ANDERSON, PAUL H., Justice.
Nicole Marie Beecroft was found guilty of first-degree premeditated murder under Minn.Stat. § 609.185(a)(1) (2010), for the stabbing death of her newborn baby. The Washington County District Court convicted Beecroft of this offense and sentenced Beecroft, who was 17 years old and 9 months of age at the time of her baby's death, to life imprisonment without the possibility of release. Beecroft filed a direct appeal, but that appeal was stayed in order for Beecroft to file a petition for postconviction relief. After an evidentiary hearing, the postconviction court denied Beecroft's petition. Beecroft alleges in her consolidated direct and postconviction appeal that (1) the State deprived her of her due process right to present a complete defense, (2) she was denied effective assistance of counsel, and (3) the district court erred when it violated her rights under Miranda v. Arizona by admitting a statement she made to the police. In the alternative, Beecroft argues that we should reverse her conviction in the interests of justice.
The key factual issue at trial was whether Beecroft's baby was alive or dead when stabbed by Beecroft. Each party presented testimony on this issue from medical examiners and other forensic pathologists; but, certain state officials interfered with Beecroft's forensic experts, which interference undermined the integrity of the judicial system in this case. While the trial errors alleged by Beecroft may not in and of themselves warrant a reversal and the grant of a new trial, we conclude that, when the existence of the alleged errors is combined with the improper conduct of certain state officials, a reversal is warranted in the interests of justice. Therefore, we reverse Beecroft's conviction and remand for a new trial.
On April 10, 2007, the Saint Paul and Oakdale police departments investigated an anonymous tip that led the police to believe that appellant Nicole Marie Beecroft had given birth to a stillborn baby and then placed the baby's body in the trash. As part of their investigation, the police went to the house in Oakdale where Beecroft lived with her mother. At Beecroft's home, the police observed evidence that Beecroft may have been bleeding, but they did not find a baby. The police then went to Beecroft's workplace where she apparently had just finished her shift. After being confronted by the police, Beecroft agreed to ride in a squad car to the police station to answer questions.
Once at the police station, the police gave Beecroft a Miranda warning. Beecroft told the police she understood her rights and wanted to talk to the police. Beecroft's mother, who had gone to the police station of her own accord, was present when the Miranda warning was given and when Beecroft was questioned. Beecroft explained to the police that she first suspected that she might be pregnant in July 2006. She admitted taking a pregnancy test in February 2007 and that the test was positive. Beecroft then told the police that she gave birth to a baby girl on the concrete laundry-room floor of her home at approximately 3:00 a.m. on April 9, 2007. Beecroft said she was scared when the baby was born and she lay with the baby for at least 10 minutes. According to Beecroft, the baby was not breathing, did not move, and was "[p]ale white." Beecroft also told the police that the baby's eyes were closed and that she did not attempt to give the baby CPR or clear the baby's airway, but Beecroft did flick the baby's feet to see if the baby would respond. Beecroft said that "it did not breath[e], it did not move, it didn't do anything, it just laid there, like a Barbie or doll." When asked whether she had looked closely at the baby, Beecroft responded that she never turned on the light to look at the baby because she did not want to see a dead baby. Beecroft said she eventually wrapped the baby's body in a towel and put the baby in a garbage can outside her home.
During the police interview, Beecroft said that if the baby had been breathing, she would have taken the baby to a hospital and put the baby up for adoption. Beecroft said she did not name the baby. Beecroft also explained that the only person she told about her pregnancy until the birth was her friend, E.M. Beecroft did not tell her mother about the pregnancy or the birth.
Toward the end of interview, the police asked Beecroft if she had "heard of words on TV like homicide and murder." The police then told Beecroft that they were "going to find out the truth," that the facts would "play out," and that an autopsy would show if she was lying. Beecroft insisted that she was telling the truth. Beecroft eventually started crying and said, "[Y]ou guys are accusing me of it! I did not kill it!" At about this point, Beecroft's mother stopped the interview. The police station interview was about 50-minutes long. Beecroft was not arrested after this interview and was permitted to leave the station with her mother. Beecroft then went with her mother to a hospital for treatment of postpartum bleeding and cramping.
Meanwhile, the police obtained a search warrant for Beecroft's home. The police discovered the baby's body inside a trashcan next to the home. The body, wrapped in a towel saturated with blood, was inside a brown paper bag that was inside a black plastic garbage bag. The police observed "what appeared to be wounds" on the baby's body, and found a bloody knife in the bag with the body. Investigators also summoned personnel from the Ramsey County Medical Examiner's office to the scene. Later that day. Dr. Kelly Mills, an Assistant Ramsey County Medical Examiner, conducted an autopsy on the baby's body at her office with the police present. Dr. Mills reported that the baby was alive at the time of birth and that there were more than 100 stab wounds on the baby's body.
The next morning, April 11, three police officers questioned Beecroft in her hospital room. Beecroft's mother was also present during this interview. The police again gave Beecroft a Miranda warning and
During the hospital interview, the police started their questioning by asking essentially the same questions they had asked during the first interview. Beecroft responded by expanding on the information that she gave the police the previous day. Approximately 9 minutes into the interview, the police told Beecroft they had found the baby's body in a garbage bag at her home. When Beecroft's mother expressed disbelief, the police repeated the information and told Beecroft that the baby's body displayed "[a] lot of injuries." The police continued their questioning by stating: "[W]e understand that people make mistakes and ... this is an extremely hard time for you. But, ... we need the honest truth." Beecroft then started to cry and told police, "I went into panic mode and I stabbed her." When the police asked whether the baby was moving, Beecroft responded, "Just her finger. That's the only thing I saw move but I went into panic mode." Beecroft's mother then stopped the interview.
A Washington County grand jury indicted Beecroft for premeditated first-degree murder. See Minn.Stat. § 609.185(a)(1) (2010). Beecroft pleaded not guilty and moved to suppress the statement she made to the police at the hospital. At the suppression hearing, the State presented evidence consistent with the facts outlined above. The district court denied the motion to suppress, explaining that Beecroft was not in custody during the hospital interview and that even if she was in custody, the police gave Beecroft an adequate Miranda warning and Beecroft voluntarily waived her Miranda rights.
The district court made specific findings supporting its conclusion that Beecroft was not in custody when the police questioned her at the hospital. Specifically, the court found that Beecroft was "allowed to leave the police department the night before" the police questioned her at the hospital, that Beecroft "was well enough to be leaving the hospital" when the challenged statement was taken, and that the police "wanted to get more information" but did not approach Beecroft "with the intention to arrest or knowing anything in particular" about what Beecroft would say.
With respect to the adequacy of the Miranda warning, the district court found that Beecroft was young, "but not as young as some Defendants ... that are analyzed in the case law." The court found that Beecroft was 17 years and 9 months old at the time of the hospital interview, she "had her mother present," she or her mother had directed the police at some point to stop the questioning, and she had received the Miranda warning "twice in less than 24 hours." With respect to waiver, the court found that Beecroft did not give any indication that she was not willing to talk and that Beecroft's behavior did not indicate that she did not want to answer questions. Further, the court found that these facts, together with the fact that Beecroft did not hesitate or resist answering questions, all supported the conclusion that Beecroft adequately waived her rights.
Beecroft waived her right to a jury and elected to try her case to the district court. The most important factual issue at trial was whether the baby was alive or dead when Beecroft stabbed her. Although the court sequestered the trial witnesses, the court allowed each party to have one consulting
The State introduced into evidence Beecroft's statement to the police in which she admitted stabbing the baby and putting the baby in the trash after seeing the baby's finger move. A jail official testified that he overheard Beecroft tell her mother that the baby's "fingers were moving." Beecroft's friend, E.M., testified that Beecroft told her that the baby's eyes were "half open," and that Beecroft wanted to name the baby "Nevaeh" because it is "heaven" spelled backward.
The State also presented expert testimony corroborating Beecroft's statements to the police and her mother indicating that the baby was born alive. Dr. Mills testified about her autopsy findings, explaining that the baby had been stabbed more than 100 times, was a "viable female infant," and "was indeed born alive." Dr. Mills based her conclusions on the gestational age of the baby; the appearance of contusions on the baby's body; air in the baby's lungs and stomach; aeration, hemorrhaging, and inflammation in the baby's lungs; and hemorrhaging and inflammation in the baby's esophagus.
Dr. Daniel Davis, the Oregon Deputy State Medical Examiner, also testified for the State. Dr. Davis stated that he had conducted a review of the State's medical evidence. He testified that the cause of death was "multiple sharp-force injuries" and the manner of death was homicide. Dr. Davis concluded that the baby was born viable based on the fact that the baby was full term, did not have any abnormalities or conditions indicating that she died in utero, did not have the appearance of a baby that had been dead for any length of time in utero, had "injury-related hemorrhage," had inflated lungs, had air in the stomach, and had trauma indicating a beating heart.
The State also presented the following evidence on the issues of premeditation, intent, and motive. There was evidence that Beecroft tried to hide her pregnancy from her family and others, except her friend, E.M. Beecroft indicated a desire to end the pregnancy and did not make any preparations for the child's birth. A worker at LifeCare Center East, which is a nonprofit pregnancy resource center, testified that on September 5, 2006, Beecroft took a pregnancy test at the Center that showed a positive result. The worker testified that Beecroft was considering an abortion, was not "responsive," left the clinic still "abortion-minded," and did not show up for a scheduled ultrasound appointment. Further evidence was presented showing that on multiple occasions Beecroft discussed with E.M. the possibility of getting an abortion; but, because Beecroft was under the impression that as a minor she needed court approval or parental consent to get an abortion, she did not seek one.
The State connected Beecroft to the crime by presenting several items of physical evidence. DNA in blood found in several rooms of Beecroft's home was consistent with Beecroft's DNA. The knife in the bag with the baby's body matched a steak knife found in the kitchen and DNA found on the knife in the bag was consistent with that of the baby. The baby's DNA could not be excluded as a contributor to blood samples taken from a light switch in the family room. The baby's DNA was found on a dishtowel. Beecroft's DNA was found in a mixture of blood on two pair of scissors and the baby could not be excluded as a contributor to the mixture of blood on either pair of scissors. DNA evidence also indicated that Beecroft was the baby's mother.
Beecroft called only two witnesses—Dr. Janice Amatuzio and Dr. Charles Wetli. Dr. Amatuzio is the medical examiner for nine Minnesota counties, including Anoka County. Dr. Wetli is the former Chief Medical Examiner for Suffolk County, New York.
Dr. Amatuzio testified that, in her opinion, Beecroft's baby was not alive when she was stabbed. But Dr. Amatuzio could not determine whether the baby was stillborn or born alive. Dr. Amatuzio agreed with the State's experts that the baby had what appeared to be hemorrhaging and air in her lungs when she died; but Dr. Amatuzio concluded that the baby was not breathing and the baby's heart was not beating when she was stabbed. Dr. Amatuzio concluded that air got into the baby's lungs by way of a "bellows" effect when the baby was stabbed, and not by the baby taking a breath.
Based on his review of the autopsy and other evidence, Dr. Wetli testified that the baby was not alive when Beecroft stabbed her. In particular, Dr. Wetli concluded that the lack of blood in any of the baby's airways or internal organs indicated that the baby's heart was not beating when the baby was stabbed. Dr. Wetli also disagreed with the opinions of the State's experts with respect to the evidence of air in the baby's lungs.
The record indicates that interference occurred with respect to forensic experts who were consulting with or planning to testify on behalf of Beecroft. In March 2008 the defense requested an expert opinion from Dr. Susan Roe, an assistant medical examiner for eight Minnesota counties, including Dakota County. The defense specifically asked Dr. Roe to render an expert opinion with respect to Dr. Mills's autopsy report.
In the course of reviewing Dr. Mills's autopsy report, Dr. Roe consulted with her mentor, Dr. Janice Ophoven. Dr. Ophoven is a forensic pathologist who works as an Assistant Saint Louis County Medical Examiner and owns her own clinical pediatric forensic pathology company. In particular, Dr. Ophoven's professional background is in "forensic pathology with special training and experience in the evaluation, investigation and interpretation of injuries and fatalities in childhood." On April 8, 2008, Dr. Ophoven provided a formal report to Dr. Roe regarding the circumstances of the death of Beecroft's baby. In preparing the report, Dr. Ophoven reviewed medical records, police records, and Dr. Mills's autopsy report. In her report, Dr. Ophoven concluded, "There is no evidence in this case to verify that baby girl Beecroft was in fact born alive. The evidence is much more consistent with a stillbirth." Dr. Ophoven based her conclusion on the general lack of alveolar expansion in the baby's lungs.
