JUDGE BORGEN VINDICATED

Former Clay County prosecutor, Lisa Borgen, was appointed last year to a 7th Judicial District judgeship. Last fall (2006) the Minnesota Supreme Court overturned the murder conviction (2004) of Troy Demetrius Mayhorn. The Court sated that Borgen displayed misconduct while she cross-examined Mayhorn, specifically citing her comment, “You wouldn’t know the truth if it hit you in the face.”

The Minnesota Office of Lawyer Professional Responsibility, an arm of the State Supreme Court, upon its own initiative, opened an investigation into Judge Borgen’s conduct in the Mayhorn case.

Judge Borgen received support by county attorneys and law enforcement representatives from across the state. Ms. Borgen’s legal bills were paid by Clay County and they will total more than $20,000.

This week after five months (the goal to complete an investigation is 90 days), the Minnesota Office of Lawyers Professional Responsibility released its report with the conclusion that “discipline is not warranted.”

I am happy to see this outcome. I don’t know Judge Borgen. I do have a favorable impression of her as a hard-working and no nonsense prosecutor and now judge who is tough with criminals and abusers.

A couple of thoughts:

The Minnesota Supreme Court is stuck in its ivory tower. A jury is going to be convinced by the evidence--not by an attorney’s rhetoric in closing arguments. I assume the prosecutor considers a defendant who goes to trial to be a liar—otherwise they wouldn’t prosecute the case. If accusing a defendant in a murder case of being a liar is unethical, then the justices should spend some time in family court and see what lawyers say and write about good citizens every day.

What was the motivation of the Office of Lawyers Professional Responsibility in opening a case? Why did it take five months to complete its investigation—a seemingly simple investigation. I have to wonder about their judgment and motivation.

I once filed a complaint with the Office of Lawyers Professional Responsibility. I questioned the ethics and professionalism of an attorney. They wrote back and asked me to send more information, which I did. I sent all the legal documents I had including motions, affidavits, a judge’s ruling, and attorney arguments. The facts surrounding my issues were mostly clear-cut. To my surprise the opened an investigation (they dismiss 90% of all complaints).

After more than 90 days they wrote back with the same language: “discipline is not warranted.” I was okay with the outcome as I had expressed my concerns; it was the investigative report that I had issues with. After 30 years as a Secret Service Agent, business executive with heavy involvement in labor relations and the courts, and a consultant who conducted investigations, I was appalled by the quality of the investigative report: factual inaccuracies, a serious misquote of my complaint, a failure to even address seven of the eight issues I raised, and more. I did not appeal the decision, but I did write a long letter to the Office of Lawyers Professional Responsibility complaining of their work. No one wrote back.

A legal professional, upon hearing of my experience said, “That is how they all are (lawyers)—shoddy and sloppy—it is all about billable hours.” I consider the legal system to be highly dysfunctional. I think people from outside the legal system should investigate lawyers—people with clear heads whose feet are on the ground. Using people from outside the profession to investigate lawyers might help confront the denial in what one local professional in a position to know referred to as a ‘broken system.”

A CHOICE FOR THE STATUS-QUO

Congratulations to Bill Goetz on his selection as chancellor of the North Dakota university system (See July 24, 2006 commentary “Sabotage the Leader” and the August 1, 2006 commentary, “Interim Means Caretaker.”)

A few reflections:

Mr. Goetz is the “status-quo” selection—predictable after the Robert Potts fiasco when the State Board of Higher Education demonstrated that it did not want change or a strong leader. Mr. Goetz is probably a fine choice if North Dakota wants the university system to be maintained with only incremental and non-threatening changes rather than new ideas to transform North Dakota’s higher education system to meet the needs of the 21st century—that’s assuming North Dakota higher education needs to be transformed. Perhaps it is, unlike most organizations and institutions today, just fine as it is.

North Dakota higher education remains (like so much else in North Dakota) a “good old boys/girls club” led tacitly by Joseph Chapman, president of North Dakota State University. The next chancellor will be someone just like them—someone who will not upset things.

It was unimaginable to me that the State Board of Higher Education would select a black outsider (the other candidate: Paul Keys, provost and vice president for academic affairs at Governors State University, University Park, Ill.) with international experience (when state leaders do not know who Bono is) to lead the university system of 11 colleges and universities. That would be far outside their comfort zone.

Besides how many great leaders from the outside would want to come to North Dakota after the Potts fiasco?

Some criticized Goetz’s lack of a Ph.D. That is ridiculous; Mr. Goetz has an impressive resume. If he has learned from his experiences as a leader, he has the equivalent of more than one Ph.D. If, on the other hand, he has had one year of experience repeated 40 times, then a Ph.D. would not help him. I suspect he will be a more than competent status-quo executive who will do nothing to disturb the insular system as his boring incremental improvement “Goetz’s plans” in the February 24, 2007 Fargo Forum promised—a plan that lacks energy, ambition, and inspiration.

The North Dakota University System paid a consultant $96,000 to conduct a national search for the chancellor position and for presidents of Mayville State University and North Dakota State College of Science in Wahpeton. In each case local talent was hired.

Chancellor Eddie Dunn said, “It’s good to know they won it in a national search. It wasn’t just handed to them because they were in the state and inherited it.” Meaning no disrespect to those selected, I find it hard to believe that at least one better candidate could not be found after an almost $100,000 national search. Perhaps the results reflect the fear that new people with new ideas, different experience, and a view of the world different than that of clubby North Dakota would threaten the entrenched culture. The consultant creates the image of a sincere national search and covers an “inside job.”

The more things change, the more they remain the same.