Port: Relationship between prosecutor and police detective may cause headaches for Cass County

MINOT, N.D. — Anyone who has watched a police procedural or a courtroom drama knows what discovery is in the context of a criminal proceeding. It's a requirement, established by the U.S. Supreme Court in the Brady v. Maryland decision, which found withholding evidence material to determining the guilt or innocence of a defendant is a violation of that defendant's due process rights.

Basically, whatever evidence the prosecutors have, including evidence that might be exculpatory for the defendant, or evidence that might speak to the biases or credibility of a witness (that last being pertinent to what we're about to get into), they have to turn it over to the defense.

Failure to disclose is a big stinkin' deal.

This brings us to a situation involving a Cass County prosecutor and a police detective who entered into a romantic relationship that doesn't seem to have been disclosed in a timely fashion, despite the assertions coming from the county.

Cass County State's Attorney Birch Burdick told me in an emailed statement that he's been aware for months of the situation involving Assistant State's Attorney SheraLynn Ternes and Fargo Police Detective Troy Hanson.

"I learned of the personal relationship between one of my lawyers and a police detective, as best I can tell, about mid-December 2021," Burdick said. "The lawyer volunteered the information. I understand it was a fairly new relationship."

Burdick said he wasn't sure if there is "an easy way to determine exactly how many cases might have involved work by both of these people," but claimed Ternes has "not been involved in any trials during that time in which the officer was called as a witness" and that "we have reassigned cases in which that attorney might otherwise be taking that officer’s testimony or disclosed the relationship to opposing counsel."

But internal emails from Burdick's office, disclosed to me as a part of an open records request, indicate that this might not be an accurate reflection of how the matter has actually been handled.

Defense attorney Tanya Martinez represents defendant Andre Strickland in an ongoing felony matter involving domestic violence, drug possession, and unlawful possession of a firearm. On May 9, Martinez emailed Burdick's office asking for disclosure of the relationship between Ternes and Hanson.

"I have had communications with Ms. Ternes as recently as last week on this case," Martinez wrote, noting that Hanson is one of the lead detectives on the case. "I am struggling to find a reason why this hasn't been disclosed and why Ms. Ternes has not been removed from these cases."

In a May 10 response, which came after my initial inquiry to him, Burdick told Martinez that he'd be replacing Ternes on the case. The charges against Strickland were filed in February.

I reached out to Martinez for comment, but she declined. "I was very frustrated to learn of the information, but I have to protect my client's interests," she told me in a text message. "Mr. Burdick assured me that measures were being taken to eliminate any conflict."

Ternes did not respond to a request for comment. Hanson directed inquiries to the city of Fargo's public information officer.

A second case is mentioned in a May 6 email from Assistant State's Attorney Ryan Younggren to Burdick and other team leaders. In the email, Younggren describes calling defense attorney Steve Mottinger, who is representing defendant Brandon Grant in an ongoing felony attempted murder case, and disclosing the relationship between Ternes and Hanson. The subject line of the email is "FYI about discussion this morning," meaning the disclosure happened only after a conversation in the state's attorney's office.

Younggren indicates in his email that Mottinger didn't anticipate it being an issue. "I don't feel I'm in a position to comment," Mottinger told me when I called him about the disclosure, though he did note that his case goes to trial "next week."

The charges against his client were filed in February 2021.

At the end of the email, Younggren claims that the office has a policy of not assigning Ternes to cases that involve Hanson.

"As an FYI, cases that Troy Hanson is the lead or has an important role, we are reassigning to others on the team," he wrote. "This has been the rule since SheraLynn disclosed to Birch and I a few months ago."

But that statement is at odds with the Strickland case, which was filed in February, well after the December disclosure of the relationship mentioned by Burdick.

In a third case, involving murder charges against Anthony Reese Jr., defense attorneys raised the issue of the relationship between Hanson and Ternes in open court.

“We are unclear why the State’s Attorney Office decided to sit on material information as to this matter,” defense attorney Tracy Hines said in a May 18 hearing . “There’s absolutely no excuse for withholding this information for this period of time.”

If the policy was to keep Ternes off cases involving Hanson, why wasn't it being enforced?

"The underlying idea is to reassign or disclose. I would like to have identified the two cases you mentioned below at a somewhat earlier stage, as we had a number of other cases. As we did identify them, we dealt with them," Burdick told me when I asked him. "In one situation we reassigned the case to another attorney. In the other situation we disclosed to opposing counsel the relationship between the prosecutor and detective."

According to City of Fargo spokesman Gregg Schildberger, Police Chief Dave Zibolski was not aware of the relationship between Hanson and Ternes. "The Chief has since spoken to Cass County State’s Attorney Birch Burdick; Birch was aware of the relationship and has mechanisms in place to avoid potential conflicts of interest."

"While the rules of professional conduct do not explicitly prohibit relationships between prosecutors and police investigators, guidelines from the National District Attorney’s Association say a prosecutor should excuse themselves from any investigation or prosecution in which the prosecutor’s 'personal interest would cause a fair-minded, objective observer to conclude their neutrality, judgment or ability to administer the law in an objective matter may be compromised,'" said Mark Friese, a Fargo-based criminal defense attorney with the Vogel Law Firm. "Ethics experts generally agree that a minimum, the relationship must be disclosed so an accused can decide whether to address the relationship as part of cross-examination."

"Under Brady v. Maryland and cases interpreting it, prosecutors are obligated to disclose any information which is material to either guilt or punishment," he continued. "Close personal relationships between prosecutors and key witnesses is material. Judges have disqualified prosecutors from cases, holding undisclosed close personal relationships undermine confidence in the integrity of the judicial system. Guilty verdicts by juries have been overturned by undisclosed personal relationships between prosecutors and police."

Friese said he doesn't have any active cases involving Ternes and Hanson.

Burdick, who was first elected to his position in 1998, announced in November that he would be retiring at the end of his current term . Younggren and fellow Cass County Assistant State's Attorney Kim Hegvik are currently campaigning to replace him.

This column originally indicated that the criminal charges against Brandon Grant were filed in Feburary 2022. That was an error. They were filed in February 2021. The column had been edited to reflect the correct information.