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County attorneys in Greater Minnesota are divided over letting the AG prosecute police

Several county attorneys in Greater Minnesota expressed deep reservations over relinquishing their powers, while some worried the AG’s could be swayed by partisan winds — or make decisions that clash with local views on criminal justice issues. 

Attorney General Keith Ellison
John Autey/Pioneer Press/Pool via REUTERS
Under current law, a county attorney can ask Attorney General Keith Ellison to handle a case or for help. The governor can also order the AG to take over a case.
After police killed George Floyd in south Minneapolis, Democratic state lawmakers wanted to strip county attorneys of their power to bring criminal charges against officers who kill people and give that authority to the state Attorney General.

DFLers argued the AG would have fewer ties to local police and said centralizing the decisions would yield a more consistent approach to cases that are currently overseen by whichever prosecutor is closest. Democrats even won a crucial endorsement: county attorneys themselves. In a private meeting, the board of the Minnesota County Attorneys Association (MCAA) voted to support the idea before the Legislature held a one-week special session in June.

Republicans, however, blocked a measure in the GOP-controlled Senate to hand Attorney General Keith Ellison the decision to charge if an officer kills someone. One reason? According to the party, county attorneys, particularly in Greater Minnesota, were actually quite divided.

MinnPost interviewed seven county attorneys outside of the Twin Cities metro area, all of whom have dealt with cases where officers killed someone, to illuminate that split. Many expressed deep reservations over relinquishing their powers and some worried the AGs could be swayed by partisan winds, or make decisions that clash with local views on law enforcement and criminal justice.

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“Some of the metropolitan attitudes about some things may not be consistent with some attitudes around the state,” said Fillmore County Attorney Brett Corson.

A reversal of opinion from prosecutors

Each of Minnesota’s 87 counties has an elected attorney that handles local criminal and civil prosecutions. So when an officer kills someone, or is accused of law breaking, it falls to the county attorney to decide whether criminal charges are warranted.

Under current law, a county attorney can ask the Attorney General to handle a case or for help. The governor can also order the AG to take over a case.

The bill passed in a June special session by the state House, which has a Democratic majority, would give the AG sole power to prosecute officers when they kill someone. In a speech on the House floor, state Rep. Jamie Becker-Finn, a Minneapolis DFLer, said the switch would “bring uniformity and consistency” in prosecution and eliminate any conflict of interest between county attorneys and police departments they must regularly work with to try other criminal cases. “I think it’s the right thing to do because there is that appearance of impropriety,” she said.

Robert Small, executive director of the county attorneys association, said giving the AG or an independent prosecutor charging authority has long been discussed by the board. It had been proposed at the Legislature before. But until now, the board also opposed giving up the prosecuting role.

A working group convened by Ellison and Department of Public Safety Commissioner John Harrington debated the issue, but ultimately recommended in February that the AG’s office should work with county attorneys on how best to provide support, expertise, resources and other help dealing with deadly-force cases.

St. Louis County Attorney Mark Rubin, who represented the board on the working group, said he argued it was “better practice” that county attorneys maintain primary responsibility. The AG could always be available as needed.

After Floyd was killed, and lawmakers again proposed giving more power to the AG, the 29-member board met virtually to discuss the issue. Small, and several county attorneys at the private meeting, said there was lengthy and open discussion during which each of the 26 county attorneys on the call got to speak. The board’s website says there are eight members representing the seven-county Twin Cities metro area.

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The final vote tally was not officially released. State lawmakers said it was 16-10 in favor of moving authority to the AG, though Small would not confirm that.

In a statement released after the vote, the board said it was trying to ensure public faith in criminal investigations of law enforcement. “While we do not believe that there is an inherent conflict of interest in reviewing officer-involved death cases occurring within our jurisdictions, we recognize that there is a growing sentiment that such a conflict of interest exists,” the statement says.

Despite the vote, Republicans argued Greater Minnesota districts were far more against the policy than it appeared. “We’ve had a lot of discussion with other county attorneys and it seems to be quite a split in that professional organization,” said Republican Sen. Warren Limmer, who chairs the Senate’s Judiciary and Public Safety Finance and Policy Committee. They blocked the measure.

Many county attorneys are still opposed

While most high-profile police killings have happened in the Twin Cities, like Floyd, Philando Castile, Jamar Clark and Justine Damond, Ellison’s task force said 60 percent of deadly-force incidents came in Greater Minnesota over the last five years.

A database created by the Star Tribune lists 60 police killings outside of the Twin Cities metro area since 2001, with the most coming from St. Louis County (12), Blue Earth and other counties that cover the Mankato area (8), Beltrami County (6), and Olmsted County (4).

MinnPost contacted more than a dozen county attorneys located where those police killings have occurred. Of the seven that responded, five said they opposed or had concerns about giving Ellison, or any AG, permanent authority to prosecute officers who kill people in the line of duty.

