Rare mistrials declared due to prosecutor conduct

Prosecutor’s actions resulted in dismissal of two criminal cases

Two First District judges have thrown out two criminal cases tried by Dakota County Assistant Attorney Kevin Golden, finding he twice created a mistrial so he could retry defendants, according to court orders.

Among the findings in the rulings is that Golden held back evidence, dismissed witnesses early and made statements to provoke mistrials in criminal cases so he could retry them.

Hamline University law professor and former prosecuting attorney Joseph Olson called the cases “astonishing” and said based on the rulings, the findings of prosecutorial misconduct against Golden are “so egregious” that the cases should be reviewed by the Lawyers Professional Responsibility Board.

“It’s certainly worthy of investigating and worthy of some kind of professional sanction,” Olson said. “I’m amazed the county attorney didn’t fire him after the first case because he … deliberately misused the process.”

Dakota County Attorney James Backstrom said he is disappointed the trial courts did not allow the county to continue with the prosecutions, stating Golden made mistakes, but did not intentionally try to cause mistrials.

“I strongly disagree with the labeling of anything Kevin Golden did as being prosecutorial misconduct,” Backstrom said. “These were inadvertent mistakes which can happen to anyone under the stress of trial proceedings.”

The orders were issued Oct. 24, 2008, by now-retired Judge Leslie Metzen and April 5, 2012, by Judge Joseph T. Carter.

Both judges indicate in their rulings that Golden violated a defendant’s constitutional rights against double-jeopardy, being prosecuted twice for the same offense or “unduly harassed … until the desired result is achieved,” according to Minnesota Supreme Court Justice Rosalie E. Wahl in an opinion cited in Metzen’s ruling.

In that 2008 case involving a fight, Golden was seeking to prosecute the defendant for the same crime a third time.

The first time, the case was dismissed because Golden was unable to locate the alleged victim.

Backstrom said witnesses are often fearful to testify.

Golden next issued a warrant for the defendant’s arrest, and he went before a judge but was released on his own recognizance pending trial, according to the order.

The defendant refused plea bargains Golden offered, and the day of trial, Golden added three more serious charges to correct a “clerical error,” Metzen’s ruling stated.

She also found Golden produced medical records never introduced in the two years since the alleged fight occurred, despite the defense’s repeated requests for them. Golden requested the court to delay trial again because the witness was missing, the order states.

His request was denied by Judge John Connelly. During Golden’s opening comments he told the jury the defendant should testify because, “You can’t know what’s in someone’s mind unless they tell you,” a violation of the defendant’s Fifth Amendment right against self-incrimination, Metzen’s order stated.

Because the court found the comments prejudicial, the case was declared a mistrial. While Connelly and the defense attorney stated they believed Golden when he called the comment “a simple mistake on my part,” Metzen found otherwise.

Metzen’s order granted the defense’s request to bar the case from re-prosecution, finding Golden’s comments prejudiced the jury and shifted the burden of proof from the state to the defendant.

In her ruling, Metzen explained if the defense agreed to a mistrial, the state could prosecute again; if not, the accused must rely on the judge’s instructions to the jury that they dismiss the prosecutor’s comments,

Emphasizing Golden’s then-17 years of experience, Metzen stated he was “well aware” that criminal defendants are protected from having to testify against themselves, and lawyers and judges cannot comment about his silence.

“At every arraignment, in every plea offered to the court, this principle is repeated again and again,” Metzen ruled. “In other words, this is not a case where a unique pre-trial court order was negligently breached; this was a blatant violation of a fundamental principle which has been hammered into Mr. Golden’s mind arguably every day of his 17 years representing the State.”

She ruled Golden intentionally provoked a mistrial because he would not be able to prove his case without the witness.

Golden said in an email to Sun Thisweek that Metzen did not hear the case nor preside at the trial.

“The presiding judge, who had decades of experience on the bench, found just the opposite – that it was accidentally done,” he wrote.

Retired Judge William Thuet told Sun Thisweek it is not unusual for victims to “disappear” because they fear retribution if they testify.

“I think Golden was playing games when he carries it up to the last minute,” Thuet said. “He knows if he’s got a witness or not. He figures if he plays his cards, the defendant is going to fold … and the case would settle.”
Second ruling

In the 2012 ruling, Carter found Golden committed prosecutorial misconduct and declared a mistrial in a theft case, citing several of Golden’s actions, including that Golden sent a witness home although it was “readily apparent” the defense had not completed cross-examining her.

Carter also ruled Golden refused a court order to provide the defense with a photo lineup because it contained a “blown up” photo of the defendant that was different from the others; Carter concluded Golden avoided using it because he “apparently believed that the photo lineup was harmful to his case.”

In his order, Carter found “the weight of circumstantial evidence” led him to determine Golden was “grossly negligent” and caused the mistrial, stating, “I found that the prosecutor’s tactics were concerning, that his decision to excuse the witness was intentional, and that he was trying to hide things including the witness.”

In an email, Golden wrote that he strongly disagreed with Carter’s comment.

According to the ruling, Golden said he believed the defense had concluded its cross-examination and he intended to rest the state’s case.

Carter cited two statements Golden made during trial that indicated he intended to call another witness, not resting his case.

Backstrom told Sun Thisweek the witness was pregnant and uncomfortable, and the next day she was hospitalized with false labor pains.

“I think it would have been reasonable to have allowed a short continuance to enable us to get the witness to court rather than declaring a mistrial,” Backstrom said.

In declaring the mistrial, Carter barred the case from being re-prosecuted under different charges.

In part, Carter stated, “The State’s actions were intended to provoke a mistrial. The bad-faith actions of the prosecutor were designed to afford the prosecution a more favorable opportunity to convict the defendant.”
Unusual rulings

Citing a prosecutor’s conduct as a reason for mistrial is so rare that several attorneys and judges told Sun Thisweek they have not heard of similar orders involving another local prosecutor.

“Mistrials happen very seldom, and mistrials because of government misconduct are almost as rare as hen’s teeth,” Olson said.

“I know prosecutors who have gone lifetimes without mistrials granted,” Thuet said.

Olson called Golden’s opening comments to the jury “absolutely astounding,” and agreed with the judges’ findings in both cases.

Metzen told Sun Thisweek that in her 23-year career, she does not recall another time when she declared a mistrial based on prosecutorial misconduct.

“This is not something you do lightly,” she said. “And, I don’t remember doing it on any other occasion.”

Metzen called Golden “a really competent prosecutor” who usually plays by the book.

Thuet said Golden tried cases before him that he thought should have settled, but added Dakota County prosecutors have to get approval from supervisors to settle a case.

He described Golden’s courtroom style as “aggressive,” stating “he wanted to win,” adding that he does “not necessarily agree with his tactics.”

Olson said there is nothing wrong with being tough on crime, but added, “What’s wrong is breaking the rules.”

“This conduct is so egregious, that it’s the sort of thing nobody does.” Olson said. “This guy put his finger on the scale of justice and pushed down as hard as he could.”

Minnesota case law (State v. Cabrera) describes a prosecutor as “a minister of justice” obliged to “guard the rights of the accused” and “enforce the rights of the public.” It states prosecutors must “refrain from improper methods calculated to produce wrongful conviction.”

In an email, Golden said his primary concern is justice.

“I have never intended to provoke a mistrial” he wrote. “Both of the cases were going very well for the State and a mistrial would have simply meant more delay and more difficulty in proving the cases at a later time.”

The original court documents are located here and here.


  • fred storms

    Why not require the State to pay the defendants attorney fees, or costs?

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