Court definition of “rebuttal evidence,” and uses the term “rebuttal evidence” two more times, but does not apply the term to the facts of the case;
· Defines “rebuttal,” but does not apply the term to the facts; and
· Uses the term “rebut” four times, and applies the term to the facts, in stating an apparent holding, but does not define the term. Ex. 110.
Ms. Nordmeyer found the opinion “murky” and Mr. Small found the opinion unclear and far from obvious. Who can disagree? Will the Director attempt to clarify, by taking positions on which variety of “rebut” is operative and why?
The unpublished opinion’s holding appears to be, “Here, the prosecutor did not rebut N.L.’s testimony; she impeached N.L.’s credibility with the letters.” Ex. 34 at *3.[3] Synonyms for “rebut” include “counteract” and “oppose.” Exs. 108, 109. Because the letters were used to “counteract” and “oppose” N.L.’s testimony, they did in fact “rebut N.L.’s testimony.” The unpublished opinion, far from being persuasive, is in error.
The unpublished opinion includes the Black’s Law Dictionary definition of “rebuttal.” Ex. 110. This definition has never been cited by any other Minnesota appellate court, so it cannot have been obvious to Ms. Olson.
As Mr. Small testified, “rebuttal evidence,” as defined by the Minnesota Supreme Court, should be the operative term in the unpublished opinion. However, the opinion does not apply that term to the facts. When the term is applied to the facts, again it is clear that the letters were rebuttal evidence, because they “explained” N.L.’s testimony, as having been coached.
[1] Ms. Olson acknowledges that, as she now understands the law, the Whitcup letters would have been subject to Rule 9.01 except for Yang. During the State v. Whitcup litigation, Ms. Olson believed that Minn. Stat. §13.82 (Law Enforcement Data) provided an additional basis for confidentiality of the letters.
[2] The Director has suggested that “explain” means merely to clarify what is unclear, but that definition does not fit the rebuttal context, because clarification may well assist an opponent’s case.
[3] The unpublished opinion cited authority to define “impeachment” as “[t]he discrediting of a witness’s testimony by confronting the witness with his or her specific untruthful acts, prior convictions, prior inconsistent statements, or the like.” Id. (emphasis added). This definition does not actually apply to N.L.’s cross examination because the letters were Whitcup’s, not N.L.’s. This disparity between definition and actual use led Ms. Olson to argue in one submission that the letters were not impeachment, but she does not take that position here. Ex. 21.