On April 17, 2008, Dr. Roe sent defense counsel a report outlining her own expert opinion. Dr. Roe explained, "[I]t is my opinion that Baby Girl Beecroft was a viable infant. I am unable to reliably determine stillbirth versus live birth. If I were signing the death certificate in this case, I would call both the cause of death and the manner of death `undetermined.'" After receiving Dr. Roe's report, Beecroft notified the State, in accordance with Minn. R.Crim. P. 9.02, that she intended to call Drs. Amatuzio, Roe, and Wetli as expert witnesses. Beecroft did not list Dr. Ophoven as a potential expert witness.
In September 2008, about 7 weeks before the beginning of Beecroft's trial, someone at the Nicollet County Attorney's Office emailed Dakota County Attorney James Backstrom, inquiring about the work of Dr. Roe. The author of the email believed that Dr. Roe was listed as a potential defense witness in a separate, unrelated Nicollet County child-suffocation case. On September 16, 2008, Backstrom emailed Dr. Roe's superior, Chief Dakota County Medical Examiner Dr. Lindsey Thomas, expressing his concerns about medical examiners testifying as defense witnesses. Backstrom's email to Dr. Thomas stated that he was "disturbed" that Dr. Roe was testifying as a defense expert in criminal cases and went on to explain his view that medical examiners testifying for defendants put him "in a difficult position" and created a "conflict of interest." Backstrom also expressed his concern that the defense bar might use transcripts of a medical examiner's defense-witness testimony to undermine the State in unrelated future prosecutions.
In October 2008 the State provided Beecroft with several documents pursuant to the rules governing pretrial discovery. The documents included a transcript of Dr. Roe's testimony as a State's witness in a Wisconsin case and several of Dr. Roe's prior autopsy reports. Because Dr. Roe's prior testimony and autopsy reports expressed opinions that were inconsistent with Dr. Roe's opinion in Beecroft's case, the State informed Beecroft that the State intended to use the documents to impeach Dr. Roe if she were to testify at Beecroft's trial.
Sometime around the start of Beecroft's trial, Backstrom received a copy of an email from Assistant Washington County Attorney Richard Hodsdon. Hodsdon, acting in his capacity as counsel for the Minnesota Sheriffs' Association, had sent the following email to all the sheriffs in Minnesota:
When Backstrom learned of Hodsdon's email, he forwarded it to Dr. Thomas. In his email, Backstrom renewed the concerns he had articulated in his September email. He emphasized that he did not find it acceptable that either Dr. Thomas or members of her staff were accepting requests to testify as a defense witness and that if Dr. Thomas or members of her staff continued to accept such requests, Backstrom would not be in a position to continue
On November 10, 2008, 5 days into the trial, Beecroft called Dr. Amatuzio to testify as an expert witness. Dr. Amatuzio testified but specifically did not testify in her official capacity as the Anoka County Medical Examiner. Rather, before giving her opinion on the evidence, Dr. Amatuzio stated that she was testifying for the defense as a private physician. According to Dr. Amatuzio, someone from the Washington County Attorney's Office—the same office that was prosecuting Beecroft—contacted the Anoka County Attorney's Office and stated that it would be a "conflict of interest" for Dr. Amatuzio to testify as a defense witness for Beecroft. Dr. Amatuzio explained at trial that representatives from the Anoka County Attorney's Office then approached her and advised her to testify as a private physician rather than in her capacity as the Anoka County Medical Examiner.
After Dr. Amatuzio completed her testimony on November 10, defense counsel informed the district court that Beecroft no longer intended to call Dr. Roe as a witness. Defense counsel explained that they had learned of the ongoing conflict-of-interest debate between Backstrom and Dr. Thomas, and that based on that ongoing debate, they concluded that it would be inappropriate to put Dr. Roe in an "untenable
Two days later, on November 12, Backstrom sent an email to Dr. Thomas and Dr. Roe, which email he then forwarded to the district court and defense counsel. In the email, Backstrom sought to "clarify [his] position" with respect to the conflict-of-interest debate. Backstrom explained that he assumed Dr. Roe would testify in Beecroft's trial and that it was "not [his] intent to stop her from doing so or to influence or affect her testimony in th[e] case in any respect."
Upon receiving Backstrom's email, defense counsel filed a motion with the district court, arguing that Backstrom had engaged in improper ex parte communications with the court. Beecroft's motion requested (1) an opportunity to make a further record of Backstrom's "continuing and inappropriate communications," (2) an order directing that the emails be made part of the official court record, and (3) any other appropriate relief. The parties and the court discussed Beecroft's motion on November 14, 2008. The court, stating that it was "frankly flummoxed" by Backstrom's email to the court, allowed Beecroft to "make a record" concerning Backstrom's emails and agreed to make the emails part of the trial record.
Defense counsel asserted that, "based on the fact that [Dr. Roe] was the secondary recipient of ... coercive statements by ... Backstrom, ... Dr. Roe elected to, for all intensive [sic] purposes, completely sever her ties and communication with [defense counsel] regarding continued consultation on this particular case." According to defense counsel, Dr. Roe, after learning of Backstrom's November 5 email to Dr. Thomas, notified counsel that in the interest of her "financial self-preservation, she wanted no further involvement with ... the case." This meant that even though Dr. Roe was present in the courtroom to consult with defense counsel during the testimony of the State's experts Dr. Mills and Dr. Davis, Dr. Roe was not present during the testimony of defense witness Dr. Amatuzio and State rebuttal witness Dr. McGee.
Based on Dr. Roe's absence, Beecroft requested a modification of the district court's sequestration order prohibiting the parties' experts from consulting with each other so that defense expert Dr. Wetli could speak with Dr. Amatuzio before Dr. Wetli testified. Beecroft argued that the modification was necessary because, as the court recognized, Dr. Roe had not been available to help defense counsel "digest [Dr.] Amatuzio's testimony" and thereby help defense counsel prepare Dr. Wetli. The court expressed concerns that the emails might have helped to deprive Beecroft "of the opportunity of having the same expert be [her] consulting expert throughout this case." Nevertheless, the court
After Dr. Roe severed her ties with the defense, defense counsel asked Dr. Ophoven to serve as a defense consultant in lieu of Dr. Roe. Dr. Ophoven reluctantly agreed. But Beecroft did not attempt to call Dr. Roe or Dr. Ophoven to testify.
Following trial, the district court issued its written findings of fact, conclusions of law, and verdict. The court found Beecroft guilty of the first-degree premeditated murder of her baby in violation of Minn. Stat. § 609.185(a)(1). The court then convicted Beecroft of this offense and sentenced her to life in prison without the possibility of release.
Beecroft initially filed a direct appeal, but her direct appeal was stayed so that she could pursue postconviction relief. In her petition for postconviction relief, Beecroft claimed for the first time that she was deprived of her due process right to present a complete defense. In the alternative, Beecroft argued in a posthearing memorandum that if the postconviction court concluded that she waived her due process claim, she was still entitled to a new trial because defense counsel's failure to assert the due process claim would constitute ineffective assistance of counsel.
The postconviction court granted Beecroft an evidentiary hearing.
Beecroft also presented the following evidence with respect to Dr. Ophoven's employment restriction. In September 2007 several Saint Louis County officials met to discuss their concerns about Dr. Ophoven's participation in an unrelated child-protection case, in which Dr. Ophoven's conclusions differed from the conclusions of the State's experts. Participants in the meeting were the Saint Louis County Attorney, the Saint Louis County Sheriff, two Assistant Saint Louis County Attorneys, and Dr. Uncini. Shortly after the meeting, Dr. Uncini wrote a letter to Dr. Ophoven requesting her to "perform no criminal defense work in the State of Minnesota while employed as an Assistant Saint Louis County Medical Examiner." Dr. Ophoven interpreted the letter to mean that she would be fired if she provided sworn testimony for any criminal defendant in Minnesota. Dr. Uncini testified that the restriction was essentially a condition of Dr. Ophoven's employment, and Dr. Ophoven agreed with this statement.
The postconviction court denied Beecroft's petition for postconviction relief.
Beecroft subsequently filed a notice of appeal from the postconviction court's order denying her request for a new trial and moved to reinstate her direct appeal. She then moved to consolidate the two appeals. We granted the motion.
In her combined appeal from her conviction and the postconviction order, Beecroft raises four claims. First, Beecroft asserts that her due process right to present a complete defense was violated because of the governmental interference with two expert witnesses—Drs. Roe and Ophoven.
Our analysis of Beecroft's claims on appeal must be considered in the context of the historic role of coroners and medical examiners and their important function and obligations in our modern criminal justice system. Any such analysis must take into account the independence, autonomy, and neutrality that we expect from medical examiners. This perspective takes on added importance given that the conduct of certain state actors in this case reflects what appears to be a growing point of view within Minnesota's law enforcement and prosecution communities that it is a "conflict of interest" for medical examiners to consult with or testify at the request of criminal defendants. It is not a conflict of interest for a medical examiner to consult with criminal defense attorneys or testify at a criminal defendant's request. Indeed, such activity is authorized and protected by law. See U.S. Const. amend. VI (protecting a criminal defendant's right to present witnesses in his defense); U.S. Const. amend. XIV, § 1 (protecting a person's
While coroners and medical examiners have the same historical roots, their roles in the modern criminal justice system are distinguishable. The coroner system dates to at least 1194 A.D. in England, and coroners historically were "royal official[s] with countywide jurisdiction," Black's Law Dictionary 390 (9th ed.2009), who looked after the "administration of criminal justice and the revenue to the king resulting therefrom," 1 Bouvier's Law Dictionary 682 (8th ed.1914); see also Nat'l Research Council of the Nat'l Acads., Strengthening Forensic Science in the United States: A Path Forward 241 (National Academies Press 2009) [hereinafter NRC Report], available at http://www.ncjrs.gov/pdffiles1/ nij/grants/228091.pdf ("On behalf of the crown, the [coroner] was responsible for inquests to confirm the identity of the deceased, determine the cause and manner of death, confiscate property, collect death duties, and investigate treasure troves."). In later years, coroners were responsible for investigating deaths and occasionally assuming the duties of the county sheriff. Black's, supra, at 390. The traditional coroner system, however, established clear lines of separation between the coroner and sheriff; in particular, there were some duties such as "`holding inquests upon dead bodies'" that belonged specifically to the coroner. Id. (quoting R.F. Hunnisett, The Medieval Coroner 1 (1961)). Further, the coroner acted as a check on the sheriff's power because the coroner was responsible for "report[ing] criminal activity to the king's justices in eyre," and was subject to punishment if the justices learned of criminal activity in the county from another source. Black's, supra, at 390.
American colonists brought the British common-law coroner system with them to the New World. See NRC Report, supra, at 241. In the United States a coroner is an elected or appointed public official who is typically responsible for administering death investigations but may also perform other executive, judicial, or administrative functions. Id. at 247; Black's, supra, at 390 (defining the modern coroner as a "public official whose duty is to investigate the causes and circumstances of any death that occurs suddenly, suspiciously, or violently"). Although coroners in Minnesota are now required to be licensed physicians and obtain special "medicolegal" death investigation training, Minn.Stat. § 390.005, subd. 3(b) (2010), coroners traditionally had—and in some states still have—little or no medical training, see NRC Report, supra, at 241-42, 247-48.
Medical examiners, on the other hand, "are almost always physicians, are appointed, and are often pathologists or forensic pathologists." Id. at 248. Medical examiners "serve the criminal justice system as medical detectives by identifying and documenting pathologic findings in suspicious or violent deaths and testifying in courts as expert medical witnesses." Id. at 244. Specific tasks performed by medical examiners include "death scene investigations, medical investigations, reviews of medical records, medicolegal autopsies, determination of the cause and manner of death, and completion of the certificate of death." Id. at 243.
Medical examiners theoretically enjoy autonomy from those government officials directly responsible for investigating and prosecuting crimes. In 2006 the Minnesota Legislature expressed its commitment to medical-examiner independence by rewriting the law governing coroners and medical examiners.
