The Ward County State’s Attorney’s Office is appealing North Central District Court Judge Gary Lee’s refusal to find probable cause in a burglary and trespass case earlier this year.
Lee refused to find probable cause in the case State vs. Joseph Brown, because the state put a Minot police officer on the stand who did not directly investigate the case or have firsthand knowledge of the facts of the case at the preliminary hearing on June 3. Lee said he was not going to find probable cause based on hearsay and dismissed the charges without prejudice.
The state’s attorney’s office then appealed and is arguing that Lee has misapplied the law in this case and hearsay evidence is allowed at a probable cause hearing.
Defense attorney Ashley Gulke is arguing that Lee was correct to dismiss the charges. She wrote in her written argument that the officer who testified had only a passing involvement in the case and happened to be on patrol when he heard a call come in involving a “large black man.” The officer did not interview any witnesses, locate the suspect or do any investigating, she wrote. “He was, essentially, a man in uniform testifying to hearsay within hearsay expecting the court to give weight because he’s a law enforcement officer,” argued Gulke.
Judge Lee and the state’s attorney’s office have disagreed in other cases over what is required to find probable cause at a preliminary hearing. Lee has made it known that he expects witnesses who testify at preliminary hearings to have some meaningful involvement in a case and the state’s attorney’s office has said hearsay is allowable and it is permissible to call one officer to testify to what another officer has written in a police affidavit if the investigating officer is not available to testify.
In May, the Supreme Court reversed North Central District Court Judge Doug Mattson’s refusal to find probable cause in another case with similar circumstances. Mattson had declined to find probable cause in State vs. Donald Mitchell because the officer who testified didn’t have first-hand knowledge of the case but had knowledge of what another officer had investigated. The Court ruled in that case that sufficient evidence had been presented at the hearing to establish that the crime had probably been committed and to find probable cause for the case to move forward.
Oral arguments in the Brown case are scheduled for Nov. 18 before the North Dakota Supreme Court.