WSI AND THE POWER OF THE PROSECUTOR

This commentary appeared in The Fargo Forum on November 1, 2007 and the Grand Forks Herald on November 4, 2007.

See the previous blog for more on WSI.


On April 1, 1940, Attorney General Robert H. Jackson addressed United States Attorneys:

"The prosecutor has more control over life, liberty, and reputation than any other person in America. His discretion is tremendous. He can have citizens investigated and, if he is that kind of person, he can have this done to the tune of public statements and veiled or unveiled intimations.

What every prosecutor is practically required to do is to select the cases for prosecution and to select those in which the offense is the most flagrant, the public harm the greatest, and the proof the most certain."

Bismarck, North Dakota in 2007:

Many things are rotten at WSI (Workforce Safety and Insurance) to paraphrase the editorial headline in the October 30, 2007 Fargo Forum. This commentary is about one stinky element of the situation.

Burleigh County State’s Attorney Richard Riha charged WSI Executive Director Sandy Blunt with two counts of misapplication of funds for allegedly misspending WSI funds. The frivolous charges were dismissed after a preliminary hearing—an embarrassment for the prosecutor.

Blunt and Special Investigations Director Romi Leingang were also charged with conspiracy to disclose confidential driver’s license photos. The county attorney dropped the charges before arraignment—another embarrassment for the prosecutor.

Are these prosecutions “in which the offense is the most flagrant, the public harm the greatest, and the proof the most certain.”

Assistant State’s Attorney Cynthia Feland intimated that WSI attorney Jodi Bjornson withheld information and/or changed her testimony thus the dismissal of the conspiracy charges. Bjornson said she was defamed by Feland. State’s Attorney Riha agreed that Bjornson’s testimony in two depositions was consistent.

“Veiled or unveiled intimations” by prosecutors in public statements abuse prosecutorial power because they damage the reputations of citizens and often hide failings of the prosecutor.

The Bureau of Criminal Investigation executed a search warrant at WSI and seized a journal of WSI executive Mark Armstrong accused of “plotting” the removal of Burleigh County State’s Attorney Riha.

On October 30, 2007, a Fargo Forum editorial scapegoated the journal as “…evidence of the bunker mentality, arrogance, and dysfunction of WSI’s senior management” and “a never-executed conspiracy” and people mentioned in the journal as “conspirators” and “Corruption is not too strong a word to describe the attitudes reflected in Armstrong’s journal….” And “a condescending insult.”

I read the 20-page handwritten journal that recaps events during the three weeks after Blunt and Leingang were charged. The comments about the Burleigh County state’s attorney are a handful of sentences in the journal—certainly not worthy of the extreme, bombastic, and expansive comments in The Forum editorial. The “conspiracy” was small potatoes, I am sure, compared to the strategizing that went on in the Burleigh County attorney’s office as they “plotted” the charges against Blunt and Leingang.

On what basis was a search warrant sought and approved? What was the probable cause to seize a personal journal? This Gestapo-like tactic should concern all citizens.

It is the right and duty of citizens in a democracy to strategize how to lawfully remove officials who abuse their power.

Where is the media? Where is the search for truth and justice? Where are the aggressive questions, investigations, and news reports about the prosecutor’s use of power? Has the county attorney wasted money and the court’s time in bringing charges best handled by the WSI Board and the political process? Has the search warrant become a political tool? Have lives, families, and careers been damaged cruelly and unnecessarily by acts and intimations of the prosecutor’s office?

I wonder what Attorney General Jackson would think.

PS: On November 7, 2007, The Fargo Forum reported that the search warrant affidavit was obtained. In the affidavit in support of the warrant, Special Agent Mike Quinn of the North Dakota Bureau of Criminal Investigation, wrote that he had reason to believe that a "stenographer style spiral bound notebook constitutes evidence of the commission of a criminal offense." Quinn did not elaborate. It will be interesting to see where this goes. Back in my day as a Secret Service agent in Chicago, search warrants required a whole lot more information to justify a search for a personal journal.

PSS: On November 15, 2007 The Fargo Forum obtained and published the affidavit for the search warrant. The affidavit identified one of the whistleblowers as the person who went into Mark Armstrong's (Communications Director at WSI) office, searched his desk, copied the journal, and then gave it to the authorities. The affidavit offered, in my opinion, very flimsy justification for a warrant--the drama continues.