An important justification for the independence of medical examiners is the public's interest in having accurate scientific findings available during an inquiry into a sudden, unexpected, or suspicious death. It should be undisputed that the quality of forensic investigation improves when medical examiners operate free from the influence of law enforcement and prosecutors. Cf. NRC Report, supra, at 23-24 (reporting that when forensic scientists are "driven in their work by a need to answer a particular question related to the issues of a particular [criminal] case, they [may] face pressure to sacrifice appropriate methodology for the sake of expediency"). In its standards for medicolegal death investigators, the National Association of Medical Examiners ("NAME")
Most medical examiners "view themselves first and foremost as scientists, beholden not to one side or the other, but only to the truth." Mark Hansen, CSI Breakdown, A.B.A. J., Nov. 2010, at 44, 46. In other words, a medical examiner's primary purpose is not to solve crimes but to serve the public by determining how people die. See, e.g., United States v. Rosa, 11 F.3d 315, 332 (2d Cir.1993). In Rosa, the Second Circuit said:
Id. at 332 (emphasis added) (citations omitted) (internal quotations omitted); see also People v. Washington, 86 N.Y.2d 189, 193, 630 N.Y.S.2d 693, 654 N.E.2d 967 (1995) (explaining that a medical examiner's mandate "is clear, to provide an impartial determination of the cause of death"). Unfortunately, "[s]ome police and prosecutors tend to view government-employed forensic scientists, including medical examiners, not as independent experts, but as members of the prosecution's `team'." Hansen, supra, at 46; see NRC Report, supra, at 187.
As previously noted, our Legislature has explicitly rejected the proposition that medical examiners serve only the police and prosecutors. Indeed, the Legislature has explicitly provided that a "medical examiner may, when requested, make physical examinations and tests incident to any matter of a criminal nature under consideration by the district court or county attorney, law enforcement agency, or publicly appointed criminal defense counsel." Minn.Stat. § 390.251 (emphasis added). Section 390.251 recognizes that forensic science is not and should not become the sole province of the police and prosecutors. In the search for truth and justice, forensic science must be "equally available to law enforcement officers, prosecutors, and defendants." NRC Report, supra, at 17 (emphasis in original). Likewise, medical examiners, in their role as forensic scientists, must not be beholden to the police and prosecutors. Instead, as independent public officials, medical examiners must be available to advise and assist publicly appointed defense counsel and to testify on behalf of criminal defendants. See Minn. Stat. § 390.251; see also Minn.Stat. § 611.21 (2010) (requiring a district court to authorize expert witness fees for indigent defendant if the court finds that the expert services are necessary). Today, we reaffirm what the law already mandates—medical examiners are independent public officials, free to make examinations on behalf of, submit reports to, consult with, and testify at the request of criminal defendants. See Minn.Stat. §§ 390.011, 390.251; 611.21.
There are also practical considerations that underlie this mandate. As the NRC Report explains, there are fewer than 500 forensic pathologists practicing full time in the United States. NRC Report, supra, at 257. In Minnesota, there are only about 20 forensic pathologists, and nearly all of them work in some capacity with at least one county medical examiner's office. See Katie Humphrey, What Is the Role of Pathologists in Law and Order?, Star Tribune, Mar. 8, 2009, http://www.startribune. com/local/south/40929767.html?page=2& c=y. If every forensic pathologist associated
Thus, both our laws and practical considerations support the mandate that medical examiners must at all times remain independent, autonomous, and neutral participants in our criminal justice system.
At this point it is instructive to provide some examples of why we must ensure defense access to forensic experts, including forensic pathologists. Mistakes by forensic analysts do happen, and when they happen they can have dramatic consequences. According to Innocence Project, 289 persons have now been exonerated through postconviction DNA testing through the nationwide Innocence Network. Facts on Post-Conviction DNA Exonerations, Innocence Project, http:// innocenceproject.org/Content/351.php (last visited May 15, 2012). In approximately half of these exonerations, the misapplication of forensic methodologies and/or procedures may have played a role in convicting the innocent person. Id.; see also infra, note 16. It is now beyond dispute that some evidence that had been presumed to be valid forensic science and had been admitted in criminal trials has subsequently been proven fallible. This shortcoming in our criminal justice system is a major reason why defendants must have access to their own forensic experts in order to challenge and test the validity of the government's forensic evidence.
An example of a discredited field of forensic science involves the analysis of lead in bullets. For over four decades, the FBI offered Composite Bullet-Lead Analysis ("CBLA") as a forensic service to connect suspects to crimes. Gassler v. State, 787 N.W.2d 575, 580 (Minn.2010). CBLA is based on the assumptions that each manufactured "batch" of bullets shares the same trace elements and chemical makeup and that no two batches are ever produced with the same chemical makeup. See id. As part of CBLA, FBI scientists used chemistry to match bullets to a manufacturing "batch"; that is, bullets recovered from a crime scene were linked to packages or boxes of bullets that were presumably manufactured in the same "batch." See John Solomon, FBI's Forensic Test Full of Holes, Wash. Post, Nov. 18, 2007, http://www.washingtonpost.com/wp-dyn/ content/article/2007/11/17/AR 2007111701681.html. In 2006 the Maryland Court of Appeals (that state's highest court) ordered a new trial for a defendant who had been convicted of murder based on CBLA. Clemons v. State, 392 Md. 339, 896 A.2d 1059 (2006). The Maryland court concluded that CBLA is "not generally accepted within the scientific community" and was thus no longer admissible in Maryland courts. Id. at 1070; see also Gassler, 787 N.W.2d at 580-81 (reporting that the FBI sent a letter to the Minnesota Attorney General's office stating that it would be inappropriate for an agent to state with scientific certainty, based on CBLA, that two bullets came from a particular box of ammunition or came from a particular source of lead).
Here, we must pause to emphasize that we do not conduct an examination of the
The next step in our analysis is to address the specific allegations of error that Beecroft raises in her appeal. We turn first to Beecroft's due process claims—that she was denied the right to present her own witnesses and the ability to consult with her own expert witnesses. When a defendant initially files a direct appeal and then moves for a stay to pursue postconviction relief, we review the postconviction court's decisions using the same standard that we apply on direct appeal. State v. Maurstad, 733 N.W.2d 141, 146 (Minn.2007). Whether a due process violation has occurred presents a question of constitutional law, which we review de novo. State v. Bobo, 770 N.W.2d 129, 139 (Minn.2009). Because Beecroft did not specifically object on due process grounds at trial, we review her due process claims on appeal for plain error. See Minn. R.Crim. P. 31.02; State v. Jenkins, 782 N.W.2d 211, 229-30 (Minn.2010). Plain error exists when there is (1) error, (2) that is plain, and (3) affects the defendant's substantial rights. See Jenkins, 782 N.W.2d at 230. "An error is plain if it is clear or obvious." State v. Jones, 753 N.W.2d 677, 686 (Minn.2008). If these three requirements are satisfied, we then consider "whether the error should be addressed to ensure fairness and the integrity of the judicial proceedings." State v. Goelz, 743 N.W.2d 249, 258 (Minn.2007) (citations omitted) (internal quotations omitted).
Both the United States Constitution and the Minnesota Constitution guarantee a criminal defendant the right to due process. McCollum v. State, 640 N.W.2d 610, 617-18 (Minn.2002) (citing U.S. Const. amend. XIV, § 1; Minn. Const. art. I, § 7). Beecroft asserts that the due process violation here is twofold: first, state actors interfered with her right to present witnesses in her defense; and second,
As part of our analysis, we must first determine whether the alleged due process violations asserted by Beecroft were caused by state action. This analysis must be conducted because the conduct of private parties generally lies beyond the scope of the United States Constitution. See Burton v. Wilmington Parking Auth., 365 U.S. 715, 721-22, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961). Likewise, "[t]he Minnesota Constitution does not accord affirmative rights to citizens against each other; its provisions are triggered only by state action." State v. Wicklund, 589 N.W.2d 793, 801 (Minn.1999).
The State concedes that Dakota County Attorney James Backstrom is a state actor. The State asserts, however, that Dr. Uncini's conduct is not subject to constitutional review. The State argues that Dr. Uncini was acting in a private capacity when he restricted Dr. Ophoven, his subcontractor, from testifying at the request of criminal defendants in Minnesota.
We have held that constitutional restrictions on conduct may be applied against private conduct if the conduct is sufficiently "`entwined with governmental character.'" Id. (quoting Brennan v. Minneapolis Soc. for the Blind, Inc., 282 N.W.2d 515, 524 (Minn.1979)); see also Jackson v. Metro. Edison Co., 419 U.S. 345, 351, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974) (holding that private conduct becomes state action when a "sufficiently close nexus" exists between the state and the challenged conduct). Thus, a private individual who is a government contractor may qualify as a state actor "while acting in [an] official capacity or while exercising... responsibilities pursuant to state law." West v. Atkins, 487 U.S. 42, 50, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). In West, the United States Supreme Court held that when a state completely delegates its duty to a private entity, the entity functions as a state actor because its conduct is fairly attributable to the state. Id. at 54, 108 S.Ct. 2250. According to the Court, it is immaterial whether the private entity provided services to the state pursuant to a contractual agreement. Id. at 55-56, 108 S.Ct. 2250.
Minnesota Statutes chapter 390 requires each county to appoint a coroner or medical examiner to perform death investigations. Minn.Stat. § 390.005, subd. 1 (2010). Like many Minnesota counties, Saint Louis County has delegated its duty to perform death investigations to a private forensic pathologist. At all times relevant to this case, Dr. Uncini served as the Chief Medical Examiner for Saint Louis
Nevertheless, the State disputes that Dr. Uncini was a state actor. The State points out that Dr. Uncini testified at Beecroft's postconviction hearing that it was his personal decision to restrict Dr. Ophoven from testifying as an expert for criminal defendants in the state. But regardless of who made the decision to impose the restriction, Dr. Uncini's conduct constitutes state action if he imposed the restriction while he was acting in his official capacity. As the Supreme Court explained in West, "`If an individual is possessed of state authority and purports to act under that authority, his action is state action. It is irrelevant that he might have taken the same action had he acted in a purely private capacity.'" 487 U.S. at 56 n. 15, 108 S.Ct. 2250 (quoting Griffin v. Maryland, 378 U.S. 130, 135, 84 S.Ct. 1770, 12 L.Ed.2d 754 (1964)). Here, Dr. Uncini sent a formal letter to Dr. Ophoven on Saint Louis County letterhead restricting her from performing "criminal defense work in the State of Minnesota while employed as an Assistant Saint Louis County Medical Examiner." Dr. Uncini signed the document as "Chief Medical Examiner." Further, Dr. Uncini imposed the restriction on Dr. Ophoven only after he attended a series of meetings with the Saint Louis County Attorney, the Saint Louis County Sheriff, and two assistant county attorneys to discuss concerns about Dr. Ophoven's work with criminal defendants. In fact, Dr. Uncini's letter to Dr. Ophoven stated that the decision to impose the restriction was "a result of [the] meetings" he had with Saint Louis County officials.
For all the foregoing reasons, we conclude that Dakota County Attorney James Backstrom was a state actor when he sent the emails to Dr. Thomas. We also conclude that Saint Louis County Chief Medical Examiner Dr. Thomas Uncini was a state actor when he restricted Dr. Ophoven from testifying on behalf of criminal defendants in Minnesota.
We turn next to the merits of Beecroft's due process claims. Beecroft first claims that state actors violated her right to present her version of the facts through the testimony of certain expert witnesses. The right of a defendant to present a complete defense is an essential principle of our criminal justice system
388 U.S. 14, 19, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967). Not only does a defendant have a right to present a complete defense, a defendant has a right—at least in theory—to meet the State as an equal in our adversarial system of justice: "strength against strength, resource against resource, argument against argument." United States v. Bagley, 473 U.S. 667, 694 n. 2, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985) (Marshall, J., dissenting) (citation omitted) (internal quotations omitted). Therefore, if factfinders are exposed to the opinions of the government's expert witnesses, a defendant must have an equal opportunity to present to the factfinders the opposing views of the defendant's experts.
We have said that "[i]n determining whether the State has infringed on a defendant's constitutional right to present a defense by [interfering with defense witnesses]..., the dispositive question ... is whether the government actor's interference with a witness's decision to testify was substantial." State v. Graham, 764 N.W.2d 340, 349 (Minn.2009) (citations omitted) (internal quotations omitted). "Substantial" interference occurs when a "government actor actively discourages a witness from testifying through threats of prosecution, intimidation, or coercive badgering." United States v. Serrano, 406 F.3d 1208, 1216 (10th Cir.2005); see also United States v. Goodwin, 625 F.2d 693, 703 (5th Cir.1980) ("Threats against witnesses are intolerable.").
