Quandaries & Quagmires: Discipline prosecutors for good faith mistakes?

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“Getting More Serious About Prosecutorial Misconduct” is the title of a January/February 2026 Bench & Bar of Minnesota article by Kevin Slator. The article’s first subject is a petition, pending in the Minnesota Supreme Court, to amend Rule 3.8 (“Special Responsibilities of a Prosecutor”), Minn. R. Prof. Conduct (MRPC) to enhance prosecutors’ disclosure obligations.

The article’s other main subject involves two 10-year-old, unpublished, never-cited cases, State v. Whitcup and In re Olson.¹  Why does the article feature such backwater cases? Having failed to prevail as discipline counsel in Olson, Mr. Slator now argues that “getting more serious” should result in discipline, rather than dismissal, in cases like Olson.

In this article, I will consider the merits of Slator’s suggestion that prosecutors whose conduct results in reversal of a conviction should be publicly disciplined for “conduct prejudicial to the administration of justice” under Rule 8.4(d), MRPC. I will also briefly comment on Slator’s argument that Whitcup and Olson will “show that the so-called rebuttal evidence to Rule 9.01, Minn. R. Crim P., rests on a shaky foundation and should be narrowed or eliminated.” But first I will provide the facts of the Olson case that are not found in the Bench & Bar article.

Whitcup reversed a conviction because the prosecutor, Olson, did not provide documents to defense counsel before using the documents to impeach and rebut the evidence of a defense witness. The documents were letters Whitcup had written from jail, trying to persuade a girlfriend to give false alibi testimony. Olson did not produce the letters because, after research and extensive consultation, she concluded that they were “rebuttal evidence,” and that rebuttal evidence does not have to be produced.

After a jury verdict of guilty, Whitcup’s attorney moved for a new trial. The trial court found that Olson did not act in bad faith, that Minnesota law on the crucial issue was not clear, that Olson should nonetheless have produced the letters, but that evidence of Whitcup’s guilt was so strong that the guilty verdict should stand. A panel of the Court of Appeals reversed and made findings — without any evidentiary hearing — that Olson deliberately and knowingly failed to produce the letters in violation of rules of criminal procedure. These findings are quoted in Slator’s article.

Based on the Court of Appeals decision in Whitcup, the Office of Lawyers Professional Responsibility (OLPR) filed a disciplinary petition against Olson. I represented Olson. Buried in footnote 35 of Slator’s article is the fact that he represented OLPR.

After a disciplinary trial, a Supreme Court Referee found that Olson acted in good faith, concluded that Olson did not violate the MRPC, and recommended the petition be dismissed. Slator’s article twice states falsely that the disciplinary petition was “dismissed by the Court’s appointed referee.” Any lawyer with expertise in disciplinary law knows that, as a matter of law, “The referee shall make findings of fact, conclusions, and recommendations.” Rule 14(e), R. Law. Prof. Resp. The Referee recommends, the Referee does not dismiss.

Slator’s article reports that after the purported dismissal by the referee, “OLPR did not pursue the matter any further.” It is true that OLPR did not contest the Referee’s findings, conclusions, or recommendation. The article does not report that the Director, Slator, Olson, and I signed and filed a stipulation providing, “[T]he Director and respondent join in recommending the [Supreme] Court adopt the recommendation of the Referee and dismiss the petition in this matter.”² If the article’s readers had been informed, they would have wondered how the same Slator who recommended dismissal of Olson to the Supreme Court in 2016, would publish a 2026 article questioning how a reasonable referee could have (purportedly) dismissed Olson.

The Supreme Court is not bound by stipulations and sometimes rejects them. However, in Olson, the Court ordered dismissal. The Court apparently saw no inconsistency in denying review of Whitcup and dismissing Olson. The Court no doubt recognized that the two cases were based on very different evidentiary records.

The central question in Olson was whether her failure to produce documents was a good faith mistake.³ At the disciplinary trial, OLPR had the burden of proving misconduct by clear and convincing evidence. Astonishingly, the only witness OLPR called was Olson. Unsurprisingly, Olson’s testimony that she did research and extensive consultation regarding the disclosure issue did not further OLPR’s case. Mr. Slator relied heavily on Whitcup, even though he had stipulated before trial that Whitcup “(1) is not preclusive as to rulings of the district court and court of appeals; (2) is not precedential; and (3) can be at best of persuasive value in these proceedings.”

