On trial for manslaughter, Washington County Sheriff’s Deputy Brian Krook took the stand and carried the trial although he was countered by three use-of-force expert witnesses for the state, according to his lawyers, Kevin Short and Paul Engh.
Krook shot and killed Benjamin Evans, a Lake Elmo man kneeling in the middle of the road, holding a loaded gun to his head that he refused to put down, although he was asked 50 times, his lawyers said. Then he turned in a way that the gun pointed at three of the deputies who were about 30 feet away.
Getting to the jury was problematic for Krook. First he had to go through a grand jury, which returned an indictment, and then an omnibus hearing where his motions to dismiss the indictment were denied. It would have been a rarity had they been granted because a presumption of regularity attaches to the grand jury process. But Krook and his lawyers challenged it anyway, challenging the state’s probable cause and alleging that the state withheld exculpatory evidence.
The tragic events of April 12, 2018, are recounted by Washington County District Court Judge Mary Yunker in a 20-page omnibus hearing order from January 2020. Police were called about a suicidal male and found Evans kneeling in the street holding a gun to his head. Deputies talked with Evans, who remained in the street.
Yunker determined that Evans again moved so that the muzzle of the gun held to his head was aligned in the direction of the deputies near one of the squad car, so that a fired bullet traveling through or past the head, if not deflected or spent, would continue toward the officers. Defendant fired four rounds from his .45 caliber Glock handgun at Evans. He was charged with second-degree manslaughter.
Two experts for the state told the grand jury that the use of force was unreasonable. One said Krook did not act consistently with his training.
After the grand jury indicted, Krook moved to dismiss for lack of probable cause, insufficient evidence, failure to present exculpatory evidence to the grand jury, and to disqualify the Ramsey County Attorney and the Ramsey County Attorney’s Office from prosecuting the case. (Ramsey County was appointed as the conflict prosecuting office.)
Yunker determined that there was sufficient evidence of probable cause. She wrote that the grand jury could conclude Defendant’s conduct was culpably negligent, that is, he created an unreasonable risk and consciously took a chance of causing death or great bodily harm by exposing himself to the danger presented by Evans by failing to take cover and by advancing on him while he was still armed. She also said there was evidence supporting the conclusion that defendant’s actions as a peace officer were not authorized by law because his perception of the danger presented was not reasonable and the danger was created by his own negligence.
Short and Engh said in their statement, “Deputy Krook’s testimony [at trial] was consistent with the eight other officers on the scene, i.e., the armed man posed the imminent risk of great bodily harm to all nice officers and the civilians who lived nearby.”
Yunker also ruled that “exonerating” “exculpatory” evidence was not excluded from the grand jury proceeding because the state had no responsibility to include it. “[T]here is no federal constitutional right to presentation of exculpatory evidence to the grand jury, notwithstanding the fact that the evidence is known to the government and defendant is constitutionally entitled to disclosure of that evidence during the trial procedure as a matter of due process of law, that is, the evidence is Brady material,” the judge concluded. “[A] grand jury target has never had the right to present a defense in the grand jury proceeding.” However, the judge continued, the grand jury has always had the duty to assess the evidence necessary to make a fair decision regarding indictment, and a prosecutor should not knowingly withhold evidence from the grand jury which would tend to substantially negate a suspect’s guilt.
But the judge distinguished between evidence which would tend to substantially negate a suspect’s guilt, and exculpatory Brady evidence. “[T]o be exculpatory the evidence must be more than simply defendant’s alternative theory of the case. And unless exclusion materially affected the decision to indict, failure to present to the grand jury what may certainly be Brady evidence in the trial context will not invalidate an indictment,” Yunker said. Although the judge faulted the prosecutors for withholding evidence, she did not dismiss the indictment.
“It is inexcusable the contrary expert opinion was not presented to the Grand Jury, and its exclusion was knowing prosecutorial misconduct. However, contrary to Defendant’s assertion, prosecutorial misconduct is not an automatic ground for dismissal of an indictment, but must be considered in the context of whether the misconduct ‘substantially influenced the Grand Jury’s decision to indict’ so that there is ‘grave doubt that the decision to indict was free of any influence of the misconduct,’” the judge concluded. (See sidebar for Ramsey County response on prosecutorial misconduct.)
The judge also denied the defendant’s motion to disqualify the Ramsey County Attorney’s Office as the prosecuting authority because continued representation would violate the “advocate-witness rule” of the Minnesota Rules of Professional Conduct. The office, through attorney Richard Dusterhoft, allegedly had received expert witness information that the defendant characterized as exculpatory. (See sidebar.) But the judge said the defendant failed to show that Dusterhoft would be a necessary witness at trial.
“Defendant makes no attempt to explain how he would be deprived of a fair trial if he is permitted to call Mr. Dusterhoft at trial to challenge an anticipated attempt by the State to impeach his expert witness,” Yunker wrote. (Emphasis by court.)
Short and Engh commented in their statement to Minnesota Lawyer about the judge’s ruling.
“After the conclusion of the BCA investigation, the Ramsey County Attorneys sought out and obtained an expert use of force expert opinion which exonerated Deputy Krook. The prosecutors were well aware of the requirement that evidence favorable to a target has to be presented to the grand jury. Instead opinions of two additional experts were offered to the grand jurors – that Deputy Krook’s conduct was indeed unreasonable – while knowing full well the first expert contacted had disagreed. His opinion was omitted from grand jury consideration altogether. To make matters worse, the Ramsey County Attorney’s Office kept evidence favorable to Deputy Krook from its own experts, namely that the BAC of the deceased was .204, and that he had written two specific suicide notes that evening in anticipation of his death.
“The import of the District Court’s Omnibus Order is in the finding of misconduct by the Ramsey County Attorneys, a finding that undercuts the public’s assumption that the grand jury process ought to be fair to both sides,” the statement said.
The Ramsey County Attorney’s Office statement said:
“At trial, the deputies who testified at the grand jury changed their testimony and claimed that they had always been in fear of death or great bodily harm. They were impeached with their grand jury testimony. The State also presented the testimony of three expert witnesses who opined that deadly force was not appropriate in this situation. The Court denied the defense motion to dismiss after the State rested its case. The jury was out for 6.5 hours and ultimately returned a verdict of not guilty.
“Conclusion: The decision to prosecute was based on a fair presentation of the evidence before the grand jury and a fair trial resulted in a verdict of not guilty.”
A third expert for the state told prosecutors that the use of force was reasonable and the supervision of police at the scene was appropriate. That expert did not testify.