Rubin, who was elected St. Louis County Attorney in 2010, runs the largest prosecutor’s office outside the metro. It covers Duluth, but also Hibbing, Virginia and more. To avoid appearance of conflict of interest, his office, like many others, will commonly ask a neighboring county attorney to review officer killings for criminal charges. While Rubin said he has not charged an officer that has shot and killed someone, he has charged officers with felony offenses.

The county’s most recent officer-involved death came in 2019, when sheriff’s deputy Troy Fralich intentionally hit Timothy Majchrazak with a squad car. Majchrazak, a white man from Hermantown, had exchanged gunfire with deputy Jason Kuhnly after a high-speed chase. 

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To reach a charging decision, Rubin called on a retired prosecutor from Virginia, Minn., and Cook County Attorney Molly Hicken to review the case. After input, Rubin cleared the two officers involved.

Rubin said he has “tremendous confidence” in Ellison. But, at least for now, he wants to keep local jurisdiction. 

He wondered if it would be inconsistent for county attorneys to keep cases in which an officer uses deadly force but doesn’t kill someone. And he questioned what would happen if a person dies at the hands of police a month after local prosecution has begun. 

Ultimately, Rubin said he believes county attorneys should handle these tough cases because they “are elected to be the representative of their communities.” In other words, he prefers local control on the highly controversial issue.

For Donald Ryan, the attorney for Crow Wing County, which includes Brainerd, centralizing the cases in the Twin Cities area was unappealing. There are “different ways of life and customs” across the state that can get lost when just one elected official takes control, said the MCAA board member.

While Ryan has also sent officer killing cases to other county attorneys for review, or presented them to grand juries, he said giving power to the AG would be different. The position is a partisan one. And candidates for office typically support a political platform that could sway their charging decisions, Ryan said. County attorney’s offices are technically nonpartisan. Ryan said he’s an independent.

More than anything, Ryan said he felt the MCAA’s decision to endorse a transfer of power to the AG was rushed. It could be the best option after further talks, he said. Yet Ryan voted no, he said, because he wanted more time to consider the issue. “I think there needs to be more discussion,” he said.

Corson, the Fillmore County Attorney, also called for more discussion on the matter, though he said he was open to the possibility of AG control. But he said Ellison’s statements on the Floyd case concerned him, and Corson called for an “objective” process for charging officers that is fair to both victim and law enforcement. “I’d want to make sure it’s not a political decision,” he said of the AG’s role.

Cass Lake County Attorney Ben Lindstrom said he didn’t have a position on the Democratic legislation, but noted there is a sharp difference between attitudes on police around the state that raises resistance to giving the AG power to charge officers. “If you have somebody in St. Paul now deciding something in a small rural community, they may have a different value set than the local county attorney or local grand jury,” he said.

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“Different areas clearly have different politics and different views of how the criminal justice system should interact with our community,” Lindstrom said. For example, he added: “Some people believe the police should be defunded and some people think it shouldn’t be defunded.”

In a statement, Ellison’s office declined to comment on questions of partisanship. In a statement, an Ellison spokesman said the working group recommended the AG’s office “stay in dialogue” with the MCAA and voted to support giving Ellison authority after continued talks. “If asked, we are willing to serve,” the statement says.

Some support the idea

As evidenced by the MCA vote, there is support for transfer prosecutions of officers who kill people to the AG. 

Chad Larson, the Douglas County Attorney, said the proposal was a “no-brainer.” The public does not trust county attorneys to fairly review these cases because they see prosecutors as too intertwined with police.

County attorneys can and do handle “uncomfortable” cases involving police with integrity, Larson said. But he said “public trust is fundamental to our criminal justice system. “I welcome another agency to review those cases,” Larson said. “It provides an independent set of eyes, it alleviates me from the discomfort, and it appeases the public, for the moment.”

In two recent cases, Larson cleared officers who killed people in recent years. He did not ask another county attorney to review the cases because the victims, captured on video, tried to use deadly weapons against the officers. “If either case involved an unarmed person, I would have taken a different path,” Larson said.

Nevertheless, Larson said he worried moving prosecution to the AG’s office was simply “renting” public trust. “The lease will be up when people don’t like the decisions made at that level,” he said.

Mark Ostrem, the Olmsted County Attorney, said he and colleagues are “protective of our jurisdiction,” and worries politics have become “very very partisan lately.” While some point out Ellison is a Democrat, he also said “Republicans could go after him and sweep him out of office and we have somebody else with little experience handing over a significant caseload.”

But he sided with the MCAA board. “I’m not going to deny that things are different in the metro than greater Minnesota but people say that about Olmsted too,” Ostrem said. “Things are different in Olmsted than they are in Mower or Winona. “Honestly that’s part of the reason why we should be sending these cases out is because we need somebody with … a more neutral vision.”