Cass County prosecutors trying to learn from recent murder trial losses

One defense attorney said more deliberation is needed in charging people, especially when their lives and reputations are at risk.

From left, Henry Aiken, Raymond Gunn and Cody Plumlee
Forum photos

FARGO — Less than two weeks apart, Cass County juries acquitted two men in separate murder cases.

On March 28, Raymond Gunn walked away a free man after his attorneys successfully argued he acted in self-defense when he fatally shot Eric Hayes in July outside a north Fargo gas station.

Jurors also acquitted Cody Plumlee on April 7 on a murder charge in connection to the death of his girlfriend, Kirsten Knaus, after his attorneys said he was defending himself when he pushed her down a set of stairs in December 2020.

Six months earlier, Henry Aiken successfully defended himself in October against an attempted murder charge that alleged he tried to shoot and kill a police officer in November 2019 outside the Radisson hotel in downtown Fargo.

Plumlee and Aiken were found guilty on lesser counts.


“This is a pretty interesting string of trial (defense) victories in high-profile cases,” said Dane DeKrey, a defense attorney who represented Aiken during the sentencing phase. “I think that this is probably or should probably be a lesson for more deliberation when it comes to charging.”

The verdicts are rare in Cass County and North Dakota when someone was accused of killing or trying to kill another person. The Forum looked at the results of murder, attempted murder, conspiracy to commit murder, manslaughter and negligent homicide charges in Cass County dating back five years to Jan. 1, 2017.

Of Cass County's 46 counts for those types of charges, defendants pleaded guilty to 20 counts, and 12 remained open as of April 15. Six were dismissed.

Of the seven charges that went to juries, four were acquitted.

By comparison, North Dakota as a whole had 10 acquittals in 39 such charges that went to trial. Of the 251 total charges statewide, 108 resulted in guilty pleas, while 38 were dismissed.

The recent Cass County murder case acquittals will make prosecutors pause to think about what happened, what they can learn from the verdicts and how they will move forward in prosecuting future cases, said Cass County State’s Attorney Birch Burdick.

“We have a great success rate, but I don’t measure things by success rates,” he said. “I measure things by what we learned.”

Burdick noted the 20 recent guilty pleas for Cass County. Combined with the count for those found guilty at trial, convictions make up half of the charges filed by his office in the last five years.


Burdick said he doesn’t feel his office is overly aggressive in charging people. The goal is to find a just result and try to get it right every time, he said.

“Everybody understands that, in trying to hold people accountable, we’re seeking a just result,” Burdick said. “We don’t get any extra credit for throwing more people in jail. That’s not our goal here. It’s just to aim for accountability for wrongful acts.”

'That's their job'

When deciding whether to pursue charges, prosecutors have to look at evidence and determine if they feel they can prove beyond a reasonable doubt to a jury that the crimes were committed.

Burdick said he gets involved in a small number of cases, noting his office deals with thousands of cases each year. Usually one attorney makes the decision on prosecution, but bigger cases, such as those surrounding murder charges, warrant a team of prosecutors to make the decision, he said.

“Sometimes I’m involved in that, and sometimes not,” he said.

Burdick acknowledged “the buck stops with me,” and he is responsible for the decisions made in his office.

Each of the three cases that received acquittals in the last six months had different factors, so it’s hard to find a common thread, Burdick said.

Gunn and Plumlee admitted they did something, but they had reasons to do what they did, DeKey said. Aiken also admitted he did something wrong, but he didn’t try to kill anyone, his attorney added.


“Sometimes there are tragedies that happen that simply are not crimes,” DeKrey said.

Prosecutors should accept acquittals and adjust their strategies, he said. Juries are important in the U.S., as not all countries use peers to decide a verdict, DeKrey said.

“Without (a jury system), I am not confident that these three cases would have ended the same way,” DeKrey said, adding the cases are a lesson to reserve judgment.

DeKrey said he understands it is hard not to side with victims, but prosecutors shouldn’t rush to criminalize all situations. Defendants’ lives are disrupted by charges, DeKrey said. They have to spend money defending themselves, may lose their jobs and have to deal with the stigma of being charged even when found not guilty, he said.

“The state is playing poker with other people’s chips, and those chips are people’s lives,” DeKrey said. “These people were truly not guilty.”

Burdick said he understands charges have an impact on defendants. His office applies the facts present in each case, he said. Prosecutors felt the charges in the Aiken, Plumlee and Gunn cases were appropriate, but jurors saw those cases differently, Burdick said.

Burdick said he feels prosecutors did their jobs in those three trials.

“I respect what they do,” he said of jurors. “That’s their job.”

April Baumgarten joined The Forum in February 2019 as an investigative reporter. She grew up on a ranch 10 miles southeast of Belfield, N.D., where her family raises Hereford cattle. She double majored in communications and history/political science at the University of Jamestown, N.D.
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