More and more state officials interfere with prosecutorial discretion

 There’s pressure across the political spectrum to return to policies adjacent to the failed crime policies of the 1980s, said Miriam Krinsky, executive director of Fair and Just Prosecution, told the Intercept. “It’s ironic that for decades no one has questioned the exercise of prosecutorial discretion when that discretion has been used to ramp up penalties or to look the other way in lieu of holding police accountable.” Now that some prosecutors are trying to embrace a more restrained and sensible approach, it’s causing pushback by those who feel threatened by those changes.

Some of the advocates targeted the governor directly. “You have tragically become part of a disturbing reactionary trend,” said a Sunday letter to Walz from the Minnesota chapter of the National Lawyers Guild, “and placed yourself in the company of the likes of Florida Governor Ron DeSantis and Missouri Governor Mike Parson by preventing a local progressive prosecutor from exercising her prosecutorial discretion in acting consistently with her principles — and the principles that she was elected to carry out. Your decision to play to the crowd does grave damage toward making reform a reality.”

IN MINNESOTA HISTORY, it’s extremely rare to have the governor assign a case to the attorney general. The last time it happened was in the 1990s. In the exchange of letters preceding the reassignment of the case to the attorney general, both Ellison and Walz acknowledged the rarity of such occurrences.

“I do not make this request lightly and I do not expect to have to make a request like this again,” Ellison wrote. (Ellison’s office referred questions about the case to its statement last week.)

Under Minnesota law, county attorneys can refer criminal cases to the attorney general, and the governor may assign cases to the office as well. Usually, when cases get transferred, it is because the elected county attorneys who would normally handle felony criminal cases are understaffed or lack experience — but transferred with the approval of the county attorneys themselves.

Over the last four years, the attorney general’s office has taken at least 50 cases that were referred from county attorneys in Minnesota, including the prosecution of the cops who murdered Floyd.

Nothing in Minnesota statute requires the attorney general to request the governor to reassign a case. “The governor’s hope here was that whatever criticism there might be would be focused on the attorney general,” Moriarty said.

Family members of Zaria McKeever, the 23-year-old woman killed in the juvenile case that Ellison took on, were outraged by Moriarty’s decision not to charge the two teenage brothers in the case as adults.

Erick Haynes, McKeever’s 22-year-old ex-boyfriend who she shares a 1-year-old child with, recruited the boys, ages 15 and 17, to break into her apartment and beat up her new boyfriend. Haynes drove the boys to McKeever’s apartment, where they broke in and shot her. Her new boyfriend escaped through a window and called 911.

In March, Moriarty’s office offered the boys a plea bargain in exchange for their testimony against Haynes, who had been harassing McKeever in the weeks leading up to her murder, according to court filings. The boys were offered two years in a juvenile facility and probation until their 18th birthdays. Haynes was charged in November with second-degree murder.

In a heated exchange with McKeever’s family during a press conference last week, Moriarty defended her charging decision and pointed to the failures of the adult criminal system in stopping juveniles from reoffending. Instead, adult charges would increase the likelihood that the boys went on to commit more crimes, she said.

“We know that when you send kids to prison, violence happens in prison. Everybody is traumatized by prison,” Moriarty told The Intercept. “What do we expect a 15-year-old to look like when they get out of prison in their 30s?”

Ellison’s request to take over the case was met with opposition before it was made. Though it did not mention the case by name, the Minnesota County Attorneys Association voted unanimously in favor of a resolution expressing that it did not support the attorney general asking the governor to involuntarily remove county prosecutors from cases.

After Ellison formally requested to take over, the county attorneys association followed up, stating its objections to the governor’s intervention in a case that was actively being prosecuted by a county attorney. “Without discussing the merits of any particular case, our Association is of the view that when a County Attorney is actively prosecuting a case and exercising the decision-making authority for which the County Attorney was elected, the Governor should not choose to exercise that statutory authority,” the group wrote. (The association declined to comment on Walz’s decision to reassign the case.)

Moriarty said media coverage often seizes on a single case but fails to address how out of step “tough-on-crime” approaches are with juvenile brain development and research on recidivism. “There are many in the community who do support our decision,” she said. “There are many in the community who want us to be doing something different with youth. I think that’s why I got elected by such a large margin. There is nothing new that I am doing that I didn’t talk about during the campaign,” she said.

“There is this perception that because of the nature of the act, a youth is irredeemable,” Moriarty said. “There’s a huge gap here in reporting on brain development, and how yes, it’s intuitive that somebody who pulls a trigger, even if they’re 15, is less likely to be rehabilitated, when the science says that’s not true.”

Critics of Ellison’s decision have pointed to examples where Walz denied requests to reassign cases to the attorney general when the accused were police officers or jail staff.

The National Lawyers Guild letter said, “Instead of promoting equal justice, you are reinforcing the status quo where prosecutions are not permitted against the privileged but are required to be harsh against people from marginalized communities.”

Ellison’s intervention in the case could have a chilling effect on future reformers as well as the plea bargaining process in general, Krinsky, of Fair and Just Prosecution, said. When Moriarty made her decision in the McKeever case, she was doing what she told the community that elected her she would do — and Ellison’s request and the governor’s compliance took that decision-making power away from the community.

“It sets a hugely dangerous precedent to create a starting point that undoubtedly is going to chill faith in the plea bargaining process, and chill the autonomy of local prosecutors, and chill the next prosecutor from making tough decisions around when to show restraint, and when to treat kids as kids,” Krinsky said. “And when compassion and mercy is the better result for the individual as well as the community.”

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