Criminal case against DHS employees ‘unraveling,’ prosecutor seeks dismissal of remaining charges
BISMARCK - The prosecutor who accused the director of North Dakota's largest state agency and four other current or former employees of impeding the investigation into the swimming-related death of a 5-year-old girl last summer asked a judge Frid...
BISMARCK – The prosecutor who accused the director of North Dakota’s largest state agency and four other current or former employees of impeding the investigation into the swimming-related death of a 5-year-old girl last summer asked a judge Friday to dismiss the charges against the three remaining defendants.
Former McHenry County State’s Attorney Cassey Breyer filed motions seeking to dismiss the misdemeanor charges of conspiracy to obstruct a government function and refusing to perform a public duty filed in February against Department of Human Services Executive Director Maggie Anderson, DHS attorney Jonathan Alm and Laurie Gotvaslee, director of the agency’s regional center in Minot.
Breyer’s motions came just three days after Northeast District Judge Donovan Foughty orally dismissed the same charges against former DHS attorney Julie Leer, a special assistant attorney general, during an evidentiary hearing in Devils Lake.
Foughty dismissed the charges with prejudice, meaning the state can’t bring them back.
Leer’s Fargo attorney, Mark Friese, said the case “should have never been brought in the first instance. … Julie was doing exactly what she was directed to do by the attorney general.”
“Their case just unraveled under them, and it should have been unraveled a long time ago,” he said.
A fifth DHS worker, former Early Childhood Services Administrator Jennifer Barry, was charged with refusing to perform a public duty and also a felony charge of conspiracy to tamper with physical evidence.
Foughty dismissed the felony charge in late May, and the misdemeanor charge was resolved through a pre-trial diversion agreement reached last month with Breyer. The charge will be dismissed after three months if Barry commits no offenses during that time.
“Jennifer maintained her innocence, and at the end of the three months this will vindicate her position,” said her attorney, Tyrone Turner of Bismarck.
Anderson’s attorney, Michael Hoffman of Bismarck, said she didn’t do anything illegal and committing a willful violation isn’t in her character. He praised Friese for doing “a great job” arguing the case.
“These people were just simply trying to get proper legal advice so they knew how to properly respond to the investigation,” Hoffman said, adding he was glad for Anderson. “Hopefully it’s all behind her.”
Foughty still must sign the motions to dismiss.
Breyer, who resigned in June but continued to prosecute the DHS cases and is now working at the Einarson Law Office in Grafton and Cavalier, declined to comment through a legal assistant.
The charges allege that DHS workers allowed the KidQuarters child care facility in Velva to operate unlicensed and didn’t notify authorities about it. KidQuarters was in charge of 5-year-old Gracelyn Aschenbrenner when she was found unresponsive in the Velva city pool on June 8, 2015. The girl remained on life support until she died about three weeks later at a Fargo hospital.
Breyer is moving to dismiss the charges without prejudice, meaning they could be refiled.
“The State is not alleging that the charges against the Defendant are improper,” she wrote.
However, Breyer cited “additional evidence” that arose during Tuesday’s hearing in Devils Lake, including an email admitted into evidence by the defense that the state was unaware existed and testimony related to why day care licenses in North Dakota are backdated.
McHenry County social worker Cheryl Johnson is accused of asking DHS about a week after the drowning incident to backdate KidQuarters’ expired license to six days before the incident. Johnson is charged with felony tampering with public records and two misdemeanors.
Breyer cited testimony that if day care licenses weren’t backdated, the state couldn’t provide federal food programs to the unlicensed daycare facilities and was also unauthorized to make child care assistance payments.
“This is a complicated case with a large amount of discovery and continued investigation. The State feels that further investigation of this matter is still needed for the purpose of the protection of children,” she wrote.
The motion says the state is contemplating an appeal in the Leer case, but Friese doesn’t expect one.
“The complete absence of evidence of any criminal wrongdoing should compel them not to appeal,” he said.
Liz Brocker, a spokeswoman for Attorney General Wayne Stenehjem and the state Bureau of Criminal Investigation, which investigated the case, said the office doesn’t comment on ongoing litigation.
Friese said a lot of the issues raised in the criminal charges were acknowledged by Foughty to be discretionary calls within the agency. He said it was “hypocritical” for Breyer to charge DHS officials but not McHenry County officials in similar roles.
“Some people are owed apologies,” he said, saying the case has caused “inexcusable damage” to DHS officials and the agency.
A felony criminal conspiracy charge against Johnson was dismissed at a preliminary hearing in March, and a new preliminary hearing on the other three charges is slated for Aug. 26.
Her attorney, Lloyd Suhr, said she plans to plead not guilty and “fight this all the way through.”
“I think the outcome of those (DHS) cases is indicative of an overall problematic approach to the prosecution of everybody here,” he said.
KidQuarters operator Heather Tudor pleaded guilty in March to felony child neglect and operating a child care facility without a license. She was sentenced to serve three years of unsupervised probation, complete 300 hours of community service and pay $5,000 in restitution to the victim’s family.
Anderson is scheduled for a hearing Tuesday, and her attorney quickly filed a motion Friday agreeing with Breyer’s motion to dismiss the charges but asking that it be done with prejudice.
Alm’s attorney, Justin Vinje of Bismarck, planned to do the same.
“This matter must be put to rest now and forever. There is no additional investigation for the State to conduct at this point -- a whole year later -- as stated in the motion to dismiss,” Vinje wrote in a statement, adding, “Absurdly, (Alm) was charged with a crime for doing his job, but his professionalism did not falter one bit.”
North Dakota adopted pre-trial diversion in 2009 as an option for resolving charges without a guilty plea before they reach the trial stage or are dismissed by a judge. A judge still must approve the agreement, as Foughty did in Barry’s case on July 22.