Here, Backstrom sent several emails to Dr. Roe's supervisor, Dr. Thomas, stating that Backstrom was "disturbed" that Dr. Roe was willing to testify as a defense expert and that such conduct was a "conflict of interest." Further, Dr. Roe was listed as one of Beecroft's potential witnesses until Backstrom sent an email to Dr. Thomas, "threatening to withdraw
Further, it is undisputed that Dr. Ophoven's alleged unavailability as a witness for the defense was caused solely by Dr. Uncini's specific restrictions. These restrictions, which were in place well before Beecroft's trial, prevented Dr. Ophoven from testifying at the request of criminal defendants in Minnesota if she wanted to continue her role as an Assistant Saint Louis County Medical Examiner. In essence, Dr. Uncini told Dr. Ophoven that Dr. Ophoven could not do what the law says she may do. See U.S. Const. amend. VI; U.S. Const. amend. XIV, § 1; Minn. Stat. §§ 390.251; 611.21. Although Dr. Ophoven admitted that she never asked Dr. Uncini about the possibility of testifying at Beecroft's trial, Dr. Ophoven had no reason to make such a request because it was Dr. Ophoven's understanding that the restrictions placed on her by Dr. Uncini were an absolute condition of her employment. This point was made abundantly clear when Dr. Ophoven testified at Beecroft's postconviction hearing that if Beecroft's counsel had subpoenaed her to testify as a defense expert, she would have been uncooperative and would have stated that she was testifying against her wishes. Thus, we conclude that Dr. Uncini's actions also fit within the definition of substantial interference.
The State argues that it was not substantial interference by state actors that created the unavailability of Dr. Roe and Dr. Ophoven; rather, the State contends that it was defense counsel's strategic decision not to call either doctor that created the doctors' unavailability. Yet, even if defense counsel's decision was "strategic," that decision may well have been influenced by the conduct of state actors. Indeed, Backstrom's emails to Dr. Thomas clearly played a role in defense counsel's decision not to place Dr. Roe in an "untenable position" by calling her to testify. Defense counsel explained,
(Emphasis added). Further, counsel testified at Beecroft's postconviction hearing that they would have called Dr. Ophoven to testify if she had been available. But counsel also testified that they did not subpoena Dr. Ophoven because it was their understanding that "both at the time [the defense] hired [Dr. Ophoven] and at the time of trial, [Dr. Ophoven] would not be allowed to testify for the defense."
Beecroft had the right to present her version of the case to the trier of fact and to "present [her] own witnesses to establish a defense." See Washington, 388 U.S. at 19, 87 S.Ct. 1920 (emphasis added). Regardless of whether Beecroft would have ultimately called Dr. Roe and/or Dr. Ophoven as witnesses, the choice was Beecroft's to make—not the State's. Based on this sequence of events, we conclude that Backstrom's emails and Dr. Uncini's restrictions created a situation in which it would be too risky to Dr. Roe's
The next step in our plain error analysis is to determine if the error was plain. But, even when plain error is present, our court will not reverse the district court unless that error affects substantial rights. Jones, 753 N.W.2d at 686 (citing State v. Griller, 583 N.W.2d 736, 740 (Minn.1998)). Here, there is no need to address the question whether the error was plain, because even assuming that the error was plain, Beecroft does not prevail on the third prong of the plain-error analysis: the state actors' interference did not affect Beecroft's substantial rights.
An error affects a defendant's substantial rights if there is a reasonable likelihood that the error had a "significant effect" on the verdict. State v. Sontoya, 788 N.W.2d 868, 873 (Minn.2010) (citing Griller, 583 N.W.2d at 741). In making the substantial rights determination, we consider the strength of the State's case, the level of harm caused by the error, and whether the defendant had an opportunity to respond. See id.
The potential for harm from the error committed here was great. This case was tried before a district court judge, not a jury, and the court's verdict relied heavily on the forensic pathologists who testified. Indeed, the defense's theory of the case—that Beecroft's baby was already dead when Beecroft stabbed her—depended almost entirely upon expert forensic testimony. But Beecroft's expert testimony was compromised by the conduct of state actors.
First, Dr. Amatuzio testified only in her capacity as a private physician and not as the forensic pathologist serving as the medical examiner for nine Minnesota counties. Second, neither Dr. Amatuzio nor Dr. Wetli is an expert in pediatric or perinatal pathology. At trial the State attacked Dr. Wetli's lack of expertise and specialized experience in pediatric pathology during its cross-examination of Dr. Wetli and during its closing argument. Dr. Ophoven, on the other hand, is a trained specialist in pediatrics who has more than 30 years of experience in pediatric and perinatal pathology. Third, Dr. Roe's and Dr. Ophoven's testimony would not have been, as the State argues, either cumulative or unhelpful. Concededly, Dr. Ophoven would have testified to the same ultimate conclusion as Dr. Amatuzio and Dr. Wetli. But Dr. Ophoven's testimony would have been helpful to Beecroft's defense because Dr. Ophoven not only serves as a medical examiner, but also is a trained expert in pediatric and perinatal pathology. Additionally, although Dr. Roe was not certain whether the baby was born alive or stillborn, Dr. Roe—who is an assistant medical examiner in eight Minnesota counties—disagreed with a number of findings testified to by the State's forensic experts. Thus, Dr. Roe's testimony may have undermined the credibility of the State's expert witnesses. Moreover, Dr. Roe's uncertainty over whether the baby was born alive or stillborn could well have had a critical impact in a case where the State's burden is to prove guilt beyond a reasonable doubt. See State v. Ewing, 250 Minn. 436, 442, 84 N.W.2d 904, 909-10 (1957).
Nevertheless, the State had a strong case against Beecroft even if certain state actors had not interfered with her ability to present testimony by Dr. Roe and Dr. Ophoven. The district court stated in its verdict that "there would be no reason to stab a child that was not born alive." While this statement may be debatable, there was evidence that Beecroft admitted
Finally, the postconviction court, which was also the factfinder at trial, found that Dr. Ophoven lacked credibility and would have had limited usefulness as a witness. Thus, we conclude that there is not a reasonable likelihood that the harm caused by the error in this case had a "significant effect" on the district court's verdict. See Sontoya, 788 N.W.2d at 873. This is especially so when the district court's verdict, unlike the general verdict of a jury, is supported by specific findings of fault. The record before us and our standard of review, which mandates a plain-error analysis, lead us to conclude that Beecroft's claim that the State violated her right to present witnesses does not, by itself, warrant reversal and a new trial.
Beecroft also claims that because Dr. Roe stepped down as a consulting expert in the middle of the trial, Beecroft was deprived of her due process right to present a complete defense. In Ake v. Oklahoma, the Supreme Court held that the government was required to provide an indigent defendant with access to a psychiatrist to assist in his defense when the defendant's sanity was a "significant factor" at trial. 470 U.S. 68, 74, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). More specifically, the Court held that "[m]eaningful access to justice" and the due process right to present a complete defense encompass a right to the "`basic tools of an adequate defense.'" Id. at 77, 105 S.Ct. 1087 (quoting Britt v. North Carolina, 404 U.S. 226, 227, 92 S.Ct. 431, 30 L.Ed.2d 400 (1971)). Thus, the Court concluded that when scientific evidence is a "significant factor" at trial, one "basic tool" that must be available to indigent defendants is access to the assistance of an expert for conducting professional examinations, consulting on possible affirmative defenses or trial strategies, and preparing to cross-examine the government's expert witnesses. See id. at 82-83, 105 S.Ct. 1087. The Court reached this conclusion because defense counsel must be able to recognize any faulty methods, inconsistent statements, or inaccurate conclusions reached by the government's experts. See id. at 82, 105 S.Ct. 1087.
The United States Constitution and our adversarial process protect the
There can be no doubt that the question of whether Beecroft's baby was alive or dead when Beecroft stabbed her was a "significant factor" at Beecroft's trial. Ake, 470 U.S. at 74, 105 S.Ct. 1087. Another "significant factor" was whether defense counsel effective cross-examination of the State's expert witnesses required the advice of a defense expert. As defense counsel testified at Beecroft's postconviction
In her dissent, the Chief Justice dismisses Beecroft's expert assistance claim by distinguishing the facts of this case from Ake, reasoning that "unlike Ake, Beecroft was provided expert consulting services throughout trial."
Here, we do not know with any certainty whether Beecroft would have benefited from having Dr. Roe serve as her consultant throughout the entire trial. For example, the record does not reveal whether defense counsel would have been better able to identify inconsistent testimony by the State's expert witnesses had counsel been assisted by Dr. Roe. But this likelihood exists and raises concern about whether Dr. Ophoven, who joined the defense team as a consultant partway through trial, was sufficiently apprised of all the issues that had already been addressed by the State's expert witnesses. Thus, our analysis leads us to the conclusion that whether Beecroft's right to expert assistance was violated is a much closer question than the Chief Justice finds it to be. Nevertheless, a thorough review of the record and the arguments made by Beecroft does not reveal that Dr. Roe's withdrawal during the trial caused any specific prejudice that warrants reversal. Given our standard of review, we conclude that Dr. Roe's decision to step down as a consulting expert did not deprive Beecroft of her right to present a complete defense.
We turn next to Beecroft's claim that she was denied effective assistance of counsel. The Sixth Amendment of the United States Constitution guarantees
In this case, Beecroft's defense counsel took some steps to specifically raise the issue of the email communications to the district court. While counsel primarily focused on the ex parte nature of Backstrom's email to the court, counsel alluded to the "coercive statements" in Backstrom's emails to Dr. Thomas and argued that Dr. Roe's withdrawal from the case as a consultant for the defense may have been precipitated by the emails. In response to these arguments, the court agreed to make the emails part of the trial record. Further, as correctly noted by the Chief Justice's dissent, there is some evidence—including counsel's own admissions—that counsel made a tactical decision not to call Dr. Roe or Dr. Ophoven.
But there is also evidence that defense counsel failed to act vigorously to defend Beecroft. Counsel did not subpoena either Dr. Roe or Dr. Ophoven to testify and did not object on due process grounds to the doctors' unavailability as witnesses or consultants. With respect to Dr. Roe, counsel conceded that they intentionally made the wording of their motion to the district court regarding the email communications "somewhat vague because [they were not] sure what, if any, kind of relief [they] were seeking from [the] Court." Even after the district court expressed concerns that the emails might have deprived Beecroft "of the opportunity of having the same expert be [her] consulting expert throughout this case," counsel did not request a mistrial or any other specific relief. With respect to Dr. Ophoven, counsel admitted that it "didn't occur to [them]" to make a due process objection on the basis of Dr. Ophoven's unavailability, even after counsel learned that Dr. Ophoven's report was favorable to the defense's theory of the case.
It is understandable that defense counsel may have feared that they would place Dr. Roe or Dr. Ophoven in a difficult position if they compelled either to testify. Nevertheless, counsel's priority should have been to provide the best available defense to Beecroft. If Dr. Roe and Dr. Ophoven were the best witnesses and they were available, counsel should have compelled their testimony unless there was a strategic reason not to do so. Counsel should have provided the district court with the opportunity to remedy any problems resulting from the wrongful barrier erected by state actors to Dr. Roe's and Dr. Ophoven's availability. In other words, counsel should not have allowed their desire to avoid controversy or their concern for the doctors' plight to temper their duty to zealously represent Beecroft. If counsel had properly pursued this issue,
We conclude that the nature of the legal representation that Beecroft received at trial raises serious concerns about the quality of her defense. Accordingly, we are to some extent sympathetic to the analysis of our colleague, Justice G. Barry Anderson, and the conclusion in his concurrence that Beecroft was denied effective assistance of counsel. But given our standard of review, the state of the record, and the unique nature of the case before us, we conclude that we do not need to, nor should we reach the question of whether defense counsel's performance failed the Strickland test. Rather, we conclude that under the egregious facts of this case, the better route to take is to conclude that Beecroft is entitled to a new trial in the interests of justice.
