As the start of a Minnesota legislator’s felony burglary trial nears, her attorneys are asking a judge to dismiss one of the latest charges, accusing the county attorney’s office of “prosecutorial vindictiveness.”
That motion comes as a June 16 trial date is set for Sen. Nicole Mitchell, DFL-Woodbury, in Becker County. The first-term lawmaker faces two felony counts related to an April 2024 incident at the home of her stepmother in Detroit Lakes.
Police arrested Mitchell at the scene after she allegedly broke into the home before dawn on a Monday morning. Police officers arrived at the home around 4:45 a.m. and found Mitchell dressed in black in the basement.
The incident occurred when the Minnesota legislature was on recess in observance of Passover. The Becker County Attorney’s Office then charged Mitchell with one count of felony burglary.
In January, attorneys for Mitchell filed a motion to delay her trial until after the end of the legislative session, citing the trial’s interference with her work schedule at the Capitol. District Judge Michael Fritz granted the continuance, delaying what would have been a trial date of late January to June 16.
Just a few weeks later, prosecutors with the Becker County Attorney’s Office amended their criminal complaint and charged Mitchell with a second felony—possessing burglary or theft tools at the scene.
The amended complaint says police officers discovered a crowbar in the window well where Mitchell allegedly broke in. Mitchell was dressed in all black and in possession of a flashlight with a black sock covering the light, according to the complaint.
On Tuesday, Mitchell’s attorneys filed a motion asking Judge Fritz to dismiss the added charge of possession of burglary or theft tools, alleging prosecutors added the charge only after the judge granted the continuance.
“The state’s decision to add a new charge constitutes prosecutorial vindictiveness, and violates Nicole’s right to due process,” Mitchell’s motion to dismiss states.
The motion, which is signed by attorney Dane DeKrey, also says that Mitchell 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.”
Motion is rare, but not unheard of
While rare, a motion to dismiss a charge for “prosecutorial vindictiveness” is not unheard of in criminal trials where the prosecution amends a charge sometime after filing an initial criminal complaint, said Tayler Rahm, a Twin Cities-based criminal defense attorney, who spoke with Alpha News on Thursday.
“The reason it’s sometimes used is because prosecutors are given pretty broad authority to bring up new charges until trial,” said Rahm, who is a former Republican candidate for U.S. House. “It’s a motion available to defendants because of that broad authority the prosecution has, but it’s rare a judge would rule in favor of the defense.”
Asked whether defense attorneys may ever file a motion to dismiss for “prosecutorial vindictiveness” as a tactic to delay the commencement of a trial, Rahm said it’s possible.
“I don’t know these attorneys, so I can’t speak to what their motives are,” he said. “Given there was already one continuance, I would guess it would not be likely that a judge were willing to grant another.”
Mitchell pleaded not guilty to the burglary charge last August and has resisted calls from Republicans, and even some Democrats, to resign. She survived a motion to expel her from the Minnesota Senate earlier this session.
Hank Long
Hank Long is a journalism and communications professional whose writing career includes coverage of the Minnesota legislature, city and county governments and the commercial real estate industry. Hank received his undergraduate degree at the University of Minnesota, where he studied journalism, and his law degree at the University of St. Thomas. The Minnesota native lives in the Twin Cities with his wife and four children. His dream is to be around when the Vikings win the Super Bowl.
