Minnesota Lawyer
Deputy Brian Krook alleges Ramsey County withheld exculpatory evidence from an expert who did not testify. The office responded in writing by Dennis Gerhardstein:
“While [Assistant Ramsey County Attorney Richard] Dusterhoft did connect with Chief [Steven] Frazer (then with the Ramsey County Sheriff’s Office) for recommendations about who to contact regarding tactics, Chief Frazer was never considered as a person to be used as an expert witness. Mr. Dusterhoft provided the investigative file as it existed at the time to Chief Frazer for context. When he returned the file, Chief Frazier provided the tactical expert recommendations as requested, and also said that he thought the shoot was good. There was no written opinion to that effect, no extensive discussion, and Mr. Dusterhoft forgot that Chief Frazer had said anything about it. RCAO prosecutors [Thomas] Hatch and [Andrew] Johnson, who presented the case to the grand jury, were unaware of any contact between Mr. Dusterhoft and Chief Frazer.
“The defense moved to dismiss the indictment because of a failure to disclose Chief Frazer’s opinion to the grand jury. In reality, Mr. Dusterhoft had forgotten about the oral, summary opinion that Chief Frazer had provided. A hearing was held on that subject, and the Court credited the testimony of Chief Frazer. Chief Frazer claimed that he had had extensive discussions with Mr. Dusterhoft, where they looked at video together (while on the telephone) and that their discussions went on for about one and one-half hours. The RCAO was not aware at the time of the hearing on the motion to dismiss that Chief Frazer would make such a claim, but after the hearing, the RCAO obtained the telephone records which revealed that Mr. Dusterhoft had two phone calls with Chief Frazer, with the longest one being 19 minutes. Moreover, the only video available at the time was too dark to see what happened. The squad video that was shown at trial was enhanced (lightened), and that enhanced video was not created until well after Chief Frazer provided his comments to Mr. Dusterhoft.
“The Court did not consider the phone records because they were submitted after the hearing and did not see the video that would have been available to Chief Frazer at the time. The Court concluded that there had been an extensive discussion between Chief Frazer and Mr. Dusterhoft. We believe the Court got this wrong. Ultimately, the Court ruled that Chief Frazer’s opinion would not have changed the indictment.”