In addition to the specific allegations of error discussed above, Beecroft argues that we should reverse her conviction in the interests of justice. We typically will not award a criminal appellant a new trial in the absence of prejudicial error. State v. Kaiser, 486 N.W.2d 384, 387 (Minn.1992). But we have on occasion awarded a new trial in the interests of justice even when there is no showing of actual prejudice. Id. When doing so, we have relied on our "supervisory power to insure the fair administration of justice." See State v. Scales, 518 N.W.2d 587, 592 (Minn. 1994). Put differently, our power to reverse "prophylactically or in the interests of justice comes from our power to supervise the trial courts." State v. Salitros, 499 N.W.2d 815, 820 (Minn.1993).
On several occasions, we have reversed convictions in the interests of justice based on prosecutorial misconduct. See State v. Cabrera, 700 N.W.2d 469, 475 (Minn.2005); Salitros, 499 N.W.2d at 820; Kaiser, 486 N.W.2d at 387. We have also previously cautioned the State that an "allegation of State intimidation of defense witnesses is not to be taken lightly." Graham, 764 N.W.2d at 349. We have taken this position because "`[f]ew rights are more fundamental than that of an accused to present witnesses in his own defense.'" State v. Blom, 682 N.W.2d 578, 621 (Minn.2004) (quoting Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973)).
We recognize that a reversal by our court in the interests of justice is limited to "exceptional" circumstances, see Gassler, 787 N.W.2d at 586; but we conclude that exceptional circumstances are present here and preventative action by us is necessary. As previously noted, medical examiners are intended to be skilled, unbiased, and independent public officials who perform an essential fact-finding role in our criminal justice system. More specifically, an independent, autonomous, and neutral community of medical examiners is essential to the "fair administration of justice" in our state, and here, that independence, autonomy, and neutrality have been placed in doubt by the conduct of state actors.
In cases in which forensic testimony related to a death investigation is a significant factor in determining guilt or innocence, the assistance of a medical examiner—independent from the influence of law enforcement and prosecuting authorities—"may well be crucial to the defendant's ability to marshal his defense." Ake, 470 U.S. at 80, 105 S.Ct. 1087. Hence, equal access to these forensic experts is essential to a criminal defendant's ability to mount a meaningful defense in such a case. And without the assistance of expert forensic pathologists,
Beecroft's right to present a complete defense was limited by the conduct of several state actors. The record before us demonstrates that this conduct was not isolated. It appears instead that there is a widespread point of view among law enforcement officials, prosecutors, and perhaps other state actors that it is a "conflict of interest" for medical examiners to work with criminal defendants. Here, the conduct of state actors interfered with Beecroft's ability to consult with and call expert witnesses. These mistaken efforts by state actors unquestionably interfered with the independence of medical examiners, contravened clear legislative intent, and risked undermining Beecroft's constitutional rights; therefore, we conclude that we must exercise our supervisory powers and reverse Beecroft's conviction in the interests of justice.
"Justice is a process, not simply a result." State v. Lefthand, 488 N.W.2d 799, 802 (Minn.1992). This process requires the entire "criminal justice system, including judges, prosecutors, and defense lawyers" to be "responsible for the fair administration of justice." State v. Windish, 590 N.W.2d 311, 319 (Minn.1999). The prosecutor's obligation as "`a minister of justice . . . is to guard the rights of the accused as well as to enforce the rights of the public.'" State v. Ramey, 721 N.W.2d 294, 300 (Minn.2006) (quoting State v. Penkaty, 708 N.W.2d 185, 196 (Minn.2006)). As the Supreme Court has explained, a government lawyer "is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done." Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 (1935) (emphasis added). In other words, "[t]he duty of the prosecutor is to seek justice, not merely to convict." Ramey, 721 N.W.2d at 300 (quoting ABA Standards for Criminal Justice: Prosecution Function & Defense Function, Standard 3-1.2(c) (3d ed.1993)).
The record in the case before us reveals that the conduct of several prosecutors and certain law enforcement officials appears to have fallen short of what we expect it to be. The Dakota County Attorney's office, Nicollet County Attorney's office, Saint Louis County Attorney's office, and Washington County Attorney's office (as counsel for the Minnesota Sheriffs' Association, not as a prosecuting attorney) all engaged in conduct that either explicitly or implicitly undermined Beecroft's access to the assistance of certain medical examiners. The belief that the testimony of these medical examiners would in some way impact the work of county attorneys in the future—presumably making their effort to overcome the presumption of innocence more difficult—appears to have partially motivated the conduct of these prosecutors.
Further, the belief among prosecutors that medical experts testifying at the request of criminal defendants creates a "conflict of interest" is not isolated to this case. For example, the Saint Louis County Attorney testified at Beecroft's postconviction hearing that prosecutors in her office were receiving calls from prosecutors around the country indicating their displeasure with the fact that Dr. Ophoven
The response of the medical examiners involved in this case is enlightening. At Beecroft's trial, Dr. Amatuzio testified, "as a medical examiner, my job is to speak for the person who's died and render a medical opinion. I do not see that as a conflict of interest." The comments of Dr. Thomas in her email to Backstrom dated September 16, 2008, are even more direct and poignant:
(Emphasis added.)
It is not disloyal for a medical examiner, who may testify as a State expert in the future, to consult with defense counsel or testify as a defense witness. Good medical examiners do not choose sides. Instead, a medical examiner must testify fairly and objectively regardless of which party calls the examiner to testify. Dr. Thomas explained it this way: "What [Dr. Roe] or I say in one county and in one case, we will say in another county and in another case. We don't change our testimony to please the requesting attorney."
It should be a matter of considerable concern to all persons who value "Truth and Justice"
470 U.S. at 79, 105 S.Ct. 1087.
We are mindful of the responsibilities of prosecutors to carry out their executive duties and prosecute those charged with crimes, and we recognize the challenges presented by ethically fulfilling these duties. See State v. Streiff, 673 N.W.2d 831, 839 (Minn.2004) (Anderson, Paul H., J., concurring) ("[T]he executive branch's power to charge a criminal offense is awesome and sometimes may be difficult to exercise in a just manner."). But the fact that a medical examiner's testimony in one case may make it more difficult for the State to meet its burden in a later case is an inappropriate reason to impose restrictions on medical examiners. There is possibly no greater danger in our criminal justice system than convicting one who is innocent. See In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) ("It is critical that the moral force of the criminal law not be diluted by a [justice system] that leaves people in doubt whether innocent men are being condemned."). And our concern over convicting an innocent defendant has led us to say that "a prosecutor may not seek a conviction at any price." Ramey, 721 N.W.2d at 300 (citing State v. Porter, 526 N.W.2d 359, 362-63 (Minn.1995)); cf. Shorter v. State, 511 N.W.2d 743, 747 (Minn.1994) ("`[J]ustice must satisfy the appearance of justice.' " (quoting Offutt v. United States, 348 U.S. 11, 14, 75 S.Ct. 11, 99 L.Ed. 11 (1954))).
In her dissent, the Chief Justice rejects Beecroft's interests-of-justice claim on the ground that we have typically reversed convictions based on prosecutorial misconduct only after first issuing a warning about the potential consequences for the misbehavior. See, e.g., Cabrera, 700 N.W.2d at 475 (reversing conviction when prosecutor injected race into the trial after previous warnings from this court); Lefthand, 488 N.W.2d at 801-02 (addressing in-custody interrogation of formally accused person who is represented by counsel). Similarly, the State contends that the interests of justice do not compel reversal because there has been no prior warning to prosecutors not to interfere with the independence of medical examiners.
The reasoning of the Chief's dissent and the State is problematic. By its nature, our power to reverse a conviction in the interests of justice "provides, in effect, a `safety valve' for the justice system." Henry W. McCarr & Jack S. Nordby, 9 Minnesota Practice—Criminal Law & Procedure § 47.57 (3d ed.2001). Although a repeated pattern of prosecutorial misconduct may have been one basis for reversal in the past, we have never imposed a repeated behavior standard as a rigid threshold requirement on our ability to reverse in the interests of justice. Our authority to exercise our supervisory power over district courts must remain flexible based on the circumstances of each individual case. See, e.g. Porter, 526 N.W.2d at 366 (reversing conviction based on prosecutorial misconduct resulting in prejudicial error and in the interests of justice). Simply put, the State is not always entitled to a "warning" before it realizes the consequences of violating established laws and rules and interfering with the fair administration of justice.
Medical examiners must be allowed to complete their death investigations without the interference, or the appearance of interference, by other state actors, including law enforcement officials and prosecutors. Law enforcement officials and prosecutors must respect the independence, autonomy, and neutrality of medical examiners. Law enforcement officials and prosecutors also have a duty to help ensure the vindication of a criminal defendant's constitutional right to the consulting and testimonial assistance of medical examiners. We conclude that given the "exceptional" circumstances of this case, the only way to see that this mandate is fulfilled and to guarantee the "fair administration of justice" is to reverse Beecroft's conviction in the interests of justice. Therefore, we reverse Beecroft's conviction by the district court and remand for a new trial.
Because we conclude that Beecroft is entitled to a new trial in the interests of justice, we also need to address Beecroft's contention that the district court erred when it denied her motion to suppress the statement she made to the police at the hospital. Beecroft specifically asserts that (1) the Miranda warning was insufficient because she was not informed about the possibility of adult prosecution and (2) she did not voluntarily waive her Miranda rights. The State argues that the court properly admitted the statement because Beecroft was not in custody when she made the statement, the Miranda warning was adequate, and Beecroft voluntarily waived her Miranda rights. It is not necessary for us to reach the custody issue, because even if Beecroft was in custody, we conclude that the Miranda warning was adequate and that Beecroft voluntarily waived her rights.
Turning first to Beecroft's assertion that the Miranda warning was inadequate, we have cautioned that there is "a heightened concern" that a juvenile suspect "actually comprehends that [her] statements can be used in adult court." State v. Fardan, 773 N.W.2d 303, 313 (Minn.2009). Thus, we have said that "the best course is to specifically warn the minor that [her] statement can be used in adult court, particularly when the juvenile might be misled by the protective, nonadversary environment that juvenile court fosters." State v. Burrell, 697 N.W.2d 579, 592 (Minn.2005) (citations omitted) (internal quotations omitted). But "the failure
Our analysis in Burrell and Fardan is helpful to this examination. In Burrell, the juvenile defendant was handcuffed, taken into a police interrogation room, and questioned while his mother was forced to wait outside in the police station lobby. 697 N.W.2d at 592. Before administering a Miranda warning, the police told Burrell that they were investigating the shooting of a little girl. Id. We concluded that, "[b]ased on the physical restraints used during Burrell's arrest" and conversations indicating that Burrell knew police officers had apprehended him in connection with a murder, "knowledge of possible adult-court prosecution could be imputed to Burrell." Id. Similarly, in Fardan, we held that the knowledge of adult-court prosecution could be imputed to the juvenile defendant because the police "put Fardan in handcuffs," transported Fardan to "Minneapolis City Hall, which is not a juvenile court setting," presented Fardan with a search warrant, "took a DNA swab," "told Fardan that they were investigating incidents" that took place the night of the victim's death, and "did not imply that the interrogation would be confidential or nonadversarial." 773 N.W.2d at 313-14.
We conclude that Beecroft also can be imputed with the knowledge of adult-court prosecution. She was nearly 18 years old at the time of the interrogation—17 years and 9 months. Unlike Burrell, Beecroft had her mother present, and it is reasonable to presume Beecroft's mother knew that Beecroft could be charged as an adult, would safeguard Beecroft's rights accordingly, and would—and did—stop the questioning when it became clear that continuing to talk to the police would not be in Beecroft's best interest. Further, in the first interview—the day before the hospital interview—the police asked Beecroft if she had "heard of words on TV like homicide and murder," implicating the potentially serious consequences of waiving her rights. See Burrell, 697 N.W.2d at 592. Moreover, the police did not imply that the interrogation would be confidential or nonadversarial. See Fardan, 773 N.W.2d at 313. Therefore, even though we conclude that the police should have given a more specific warning, see Burrell, 697 N.W.2d at 592, we also conclude Beecroft can be imputed with the knowledge that she could be tried as an adult and we therefore hold that the challenged Miranda warning was adequate.
