Minnesota prosecutors fail to hold police accountable, critics say

©Star Tribune (Minneapolis)

Carter Sims, 3, of Pine Island, Minnesota, runs past a mural at the George Floyd memorial outside Cup Foods in Minneapolis on Thursday, June 25, 2020. - Leila Navidi/Minneapolis Star Tribune/TNS

MINNEAPOLIS — Over the past three years, five different judges in Hennepin County have ruled that Corcoran, Minn., police officer Cody Vojacek conducted unlawful searches, leading to the dismissal of six criminal cases.

In a February hearing on the most recent case, when asked under oath if he had adjusted his methods based on the courts’ repeated rebuffs, Vojacek was unequivocal that he had not.

“No, because I disagreed with the findings of those orders,” Vojacek said. “So no, I didn’t. I do things exactly the same as I always have.”

The case illustrates a problem in America’s criminal justice system that defense attorneys and reform advocates say enables bad policing: Prosecutors continue to bring criminal charges against suspects based on evidence and testimony from police officers who have lied on duty, conducted illegal searches or violated suspects’ civil rights.

In a time of nationwide soul searching on police accountability, “it’s vitally important to bring prosecutors into this conversation,” said Kate Levine, associate professor at New York City’s Benjamin N. Cardozo School of Law. “I think it’s totally facetious to suggest we could have police reform without huge changes in the way prosecutors operate. How they charge. Who they charge.”

Last month, citing the police killings of George Floyd, Breonna Taylor and Rayshard Brooks, San Francisco District Attorney Chesa Boudin announced a new policy directive to stop charging cases that rely on officers with histories of serious misconduct. Boudin’s office will compile a list of unreliable police to safeguard against citizens being “wrongly or unfairly accused by officers whom we know have displayed the kind of misconduct that permanently damages their credibility or the trust we place in them.”

Philadelphia District Attorney Larry Krasner has created a similar list of tainted officers to keep off the stand.

Vojacek didn’t respond to messages seeking comment. After the repeated dismissals, prosecutors contacted his supervisors and provided training materials, said Deputy Hennepin County Attorney Andy LeFevour.

“I would expect we would not see that behavior moving forward with that officer,” LeFevour said.

Defense attorneys say that’s not enough, and prosecutors are still pursuing charges on cases investigated by Vojacek moving through the courts.

“He has been found to have violated our clients’ constitutional rights six times, and in some of those cases judges have found him not to be credible,” said Chief Hennepin County Public Defender Mary Moriarty. “It’s astounding that the County Attorney’s Office would continue to prosecute cases brought to them by this police officer.”

The criticism isn’t limited to the defense. In her order deeming the search unconstitutional, Judge Marta Chou also expressed deep concern over what she called Vojacek’s indifference to the courts’ role in administering justice.

“It is a grim and dangerous day when an officer admits explicitly in open Court he believes he is above the law,” Chou wrote. “The balance of power between the branches of government in the United States succeeds — or fails — based on the level of respect and deference each branch shows to the others.”

Police and prosecutors are in most cases independent agencies that answer to different government hierarchies. Yet they are intrinsically linked and depend on each other’s integrity to succeed in the mission of finding justice.

In 2018, after the Carlton County Attorney’s Office learned veteran Cloquet police officer Scott Beckman had engaged in misconduct during investigations, prosecutors reviewed dozens of other criminal cases to which Beckman had been critical and dismissed many of them.

That same year, in Hennepin County, prosecutors revisited and dismissed at least 32 cases after Eden Prairie police officer Travis Serafin was caught lying on a search warrant.

The interdependence of branches of the criminal justice system is why it’s incumbent on prosecutors to vet police officers they plan to put on the stand — and not to deem them credible “merely because the police department hasn’t fired them yet,” said John Crew, a former ACLU attorney who spent decades on police reform issues in California.

“This idea that somehow the prosecutor’s job is to sit there and realize that someone is violating people’s rights and take no action is a fundamental corruption of the mission of a prosecutor,” Crew said. “You are encouraging it. You are complicit in it. You are corrupting and infecting the criminal justice system.”

In Minnesota’s 87 counties, prosecutors hold discretion over whom to charge. All are constitutionally required to turn over to the defense any evidence that calls into question the credibility of officers involved in a case.

