Lawyers for DFL Sen. Nicole Mitchell accuse prosecutors of ‘vindictiveness’ in burglary case

Lawyers for state Sen. Nicole Mitchell filed a motion Tuesday accusing Becker County prosecutors of “prosecutorial vindictiveness” for adding a second felony charge against the Woodbury Democrat after her trial was delayed.

Ten months after they first charged Mitchell with first-degree burglary, Becker County prosecutors in February charged the senator with possession of burglary or theft tools, alleging she used a crowbar to enter the Detroit Lakes home that her late father shared with her stepmother.

The second felony charge came just weeks after Mitchell’s lawyers successfully filed a last-minute motion to postpone her trial until June 16. Mitchell’s attorneys said prosecutors opposed their request to delay the trial and then added the second charge against the senator after it was pushed back.

“The state’s decision to add a new charge constitutes prosecutorial vindictiveness, and violates Nicole’s right to due process,” their motion states.

The attorneys are asking Becker County District Judge Michael Fritz to hold a hearing on their motion and to dismiss the burglary tools charge.

The additional felony charge brought political blowback for Mitchell. Minnesota Senate Republicans updated an ethics complaint against her to reflect the burglary tools charge, and they also tried to expel her from the chamber.

Mitchell is requesting an evidentiary hearing related to prosecutors’ decision to add the second charge. Her lawyers said she “plans to call Becker County Attorney Brian McDonald to testify, as he is the only person who can speak to why the state included a new charge in its amended complaint.”

The county attorney did not respond to requests for comment Tuesday.

Mitchell’s lawyers said the burglary tools charge wouldn’t increase her presumptive sentence if a jury finds her guilty of both offenses. They allege the second charge is an attempt by prosecutors to “offer the jury a de facto lesser-included offense.”

“The risk is that the jury may simply give up, play King Solomon, and split the baby — meaning strike a compromise and find Nicole guilty of possession of burglary tools (in their mind the less serious charge) and not guilty of burglary (in their mind the more serious charge)," the motion states.

David Schultz, a Hamline University political science and legal studies professor, said it isn’t uncommon for prosecutors to “overcharge” as they bargain for a plea deal. It also isn’t uncommon for prosecutors to add additional criminal charges as they gather more information, he said.

What is unusual, Schultz said, is for defense attorneys to “try to put the prosecutor on the witness stand.” He said the attorneys will have to meet an “enormously high” bar to prove vindictiveness.

“It’s really hard for the defense to get any type of examination into prosecutorial motives,” Schultz said.

Mitchell allegedly broke into the Detroit Lakes home that her late father shared with her stepmother to retrieve belongings. Officers responding to the burglary call around 4:45 a.m. found Mitchell dressed in black in the basement of the home. The second felony charge involves a crowbar that was allegedly discovered in an egress window.

The criminal complaint states that as Mitchell was being detained, she told her stepmother, “I was just trying to get a couple of my dad’s things because you wouldn’t talk to me anymore.”

Mitchell’s trial was initially set for January until it was postponed to mid-June, after the legislative session ends. The Minnesota Legislature’s session ended May 19, but lawmakers did not pass a two-year budget and will have to return for a special session to finish up their work.

The senator’s case could once again become a political problem for Democrats if legislators don’t convene for a special session before her trial starts. Democrats have a one-seat majority in the Senate, so they will need Mitchell’s vote to pass budget bills without GOP support.

“The Democrats can’t afford for her to be on trial until they have a budget,” Schultz said.