Beecroft also asserts that her waiver of her Miranda rights was not voluntary. A suspect may waive her Miranda rights as long as she does so knowingly, intelligently, and voluntarily. Burrell, 697 N.W.2d at 591. A determination that a "statement is involuntary within the meaning of the Due Process Clause of the Fourteenth Amendment necessitates a finding that the statement was coerced." State v. Thompson, 788 N.W.2d 485, 492 (Minn.2010). The "key question" under this inquiry is "whether the will of the defendant was overborne, which does not necessarily require threats or intimidating techniques." Id. To determine whether a juvenile's waiver was voluntary, we evaluate the totality of the circumstances, considering
Based on our careful review of the record, we conclude that Beecroft's waiver was voluntary. Beecroft was 3 months from her 18th birthday. She was a senior in high school and worked a part-time job, evidencing a level of education, intelligence, and maturity of someone who is nearly an adult. There is no evidence that she was deprived of any physical comforts during the interview. The interview was relatively short (15 minutes) and it did not take place in a police station or interrogation room. Beecroft had received two Miranda warnings within 24 hours. Both warnings were adequate. She spoke freely to the police without any hesitation or apparent pressure from the police to do so. Finally, unlike Burrell, who was repeatedly denied the opportunity to speak with his mother both before and after receiving his Miranda warning even though his mother was in an adjoining interrogation room, Beecroft's mother was present when Beecroft waived her rights. See Burrell, 697 N.W.2d at 585-86. After considering the totality of the circumstances, we conclude that Beecroft's waiver was voluntary. Therefore, we conclude that the district court did not err when it admitted into evidence the statement Beecroft made to the police at the hospital.
In sum, while we conclude that state actors' substantial interference with Beecroft's due process right to present a complete defense constitutes error, under our standard of review, we conclude that any error did not affect Beecroft's substantial rights. Nevertheless, we conclude that because the conduct of multiple state actors unquestionably interfered with the legislatively mandated independence of medical examiners, thereby putting Beecroft's constitutional rights at risk, we exercise our supervisory powers and reverse Beecroft's conviction in the interests of justice. Finally, we conclude that the district court did not err when it admitted the statement Beecroft made to the police when she was at the hospital.
Reversed and remanded.
ANDERSON, G. BARRY, Justice (concurring).
I concur in the result reached by the plurality but arrive at that outcome by a different route. The United States and Minnesota Constitutions guarantee a criminal defendant the right to effective assistance of counsel. See U.S. Const. amend. VI; Minn. Const. art. I, § 6; Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Vance, 254 N.W.2d 353, 358 (Minn.1977). This right, of course, is not a guarantee of perfect, error-free representation. It has been aptly said that "the [right to counsel] guarantees criminal defendants only a fair trial and a competent attorney. It does not insure that defense counsel will recognize and raise every conceivable constitutional claim." Engle v. Isaac, 456 U.S. 107, 134, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982). But when defense counsel fails to identify and object to obvious prosecutorial misconduct or other obvious prejudicial error, and there is no objectively reasonable strategy or tactic explaining counsel's failure to intervene, the fairness of a defendant's trial is cast into doubt. I would conclude that Beecroft did not have effective assistance
In some respects, this case is an odd candidate for an ineffective assistance of counsel claim. Beecroft's lawyers mounted an aggressive defense, retained expert witnesses, effectively cross-examined the State's witnesses, and otherwise fully participated in the defense of their client's interests. And the unprecedented nature of the state-actor misconduct here likely complicated defense counsel's response to that misconduct.
All of that said, however, I conclude that defense counsel's failure to act to defend Beecroft's substantial and fundamental interest in a fair trial, when faced with government interference with potential defense witnesses and inappropriate third-party contact with the trier of fact, requires reversal and a remand for a new trial. Because I conclude that defense counsel's failure to act was objectively unreasonable and Beecroft was prejudiced by defense counsel's inaction, I concur in the plurality's decision to reverse Beecroft's conviction and remand for a new trial.
The plurality's opinion contains a thorough factual summary, but I briefly highlight two events from Beecroft's trial that are essential to my conclusion that Beecroft did not receive effective assistance of counsel.
During the early stages of Beecroft's trial, forensic pathologist Dr. Susan Roe worked as a consulting expert for Beecroft's defense. Beecroft had also listed Dr. Roe as a potential expert witness to testify on Beecroft's behalf. In a series of emails sent before and during Beecroft's trial by Dakota County Attorney James Backstrom to Dr. Roe's supervisor, Dr. Lindsey Thomas (the "Backstrom-Thomas emails"), Backstrom conveyed his belief that Dr. Roe's consultation with and testimony on behalf of criminal defendants constituted a "conflict of interest." Backstrom further threatened to remove his support for Dr. Thomas's appointment as the Dakota County Medical Examiner based on his view that Dr. Thomas and her employees should not work with criminal defendants.
According to Beecroft's counsel, the Backstrom-Thomas emails had a "chilling effect" on Dr. Roe's participation in the case. Based on the content of the emails, and in the interest of her own financial self-preservation, Dr. Roe told defense counsel that she wanted no further involvement in Beecroft's case. Yet, after first learning of the Backstrom-Thomas emails, Beecroft's counsel did little more than bring the emails to the court's attention. Then, after Dr. Roe withdrew from any continued participation in the case, Beecroft's counsel again took no action other than reporting to the court that Dr. Roe had completely severed her "ties and communication" with the defense, and requesting that the court make the emails part of the official trial record.
Backstrom apparently learned that Beecroft's counsel had reported the Backstrom-Thomas emails to the court. In response, Backstrom sent an email to the district court, in this case sitting without a jury (the "Backstrom-court email"). The Backstrom-court email specifically referenced Beecroft's ongoing trial and Dr. Roe's participation in that trial.
The following day, Beecroft's counsel made a motion to the district court regarding the Backstrom-court email. After the close of evidence that day, the court discussed the email and defense counsel's motion with State prosecutors and defense
The question presented is whether Beecroft's constitutional right to reasonably effective assistance of counsel was violated.
This court has long demonstrated a healthy reluctance to second-guess the performance of trial counsel. Thus, to establish that her trial counsel's performance fell below an objective standard of reasonableness, Beecroft must overcome a "strong presumption that counsel's performance was reasonable." State v. Martin, 695 N.W.2d 578, 587 (Minn.2005), overruled on other grounds by Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006).
When reviewing claims of ineffective assistance of counsel, one area of conduct into which we have been particularly reluctant to venture is "trial strategy." Lahue, 585 N.W.2d at 789; see also, e.g., State v. Jones, 392 N.W.2d 224, 236 (Minn. 1986) (refusing to review trial "strategy" and "tactics" because an appellate court, "unlike the counsel, has the benefit of
That is because defense counsel must "have the flexibility to represent a client to the fullest extent possible," Jones, 392 N.W.2d at 236, and "[e]ven the best criminal defense attorneys would not defend a particular client in the same way," Strickland, 466 U.S. at 689, 104 S.Ct. 2052. Thus, so long as defense counsel's performance preserves a truly adversarial contest between the prosecution and the defendant, we will generally resist the temptation to question the countless tactical decisions that defense counsel must inevitably make during a criminal trial. See United States v. Cronic, 466 U.S. 648, 656, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984) ("When a true adversarial criminal trial has been conducted—even if defense counsel may have made demonstrable errors—the kind of testing envisioned by the Sixth Amendment has occurred." (footnotes omitted)).
Although our scrutiny of defense attorneys is, and must continue to be, "`highly deferential,'" Rhodes, 657 N.W.2d at 844 (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052), our deference has limits. When defense counsel's action—or inaction—cannot be explained by any reasonably conceivable strategy, our customary deference must cede to our duty to protect a defendant's constitutional right to counsel. See Moore v. Johnson, 194 F.3d 586, 617 (5th Cir.1999) ("Strickland does not require deference when there is no conceivable strategic purpose that would explain counsel's conduct." (citation omitted)). Put differently, deference is unwarranted if an attorney's unreasonable error "was not based on `strategy'" but was instead the result of a misunderstanding of facts or law or an inexcusable oversight. Kimmelman v. Morrison, 477 U.S. 365, 385, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986); see also United States v. Hylton, 294 F.3d 130, 134 (D.C.Cir.2002) (concluding that defense counsel's failure to seek to exclude government witnesses was "simply inexcusable" and resulted from a "misunderstanding of [the law]"); Loyd v. Whitley, 977 F.2d 149, 158 (5
In this case, after learning that multiple state actors had interfered with a defense consultant and potential defense witness, defense counsel failed to argue that their client's due process rights had been violated. Defense counsel again failed to take any substantial action after a third-party state-actor engaged in inappropriate contact with the trial judge, who was sitting as the fact-finder. Given the facts and circumstances of this case, defense counsel's failures were "simply inexcusable."
After defense counsel first became aware of the Backstrom-Thomas emails, counsel notified the district court of the existence of the emails but took no further action. This is troubling because, by then, defense counsel was already aware of the "chilling effect" of the emails on Dr. Roe, a consulting expert and potential defense witness. The constitutional implications for Beecroft were obvious; state interference with a defense witness could constitute a due process violation and defense counsel should have acted to defend their
The failure of Beecroft's counsel to provide reasonably effective assistance to their client is further demonstrated by counsel's response to interference with another possible defense witness—Dr. Janice Ophoven. Dr. Ophoven is a forensic pathologist who, at the request of Dr. Roe, reviewed the medical record in this case. Dr. Ophoven also provided a written report to Dr. Roe in which Dr. Ophoven concluded that there was no evidence, to a reasonable medical certainty, that Beecroft's baby was born alive. Thus, Dr. Ophoven's conclusion directly supported the defense's theory of the case. Yet defense counsel took no action when Dr. Ophoven told them that her contract with the Saint Louis County Medical Examiner prohibited her from testifying on behalf of criminal defendants in Minnesota.
Once again, in the face of possible government interference with a potential defense witness, defense counsel failed to argue that their client's due process rights were violated. When asked why the defense team did not file a motion asserting a violation of their client's right to present a complete defense, counsel replied, "[I]t didn't occur to [us]."
Hence, my conclusion that defense counsel's repeated inaction in this case was objectively unreasonable is not a case of second-guessing trial strategy. The trial record and defense counsel's testimony reveal that counsel had "no strategy" to address obvious government misconduct, or "at least no strategy that could pass as anywhere near objectively reasonable." United States v. Ramsey, 323 F.Supp.2d 27, 36 (D.D.C.2004).
The facts of this case are unique and few applicable precedents exist. But the lack of precedent is an insufficient excuse for defense counsel's failure to take appropriate action in the face of obvious misconduct by state actors. Cf. Hodge v. Hurley, 426 F.3d 368, 377 (6th Cir.2005) (concluding that a failure to object to prosecutorial misconduct can amount to ineffective assistance of counsel); Mason v. State, 274 Ga. 79, 548 S.E.2d 298, 301 (2001) (same).
Even though Beecroft has demonstrated that her counsel's performance fell below an objective standard of reasonableness, she cannot succeed on her claim of ineffective assistance of counsel unless she can also show that she suffered prejudice as a result. Under Strickland, an appellant "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." 466 U.S. at 694, 104 S.Ct. 2052. "A `reasonable
As a result of state action, Beecroft was deprived of testimony by and/or consultation with two of her chosen experts, Dr. Roe and Dr. Ophoven. For the reasons set out in Part III of the plurality's opinion, reasons that I join here but do not find necessary to repeat, the failure of counsel to secure the testimony of Dr. Roe and Dr. Ophoven, either by subpoena, by motion, or otherwise, may well have been critical to a successful defense such that there is a "reasonable probability" that but for counsel's errors, the results at trial would have been different.
But there is another reason for concluding Beecroft was prejudiced by these actions. The failure of defense counsel to specifically assert a due process challenge on behalf of their client deprived Beecroft of any possibility of a remedy. Those remedies included, but were not limited to, the possibility of a continuance (and, importantly, given that it was a bench trial, perhaps a lengthy continuance) to make other, more satisfactory, arrangements for expert witnesses and, perhaps more directly, an order granting a mistrial.
There are certainly reasonable arguments to be made, as a matter of tactics, as to what remedy might have best suited Beecroft. And those decisions are, for the most part, insulated from judicial review. But here, where defense counsel did essentially nothing in response to wrongful conduct, and then admitted at the postconviction proceedings that the possibility of a due process violation never "occurred" to the defense team, any possibility of relief for Beecroft has been foreclosed.
