GRAND FORKS — The proceedings in the trial of Nichole Erin Rice for the murder of Anita Knutson hit a snag before the jury was sworn in after Rice’s attorney’s filed a motion to dismiss the charge against her for alleged violations by state prosecutors.

Alleged Brady violation

Rice’s attorney Richard Sand filed the motion to dismiss the Class AA felony murder charge against his client, alleging the state had failed to provide an interview of Devin Hall, an alternative suspect in Knutson’s murder, conducted by the Minot Police Department during its investigation in 2008. A “Brady Violation” occurs when a prosecutor fails to disclose evidence that is exculpatory or which may exonerate the defendant in a criminal case.

According to a brief filed by Sand in support of the motion to dismiss, Rice’s attorneys were reviewing the discovery file on March 13 and found they were unable to locate a file name that appeared to reference the interview of Hall. Sand requested the information related to the interview from the state, which responded the file was intended to contain the interview and stated it had previously been disclosed. Sand’s brief claims this interview was, in fact, not disclosed and was not located within the state’s evidence, but rather in law enforcement’s evidence depository.

“This establishes with absolute certainty that Devin Hall’s interview was not disclosed by the state prior to trial. Irrespective of intention, the state has suppressed exculpatory evidence and committed a serious breach of the precedent handed down in Brady v. Maryland. In addition, this also raises the question as to whether the state had even reviewed the interview prior to charging the case against Nichole Rice,” the brief said.

Sand argued the interview likely would be used for more than the impeachment of a witness but rather directly implicates another suspect. According to the brief, the recorded interview of Hall illustrates that Hall was in Minot, that he was in possession of the murder weapon and that he engaged in conduct similar to that noted by investigators at the crime scene. Sand said the interview includes statements and admissions by Hall which “absolutely substantiates the prior theory” put forward by Rice’s attorneys at the preliminary hearing in 2022.

“This undoubtedly destroys any probable cause that Nichole Rice committed the murder,” Sand said in the brief. “The state cannot be permitted to so casually run roughshod over the holdings of the highest Court in the United States, not the least of which, the Honorable Court presiding.”

Alleged Giglio violation

The motion to dismiss was also sought on the grounds that the state failed to disclose evidence which could be used to impeach the credibility of a prosecution witness. Sand’s brief stated Assistant Ward County State’s Attorney Christopher Nelson called Rice’s attorneys on Sunday regarding a new discovery disclosure related to Minot Police Detective Carmen Asham, who is listed as a principal case agent in the investigation of Knutson’s murder.

This disclosure came in the form of a 57 page redacted report dated March 6 of an investigation into former Minot Police Lt. Matt McLeod. The report, authored by Yvette Hentzelman of Chicago-based Clark Hill law firm and Thomas Kotlowski of consulting firm Clarity One Solutions, indicated the investigation was initiated after a prior investigation into the conduct of former Minot Police Chief John Klug. The investigation into Klug determined Klug had failed to pursue an investigation into McLeod after he was made aware of a criminal investigation into allegations against McLeod.

McLeod was the subject of out-of-state criminal investigations into allegations of sexual assault and abuse of a minor relative in Ada County, Idaho, and Butte-Silver Bow County, Montana.

While the North Dakota Bureau of Criminal Investigation assisted both out-of-state agencies, and McLeod failed a polygraph, no charges were filed in either jurisdiction.

McLeod denied the sexual assault allegations in an interview with Clark Hill, and to Klug directly, according to the report. The report also uncovered an inappropriate relationship between McLeod and Asham, who was his subordinate at the Minot Police Department.

Sand’s brief highlighted findings from the report that showed McLeod had improperly provided Asham with a copy of an internal report and guided her on how to avoid others finding out what he did by deleting the file and email it was sent in.

Sand’s concern was born from Asham being referenced in the email exchanges requesting copies of the Devin Hall interview, and the “pivotal” role she played for the prosecution.

State’s response

The state’s response was filed Tuesday afternoon by Nelson, who argued the file for Hall’s 2008 interview was provided to the defense promptly after the state was informed it was missing. Additionally, Nelson said the defense could have obtained it with reasonable diligence by requesting it.

Nelson also argued the evidence from Hall’s interview “is not even remotely exculpatory,” as Hall denied being in Minot at the time of Knutson’s murder and provided information he was en route from Montana. According to the response, Hall denied ever being in the vicinity of Knutson’s off campus North Minot apartment.

As for the report on the McLeod investigation, Nelson said the state only became aware of it when it was provided by the City of Minot on March 14 and observed on March 16. Nelson said he was told about the report on Sunday while en route to Grand Forks for the trial, and he immediately contacted Sand to inform him of Asham’s credibility issue.

Nelson said Asham would be the state’s final witness and would testify until sometime next week, providing the defense ample time to conduct a pre-trial deposition.

“All the defendant is left with, at best, is an unintentional discovery violation, which was indisputably remedied as soon as the undersigned were made aware of the issue,” Nelson’s response stated.

Nelson disputed the defense’s assertion that the probable cause in the case against Rice had been shattered and asked the Court to deny the motion to dismiss.

Status of trial

The parties convened for oral arguments regarding the motion to dismiss Tuesday afternoon in Grand Forks.

Judge Richard Hagar allowed expanded media coverage of the arguments, which began with Sand. Sand said the defense had worked late into the night on Monday on the motion, saying their work was compounded by the late delivery of and the information contained within the McLeod report.

Sand said the report showed that lying was in the daily course of business at the Minot Police Department and served as a bombshell which “blows up” the entire police department and the credibility of Asham as lead case agent. Sand said the report’s findings were “appalling” and “incredible, and taken with the issues surrounding the delivery of the Hall interview served as “an absolute abortion of justice.”

Deputy Ward County State’s Attorney Tiffany Sorgen replied her office only received the report themselves late Friday and provided it as soon as they were able to.

Hagar briefly recessed to consider the argument, but upon his return announced that he would be denying Rice’s motion to dismiss. Hagar found that the existence of the 2008 Devin Hall interview was known to the defense and had been referenced by Rice’s then attorney, Philip Becher, at her preliminary hearing. Hagar stated that while he was dismissing the Giglio claim, he would allow Asham to be deposed by the defense before she testifies. Hagar acknowledged he found the information in the McLeod report to be disgraceful and horrible, and whatever credibility issues they created were for the jury to decide.

Sand said he accepted Hagar’s ruling but maintained his client’s due process rights had been violated. Hagar then moved forward with swearing in the jury and opening statements.