Slator writes that Olson “was arguably deceitful in withholding Whitcup’s letters,” then using them to cross-examine an alibi witness. Slator made the same argument in 2016 and lost it. Why? In the discipline case, Slator did not offer testimony from the person who was purportedly deceived, defense counsel. Why not? Because defense counsel volunteered in the Whitcup proceedings, “Now, I’m not quarreling with the prosecution’s good faith here. They had Yang so they at least had an argument that they could do this sort of thing [not produce the letters] … .” Likewise, the trial court judge, considering a motion to vacate the conviction, found that Olson did not act in bad faith. To put it mildly, the opinions of the defense counsel and the trial judge that Olson acted in good faith and had an arguable basis for not producing documents would not provide clear and convincing evidence of deceitfulness.

In contrast, Olson provided the testimony of seven attorneys and a judge. One of the attorneys was the Lawyers Board Chair. Two attorneys were public defenders, three were prosecutors on whose advice Olson relied, and one was an expert in prosecutorial conduct. Collectively, Olson’s witnesses testified that Olson tried her best to do the right thing, that she consulted on whether the Whitcup documents had to be produced, and followed the advice she received, that the underlying law on the rebuttal evidence exception to disclosure obligations was murky, and that she customarily could be relied on to follow rules and to produce evidence as required by law.

Having conceded that Whitcup was “at best of persuasive value” in the discipline proceedings, Slator did not explain why Whitcup should actually persuade the Referee. Whitcup made findings — although the Court of Appeals is not a fact-finding court — of Olson’s state of mind without the benefit of an evidentiary hearing. In contrast, the disciplinary Referee had the benefit of testimony of seven lawyers and a judge about Olson’s state of mind. Moreover, the Referee did what OLPR failed to do — independently evaluate both the witness testimony and the appellate court record.⁴ The Referee reported, “This Referee found no evidence in the trial record to support the Court of Appeals’ statements.  Why the Court of Appeals chose to ignore the comments of the trial judge relating to respondent’s conduct during the trial is a mystery to this Referee.”

Assuming that “Getting More Serious About Prosecutorial Misconduct” is a desirable goal, should prosecutors be disciplined under Rule 8.4(d) (“conduct prejudicial to the administration of justice”) for good faith mistakes that result in reversals of convictions?  This appears to be Slator’s position in writing, “[E]ven though the administration of justice was plainly prejudiced by the reversal of Whitcup’s conviction, the Referee dismissed the petition for disciplinary action.” To the same effect, Slator writes, “[A] violation of Rule 8.4(d)…  can be established without proof of intent.”

Minnesota prosecutors and other attorneys have not, historically, been subject to public discipline for isolated, good faith mistakes. The Director has written that even private discipline for such mistakes is rare, “Sometimes a lawyer inadvertently contacts a represented party directly by serving documents in a case because they failed to note in the lawyer’s file management system that the opposing party is represented by counsel. Mistakes happen (I’ve done this) and such a mistake rarely leads to discipline.”⁵ Lawyers Board Panels have reversed admonitions in “isolated mistake” cases.⁶  Although the OLPR Director has announced her intent to hold prosecutors accountable, neither the Director nor the Lawyers Board have shown intent to seek public discipline whenever a conviction is reversed for prosecutorial misconduct.⁷

In 2007, OLPR investigated whether a prosecutor should be disciplined for prosecutorial misconduct that resulted in reversal of a first-degree murder conviction. The Minnesota Supreme Court described the prosecutorial misconduct as “a pervasive force at trial” and “unprecedent in this court’s memory.”⁸ OLPR issued a Determination That Discipline is not Warranted, with a 20-page memorandum explaining why dismissal was appropriate. Although the OLPR documents were not received into evidence in Olson, they are in the court file.