But these were no ordinary expert witnesses; in a trial unusually dependent on expert opinion, state action deprived the defense of two potential expert witnesses who had been with the defense from the very early days of this case. It is undisputed that the district court never heard the testimony of either Dr. Roe or Dr. Ophoven, so judging the effect of the doctors' testimony is speculative. At a minimum, Beecroft has demonstrated that Dr. Ophoven would have testified at trial absent the prior restraint by her employer and that her testimony would have been favorable to Beecroft's theory of the case. Cf. Evans v. Cockrell, 285 F.3d 370, 377 (5th Cir.2002) (noting that in order for an appellant to demonstrate Strickland prejudice based on counsel's failure to call a witness, the appellant must show "not only that [the] testimony would have been favorable, but also that the witness would have testified at trial" (alteration in original) (citation omitted)). Further, the postconviction court failed to specifically address any of the other possible remedies that I have mentioned earlier. Therefore, on this record, my confidence in the outcome of Beecroft's trial is sufficiently undermined. Although it is hardly free from doubt, I conclude that there is a "reasonable probability" that the outcome of Beecroft's trial would have been different if her attorneys had advocated forcefully for district court recognition of the due process violations suffered by Beecroft.
It must be acknowledged that we have only rarely granted a defendant a new trial based on a claim of ineffective assistance of counsel. In In re Welfare of T.D.F., we concluded that we must reverse a defendant's conviction if a district court's denial of a request for a continuance deprives the defendant's counsel of adequate trial preparation. 258 N.W.2d 774, 775 (Minn.1977). We have also held that if defense counsel "admits a defendant's guilt without the defendant's permission or acquiescence, the defendant should be given a new trial." State v. Wiplinger, 343 N.W.2d 858, 861 (Minn.1984); see also State v. Moore, 458 N.W.2d 90, 95-96 (Minn.1990) (reaching the same result). But the unique facts of this case, the inexplicable inaction of Beecroft's counsel, and the likely resulting prejudice require us to act here to protect Beecroft's right to counsel. Accordingly, I would reverse Beecroft's conviction and grant Beecroft a new trial but would ground that reversal and new trial on the failure of trial counsel to provide effective assistance.
GILDEA, Chief Justice (dissenting).
The plurality reverses the guilty verdict in this case, not because it concludes that there was prejudicial error in the trial, but because the plurality concludes that reversal is in the "interests of justice." In my view, this is not a case where we should resort to our supervisory powers over the administration of justice to reverse. I also disagree with the concurrence that the performance of Beecroft's counsel requires a new trial. I therefore dissent. I would affirm the verdict and the decision of the
Beecroft raises four issues in this appeal from her conviction and the denial of her petition for postconviction relief. First, the district court improperly admitted the statement she made to the police at the hospital because the police did not give her an adequate Miranda warning and because she did not voluntarily waive her Miranda rights. Second, the postconviction court erred when it determined that state agents did not substantially interfere with defense experts and that any alleged governmental interference was harmless beyond a reasonable doubt. Third, even if the alleged due process violation was harmless, this court should order a new trial in the interests of justice. Fourth, defense counsel provided her ineffective assistance of counsel. I address each issue in turn after a discussion of the postconviction court's findings and conclusions.
Following conviction, Beecroft filed a petition for postconviction relief, claiming that she was entitled to a new trial because a state actor had violated her right to due process by interfering with her expert witness's decision to consult with the defense and to testify at trial. Specifically, Beecroft argued that Uncini's imposition of the 2007 employment provision precluding Ophoven from testifying in a Minnesota trial as a defense expert substantially interfered with Ophoven's ability to testify for the defense in lieu of Roe. In the alternative, Beecroft argued at the postconviction hearing that if the postconviction court concluded that she failed to preserve her due process claim, she was still entitled to a new trial because defense counsel's failure to preserve the due process claim would constitute ineffective assistance of counsel.
After an evidentiary hearing, the postconviction court issued an order denying Beecroft's petition for postconviction relief. As a threshold issue, the postconviction court found that Beecroft's decision not to call Roe as a trial witness "was primarily a strategic one (e.g., to avoid potential impeachment of her testimony), although the decision was addressed on the record due to inappropriate communication from Dakota County Attorney James Backstrom directed to Dr. Roe's supervisor and to the trial court."
The postconviction court then made the following findings regarding Beecroft's claim that a state agent substantially interfered with Ophoven's decision not to testify at trial. Defense counsel did not intend to call Ophoven as a witness because defense counsel understood that Ophoven did not testify for defendants. Uncini's imposition of the 2007 employment provision precluding Ophoven from testifying in Minnesota as a defense expert was not the product of any threat or pressure by agents of Saint Louis County.
Based on its factual determination that a state actor did not prevent through intimidation a defense witness's choice to testify at trial, the postconviction court concluded that Beecroft's due process claim failed. The court further concluded that, even if Beecroft had established substantial governmental interference with a defense witness's choice to testify at trial, Beecroft was not entitled to a new trial because the alleged due process violation was harmless beyond a reasonable doubt. The court emphasized that Ophoven's testimony was cumulative and that, "[a]ny testimony by Dr. Ophoven was either provided by another expert or rebutted by an expert called by the State with more experience in relevant areas." The postconviction court further emphasized that Ophoven would not have been a "critical witness" to the defense and that at the postconviction hearing Ophoven exaggerated her experience and "displayed an inability to remain professional on the stand."
The postconviction court also rejected Beecroft's ineffective assistance of counsel claim. The court explained that Beecroft failed to demonstrate that defense counsel's conduct fell below an objective standard of reasonableness because the evidence produced at the postconviction hearing did not support a finding that a state actor substantially interfered with a defense witness's choice to testify at trial.
With these findings and conclusions in mind, I turn to an analysis of the issues Beecroft raises. Concluding that the record supports the lower court decisions and that this is not a case where we must resort to our supervisory powers to reverse Beecroft's conviction in the interests of justice, I would affirm.
Beecroft's first contention is that she is entitled to a new trial because the district court erred when it denied her motion to suppress the statement she made to the police at the hospital. I agree with the plurality's conclusions that the Miranda warning Beecroft received was sufficient and that Beecroft voluntarily waived her Miranda rights. I therefore would hold that Beecroft is not entitled to a new trial based on the district court's admission of the statement she made to the police at the hospital.
Beecroft's second contention is that she is entitled to a new trial based on her assertion that government officials, who were not involved in the police investigation or prosecution, violated her right to due process by substantially interfering with her expert witnesses. Because the record supports the postconviction court's determination that the alleged governmental interference with defense witnesses was neither substantial nor harmful, I conclude that the court properly denied Beecroft's petition for postconviction relief.
The Minnesota Constitution guarantees that "[n]o person shall be held to answer for a criminal offense without due process of law." Minn. Const. art. I, § 7. The same protections are afforded under the Fourteenth Amendment of the United States Constitution. McCollum v. State, 640 N.W.2d 610, 617-18 (Minn.2002) (citing U.S. Const. amend. XIV, § 1; Minn. Const. art. I, § 7). These protections "are triggered only by state action." State v. Wicklund, 589 N.W.2d 793, 801 (Minn. 1999). Due process guarantees a criminal
Conduct by government agents that dissuades a potential witness from testifying may violate a defendant's right to due process. See Graham, 764 N.W.2d at 349; see also Lambert v. Blackwell, 387 F.3d 210, 260 (3d Cir.2004). To establish a due process violation, the government's conduct must "substantially interfere[]" with the witness's choice to testify. Lambert, 387 F.3d at 260; accord Graham, 764 N.W.2d at 349. Substantial interference can occur when, for example, a "government actor actively discourages a witness from testifying through threats of prosecution, intimidation, or coercive badgering." United States v. Serrano, 406 F.3d 1208, 1216 (10th Cir.2005).
Whether substantial government interference occurred is an "`extremely fact specific'" question, Graham, 764 N.W.2d at 350 (quoting United States v. Vavages, 151 F.3d 1185, 1190 (9th Cir.1998)), which appellate courts review for clear error, Lambert, 387 F.3d at 260; United States v. True, 179 F.3d 1087, 1090 (8th Cir.1999). Under the clear error standard, the lower court's factual finding will stand unless, on the entire record, "we are left with the definite and firm conviction that a mistake occurred." State v. Andersen, 784 N.W.2d 320, 334 (Minn.2010). If we find reasonable evidence to support the lower court's factual finding, we will not disturb the finding. State v. Evans, 756 N.W.2d 854, 870 (Minn.2008).
In addition, a determination that substantial governmental interference occurred does not automatically require a new trial. Peeler v. Wyrick, 734 F.2d 378, 381-82 (8th Cir.1984). If the court concludes that the substantial governmental interference was harmless beyond a reasonable doubt, a new trial is not required. Id. at 382; see also State v. Richardson, 670 N.W.2d 267, 277 (Minn.2003) (explaining that the harmless error standard controls the court's review of alleged violations of defendant's due process right to present a defense).
I begin my analysis of Beecroft's due process claims by considering whether the record supports the postconviction court's determinations regarding the existence of substantial governmental interference with Roe and Ophoven's testimony. I then consider whether the alleged governmental interference was harmless beyond a reasonable doubt.
I turn first to Beecroft's assertion that the conflict-of-interest debate between Backstrom and Thomas substantially interfered with Roe's decision about whether to testify at trial, thereby violating Beecroft's due process right to present a defense. Although Beecroft did not expressly
After reviewing the entire record, I am not left with a definite and firm conviction that the postconviction court made a mistake when the court implicitly found that Backstrom did not substantially interfere with Roe's testimony. The record demonstrates that it was Beecroft's counsel's strategic decision not to call Roe that created Roe's unavailability. The strategic nature of Beecroft's decision not to call Roe as a witness is evidenced by four facts.
First, Beecroft's counsel expressly stated that the defense would "not in any way suggest" that Backstrom's communications were the only reason that Beecroft chose not to call Roe as a witness. Second, Roe's equivocal opinion on the cause of death limited her usefulness as a defense expert. Third, the prosecutor intended to impeach Roe with her prior autopsy reports and her prior inconsistent testimony as a State's witness in a case in Wisconsin. Fourth, defense counsel's decision not to call Roe as a witness, after receiving Backstrom's clarifying e-mail (expressly stating that he did not intend to interfere with Roe's decision about whether to testify in Beecroft's trial), indicates that Backstrom's e-mails did not substantially interfere with Roe's decision not to testify. Because the record supports a finding that the conflict-of-interest debate between Backstrom and Thomas did not "substantially" interfere with Roe's decision not to testify at trial, I conclude that Backstrom did not violate Beecroft's right to due process.
I next turn to Beecroft's assertion that Uncini's request that Ophoven "perform no criminal defense work in the State of Minnesota" substantially interfered with Ophoven's decision not to testify at trial, thereby violating Beecroft's due process right to present a defense.
The postconviction court rejected Beecroft's due process claim relating to the alleged interference with Ophoven. The court explained that there was no due process violation because Uncini was not a "state actor," there was no error because there "was no governmental intimidation of . . . Ophoven," and there was no prejudice because Ophoven's testimony would not have been helpful. It is not necessary for me to determine whether Uncini was a state actor because even assuming he was, the record supports the postconviction court's factual finding that there was no substantial governmental interference with
At the postconviction hearing, Uncini testified that the imposition of the 2007 term of employment, precluding Ophoven from testifying in Minnesota as a defense expert, was not the product of any threat or pressure by agents of Saint Louis County. Uncini also testified that the term of employment did not apply to testimony given under subpoena. Defense counsel conceded that they never subpoenaed Ophoven. Ophoven testified that her earnings as a part-time employee of Uncini were a minor percentage of her total income as a physician. Ophoven also admitted that she never asked Uncini about the possibility of testifying at Beecroft's trial. Because the record supports the postconviction court's finding that there was no substantial governmental interference with Ophoven's decision not to testify at Beecroft's trial, I conclude that Uncini did not violate Beecroft's right to due process.
Even if the record failed to support the postconviction court's factual findings regarding the existence of substantial governmental interference with Roe and Ophoven's decisions on trial testimony, Beecroft would not be entitled to a new trial because the alleged governmental interference was harmless beyond a reasonable doubt. A violation of a defendant's due process right to present a defense is harmless if the reviewing court is satisfied beyond a reasonable doubt that if the evidence had been admitted and the damaging potential of the evidence fully realized, a reasonable trier of fact would have reached the same verdict. State v. Post, 512 N.W.2d 99, 102 (Minn.1994). On the other hand, "if there is a reasonable possibility that the verdict might have been different if the evidence had been admitted, then the erroneous exclusion of the evidence is prejudicial." Id.