The Hennepin County Attorney’s Office, which prosecutes criminal cases in Minnesota’s most populous region, does not keep a list of officers whose involvement will prevent a charge from being filed. But their office has for decades used a system that flags officers with histories of misconduct, said LeFevour.

This includes a formal agreement with police departments in the county to disclose when they issue final discipline on an officer. Prosecutors evaluate these flags on a case-by-case basis to determine severity and the officer’s importance to the case.

“I think that we have been proactive in this area,” said Alan Harris, managing attorney in Hennepin’s adult prosecution division. “I think we’ve done things that are appropriate and we have trained our lawyers about ethics of disclosing things. … We do get thousands of cases every year. And for everyone to know everything about everybody is just not possible. But we do the best we can.”

Moriarty said prosecutors sometimes fail to disclose officer misconduct or the information is delayed. In the Serafin case, Eden Prairie police issued a letter detailing the officer’s discipline in July 2018. But Moriarty said her office didn’t learn about it until October, when prosecutors held a news conference about it, and the lag set her office back months on advocating for other clients whose cases may be affected, including at least one in prison. “I am concerned there is other stuff they’re not telling us,” Moriarty said.

LeFevour disputed the characterization of the Serafin case, saying his office is keenly aware of its constitutional obligations. “Everyone’s entitled to their opinion, I guess,” Le­Fevour said. “Once we were able to act, we did. And we did it, I think, appropriately.”

Vojacek isn’t the only officer with a history of misconduct on which prosecutors have repeatedly relied upon to charge criminal cases.

In 2014, Hennepin County Judge Luis Bartolomei threw out evidence collected in a drug raid after concluding a Minneapolis officer, Steven Lecy, misrepresented the facts on a warrant application.

Part of Lecy’s justification for needing a “no-knock warrant,” which authorized police to burst into a south Minneapolis home unannounced at night, was the likely presence of a man named Joseph Smith. Smith was, according to Lecy, a dangerous man with a lengthy history of violence and arrests, including “recently being arrested for a stabbing.”

In truth, the man was the victim of a stabbing — not the assailant — and his latest criminal conviction was more than a decade old. He also did not appear to live in the house being searched. When a public defender raised the inaccuracies in court, Bartolomei ruled the evidence should be suppressed.

The next year, a Hennepin County judge threw out evidence in another Lecy case, prosecuted by the Minneapolis city attorney, this time on the ground of “outrageous government conduct.” Lecy had gone undercover to a private massage parlor off E. Lake Street that he suspected was a front for prostitution. The woman rubbed his genitals for 20 minutes before Lecy called in his partners to arrest her — what a judge later concluded “went beyond what was justified to collect evidence sufficient to arrest the defendant.”

In court, Lecy described his policing tactics as standard, saying he’d allowed prostitution suspects to touch his genitals “maybe ten times” before making arrests in prior cases. Lecy’s unorthodox methods ignited a backlash from community members over how the police conduct these investigations. In the courtroom and the media, defense attorneys compared the tactics to a female officer working undercover as a prostitute and engaging in sexual activity with a male suspect, rather than making the arrest after money is exchanged.

It also led to revelations that several of Lecy’s Third Precinct colleagues had also engaged in similar conduct with prostitution suspects. Among those were officers Sean McTaggart and Christopher Reiter.

The next year, McTaggart and Reiter arrested Victor Gaten on suspicion of drug possession. McTaggart hit Gaten in the face with the sight on his gun, according to court records. Reiter punched Gaten repeatedly until the officer threw out his back. Judge Toddrick Barnette dismissed that case, calling it an example of why many in the city “don’t trust Minneapolis police.”

McTaggart no longer works for the Minneapolis Police Department.

Neither does Reiter. The department fired him after he kicked a handcuffed suspect in the head the year after the Gaten case, leaving the man with a traumatic brain injury. A jury found Reiter guilty of third-degree assault and a judge sentenced him to six months in the county workhouse, telling Reiter he “abused his position of trust.”

The Hennepin County Attorney’s Office prosecuted him.

In the case of Vojacek, public defender Gay Glaze said prosecutors should do more to account for his pattern of “crossing the line.”

Glaze, who represented one of the suspects arrested by Vojacek, said she contacted prosecutors to ask why they continue to charge based on Vojacek’s policing.

“The response was, ‘We are not his employer.’?”

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©2020 Star Tribune (Minneapolis)