Minnesota prosecutors have been disciplined for prosecutorial misconduct when the conduct does not involve a good faith mistake and the misconduct otherwise warrants discipline. At least 17 county attorneys, assistant county attorneys, or city attorneys with Minnesota licenses have been publicly disciplined.⁹

The Supreme Court has stated that public attorneys, including prosecutors, are held to a higher standard. The Court has recently clarified that a higher standard applies only when a public attorney engages in an abuse of power or violation of constitutional rights.¹⁰ Some prosecutorial misconduct, such as failure to produce exculpatory evidence, would involve constitutional violations.

The Slator article also argues, “the prosecutor was arguably deceitful in withholding Whitcup’s letters and then springing them to cross-examine [a witness].” But rebuttal evidence does not have to be disclosed, so it will often catch a witness by surprise. Moreover, the words “was arguably” have a 2016 date, and “arguable” became “was argued unpersuasively” when the Referee found that Olson acted in good faith and OLPR did not contest the finding.

Before concluding, a response is due to Slator’s argument to reduce or eliminate the rebuttal evidence doctrine. Rebuttal evidence is a case law-created exception to the prosecutors’ duties to produce non-exculpatory evidence. An important rebuttal evidence case, cited repeatedly in Olson and in Slator’s article is State v. Yang, 627 N.W. 2d 666 (Minn. Ct. App. 2001), review denied. Having promised that Whitcup and Olson will “show that the so-called rebuttal evidence exception to Rule 9.01, Minn. R. Crim. P., rests on a shaky foundation” Slator offers disclaimer rather than analysis: “There is reason to believe that State vs. Yang misapplied the exception to statements, but that discussion is beyond the scope of this article.”

One basis for Slator’s arguments for reforming the judicial doctrine of rebuttal evidence is “prosecutors would not be burdened by the potentially difficult determination of whether information or evidence is rebuttal evidence that does not have to be disclosed to a criminal defendant.” If the law of rebuttal evidence is murky, why did OLPR seek to discipline a lawyer who did her best to determine whether the Whitcup letters were rebuttal evidence?

Mr. Slator can put In re Olson forward as a poster child for getting more serious about prosecutorial discipline only by omitting both his own recommendation that the Olson be dismissed and the abundant evidence of Olson’s good faith presented at trial. If Slator is proposing that prosecutors should be disciplined for good faith mistakes, like Olson’s, he is unlikely to find support from OLPR, the Lawyers Board, or anyone who thoughtfully considers professional discipline.

William J. Wernz is the author of the online treatise, “Minnesota Legal Ethics.” He has been a member of the Board on Judicial Standards, and he has served as Dorsey & Whitney’s ethics partner and as director of the Office of Lawyers Professional Responsibility.

Notes

1. State v. Whitcup, 2015 WL 4994398 (Minn. Ct. App. 8/24/2015); In re Olson, File No. A16-0280 (Minn., Order for Dismissal, Sept. 9, 2016). Slator introduces Whitcup as “recent.”
2. Slator and I negotiated the terms of the stipulation through several communications and drafts. It was not a routine and easily forgotten document.
3. Rule 3.4(c), “A lawyer shall not knowingly disobey an obligation under the rules of a tribunal . . . .”
4. Slator did not even attempt to interview Olson’s witnesses until shortly before trial.
5. Susan Humiston, Private Disciplines in 2022, Bench & B. of Minn., Apr. 2023.
6. Charles E. Lundberg, When Does a Mistake Violate Rule 1.1 (Competence) or Similar Rules?, (Oct. 3, 2011).
7. Susan Humiston, Prosecutorial Ethics—Holding Ministers of Justice to Account, Bench & B. of Minn., Oct. 2020 and Susan Humiston, Prosecutorial Ethics
—Part Two, Bench & B. of Minn., Nov. 2020.
8. State v. Mayhorn, 720 N.W.2d 776 (Minn. 2006).
9. For citations, See William J. Wernz, Minnesota Legal Ethics (15^th ed. 2025) at 22-3. For an example of a prosecutor disciplined for knowingly withholding evidence, including exculpatory evidence, see In re Morris, 419 N.W.2d 70 (Minn. 1987).
10. In re Bloomquist, File A21-1411 (Minn., Mar. 23, 2023).