After reviewing the record in Beecroft's case, I am satisfied beyond a reasonable doubt that if Roe and Ophoven's testimony had been admitted and the damaging potential of their testimony fully realized, a reasonable trier of fact would have reached the same verdict. Beecroft presented two qualified experts who testified to the same ultimate conclusion that Ophoven would have presented and provided more favorable testimony than Roe could have presented. Roe and Ophoven's testimony, therefore, would have been either cumulative or unhelpful. In addition, the postconviction court, which was also the fact-finder at trial, found that Ophoven lacked credibility and would have had limited usefulness as a witness.
The strength of the State's case as a whole also supports the conclusion that the verdict would not have been different if Roe or Ophoven had testified. The district court did not need any expert testimony to find that the baby was alive when Beecroft stabbed her. The court could have drawn those inferences against Beecroft on this element of the crime from the fact that Beecroft went to great lengths to hide her pregnancy, lied to the police and her family on several occasions about the baby's birth and death, premeditated and planned the stabbing, stabbed the baby 135 times, never sought help for herself or the baby either before or after giving birth, obtained weapons, admitted twice to seeing the baby move her finger and open her eyes, and disposed of the body and evidence of the birth in the garbage. As the court stated in its verdict findings, "there would be no reason to stab a child that was not born alive." I therefore would hold that even if Beecroft had established a due process violation with respect
Beecroft's third contention is that even if the alleged due process violation was harmless beyond a reasonable doubt, we should order a new trial in the interests of justice. The power to reverse prophylactically in the interests of justice "comes from our power to supervise the trial courts." State v. Salitros, 499 N.W.2d 815, 820 (Minn.1993). When exercising that power, our focus "`is not the punishment of society for the misdeeds of the prosecutor.'" State v. Graham, 764 N.W.2d 340, 358 (Minn.2009) (quoting Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)). Rather, we rely on our supervisory power in order to "avoid[] an unfair trial to the accused." Id. And we have reserved the use of power based on an interests-of-justice analysis for "exceptional situations." Gassler v. State, 787 N.W.2d 575, 586 (Minn.2010). My review of the record convinces me that this is not such a case.
I acknowledge government action in this case that was contrary to established standards of conduct. Specifically, the Office of Lawyers Professional Responsibility found that Backstrom "threaten[ed] to withdraw support for an official appointed by the county board unless the official barred her subordinates from testifying as defense experts in criminal cases" and recommended that he be disciplined pursuant to Minn. R. Prof. Conduct 8.4(d). In re Backstrom, 767 N.W.2d 453, 453 (Minn. 2009). Rule 8.4(d) provides that "[i]t is professional misconduct for a lawyer to. . . engage in conduct that is prejudicial to the administration of justice." Backstrom admitted that his conduct was contrary to the rules of professional conduct, and he was disciplined for his actions related to this case. See Backstrom, 767 N.W.2d at 453. Thus, Backstrom's conduct implicates the interests of justice.
Further, Minnesota law provides that a "medical examiner is an independent official of the county, subject only to appointment, removal, and budgeting by the county board." Minn.Stat. § 390.011 (2010) (emphasis added). This chapter also provides that when requested, a medical examiner may "make physical examinations and tests incident to any matter of a criminal nature under consideration by the district court or county attorney, law enforcement agency, or publicly appointed criminal defense counsel, and shall deliver a copy of a report of such tests and examinations to the person making the request." Minn.Stat. § 390.251 (2010). The legislature has thereby expressed that medical examiners are independent county officials whose services are available to both prosecuting officials and criminal defendants. Accordingly, a prohibition on Ophoven performing any criminal defense work in Minnesota would interfere with Ophoven's independence as a medical examiner and evidence a disregard for the policy expressed in Minnesota statutes.
But this is the first case where we have been presented with an argument that county attorneys are interfering with the independence of medical examiners. Before resorting to our supervisory powers and ordering reversal in the interests of justice, we have typically expressed disapproval of the behavior and warned about the potential remedy for future similar misbehavior. See, e.g., State v. Merrill, 428 N.W.2d 361, 373 (Minn.1988) ("We thus specifically warn St. Louis County and prosecutors generally for the last time that we will no longer tolerate the tactics used by the prosecution in closing arguments in this case. The prosecution can expect a reversal if such tactics are used
We have, however, grounded such interest-of-justice reversals in our concern with the integrity of the judicial process. See State v. Windish, 590 N.W.2d 311, 319 (Minn.1999) ("But ultimately the criminal justice system, including judges, prosecutors and defense lawyers, is responsible for the fair administration of justice. And while the wrongs in this case do not reach the level of a constitutional violation, we are convinced that the system did not serve the interests of justice."); see also Gassler, 787 N.W.2d at 587 (noting that "[w]e have . . . acted in the interests of justice when necessary to protect the integrity of judicial proceedings"). The integrity of the judicial process is undermined when our rules are "skirt[ed]" and our admonitions "disregard[ed]." Lefthand, 488 N.W.2d at 802. The process is also undermined when the errors leave us with doubt as to the fairness of the defendant's trial. See, e.g., State v. Clifton, 701 N.W.2d 793, 800 (Minn.2005) (declining to exercise supervisory powers when the defendant received a fair trial).
Those concerns do not support reversal here. In this case, because we have not had occasion to pass upon the behavior at issue—alleged interference with the county medical examiner's independence—we cannot say that our rules have been avoided or our warnings ignored. More importantly, careful review of the record establishes, in my view, that Beecroft did, in fact, receive a fair trial. The evidence with which Beecroft now contends the government interfered was in fact placed before the trier of fact through testimony from other witnesses. The prosecutor who tried this case is not accused of violating the rules, of interfering with Beecroft's presentation of her defense, or of attempting to persuade the trier of fact by improper means. Finally, the evidence of Beecroft's guilt is overwhelming as discussed above. Under these circumstances, reversal of Beecroft's conviction would not serve the interests of justice. See Gassler, 787 N.W.2d at 587 ("We have recognized, however, that under certain circumstances the reversal of a conviction may seriously affect the fairness, integrity, or public reputation of judicial proceedings.").
Finally, I turn to Beecroft's claim that she was deprived of effective assistance of counsel due to her counsel's failure to pursue a claim based on a violation of due process at trial. The Sixth Amendment guarantees a defendant the effective assistance of counsel. State v. Wright, 719 N.W.2d 910, 919 (Minn.2006). To prevail on an ineffective assistance of counsel claim, an appellant "must show that (1)[her] counsel's performance fell below an objective standard of reasonableness, and (2) that a reasonable probability exists that, but for [her] counsel's unprofessional errors, the result of the proceedings would have been different." State v. Yang, 774 N.W.2d 539, 564-65 (Minn.2009); see Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Ineffective assistance of counsel claims present mixed questions of law and fact that we review de novo. State v. Rhodes, 657 N.W.2d 823, 842 (Minn.2003).
It is not necessary for me to reach the first prong of the Strickland analysis because, even if counsel's performance was defective under this prong, Beecroft's claim would fail under the second prong, the prejudice part of the analysis. See
Beecroft asserts that if counsel "had prevailed on a motion asserting she was deprived of the right to present a defense, she would have had the benefit of Roe's and Ophoven's testimony," which in turn would have created a reasonable probability of a different verdict. I disagree.
As discussed above, Beecroft presented favorable expert testimony through other witnesses. Roe and Ophoven's testimony, as a result, would have been cumulative. In addition, like the alibi witness in Patterson, 670 N.W.2d at 442, the probative value of the expert testimony at issue would not have been sufficiently great so as to create the probability that the trial's outcome would have been different. With respect to Roe, she stated in her expert report that she was not certain whether Beecroft's baby was born alive or stillborn. Moreover, the State would have impeached Roe with the transcript of her testimony as a State's witness in a Wisconsin case and several of her prior autopsy reports, all of which expressed opinions that were inconsistent with her opinions in Beecroft's case. With regard to Ophoven, this case presents the rather unique situation in which the district court judge who presided over and acted as the fact-finder in Beecroft's court trial later heard and evaluated Ophoven's expert testimony at the postconviction hearing. The judge specifically found that
Finally, the court did not need any expert testimony to determine that Beecroft caused the death of her baby because of the strength of the State's case as a whole including Beecroft's own admissions that the baby moved her finger and opened her eyes before Beecroft stabbed her.
Based on my review of the record in this case, I conclude that Beecroft has failed to show that there is a reasonable probability that, but for her counsel's alleged unprofessional errors, the outcome of the proceedings would have been different in her case. I therefore would hold that Beecroft's ineffective assistance of counsel claim fails.
DIETZEN, Justice (dissenting).
I join in the dissent of Chief Justice Gildea.
I join all but part III of the Chief Justice's dissent. I agree with the Chief Justice that state action did not deprive Beecroft of her constitutional right to present a complete defense. I also agree that, even if there was error, the error was harmless.
However, I write separately to address the plurality's conclusion that we should use our supervisory power to reverse prophylactically in the "interests of justice." The facts of this case do not implicate our supervisory power because there is neither error nor prejudice present in this case, one or the other of which is necessary under our case law to invoke the interests of justice as a basis for reversal. See, e.g., Shorter v. State, 511 N.W.2d 743, 747 (Minn.1994); State v. Salitros, 499 N.W.2d 815, 819-20 (Minn.1993). In the absence of error and prejudice, a reversal frustrates the interests of justice by creating an appearance that we are arbitrarily selecting a particular defendant for relief, even if there has been no effect on the constitutional rights of the defendant or the fairness of her trial. See Gassler v. State, 787 N.W.2d 575, 587 (Minn.2010) ("[U]nder certain circumstances, the reversal of a conviction may seriously affect the fairness, integrity, or public reputation of judicial proceedings.").
More broadly, however, the court's reversal in this case raises legitimate questions about our authority to reverse prophylactically in the interests of justice. To be sure, we have recognized such authority in "exceptional situations" in the past. Id. at 586. But I can find no basis in either the United States or Minnesota Constitutions for the power to prophylactically reverse a conviction in the interests of justice. And although our explanations vary, we apparently invoke the "interests of justice" under our inherent "supervisory power," which allows us to direct a disposition when we are particularly offended or outraged by the conduct of one or more of the parties in a case, even if the governing constitutional principles or statutory requirements do not require a reversal.
The response, of course, is that surely there is some standard, or at least relevant indicia, of when it is appropriate to direct a prophylactic reversal in the interests of justice. However, I have failed to find any controlling legal principles in our case law that provide guidance for when it is, and is not, appropriate to invoke the interests of justice. In some cases, we invoke the interests of justice when we find error but no prejudice. See, e.g., State v. Hunt, 615 N.W.2d 294, 299 n. 6 (Minn.2000) ("[W]e have . . . granted a new trial in the interests of justice without a showing of prejudice."); State v. Kaiser, 486 N.W.2d 384, 387 (Minn.1992) ("`[A]lthough the evidence of defendant's guilt was strong, we conclude that a new trial is required in the interests of justice.'" (quoting State v. Schwantes, 314 N.W.2d 243, 245 (Minn. 1982))). In others, we prophylactically reverse when there is no error, but the objectionable circumstances prejudiced the defendant. State v. Windish, 590 N.W.2d 311, 319 (Minn.1999) (finding no error but concluding that the prevalence of procedural irregularities "suggest[ed] harm" to the defendant's case). Likewise, in some circumstances, we have required the issuance of a warning from this court before reversing a conviction in the interests of justice. See State v. Merrill, 428 N.W.2d 361, 373 (Minn.1988). In others, we have exercised our power to reverse in the interests of justice despite the absence of a warning. See Schwantes, 314 N.W.2d at 244.
Consequently, a leading treatise on Minnesota law accurately describes the power to reverse in the interests of justice as applying in a "very broad" kaleidoscope
Ultimately, I need not conclusively resolve the continued viability of our highly subjective interests-of-justice jurisprudence. Whatever the scope of the power to reverse in the interests of justice, it is sufficient to conclude that applying it here, in which I conclude neither error nor prejudice has been established, would impermissibly expand the scope of the power beyond its recognized bounds in our case law. I therefore respectfully dissent.
John F. Decker, Expert Services in the Defense of Criminal Cases: The Constitutional and Statutory Rights of Indigents, 51 U. Cin. L.Rev. 574, 579 (1982).
In this case, the failure of defense counsel to move the district court for a mistrial is troubling. But the record is insufficiently developed to determine whether that failure was motivated by an objectively reasonable trial strategy or the failure, once again, to take any action to protect the interests of Beecroft. In any case, it is not necessary to resolve that question here given the foreclosure of any possible relief to Beecroft for the due process violations.
