Patrick Rohland, Judicial Officer 09-14-21
C/O: Kim Jelen, Court Administrator
Lyon County Government Center
607 West Main
Marshall, MN 56258
Phone: (507) 706-7050
Demand for Sanctions & Dismissal in Case No. 42-CR-21-98State of Minnesota vs Larvita Maria Elen Mcfarquhar
I demand that sanctions 1 be levied against City of Marshall City Attorney Dennis Simpson, Assistant City of Marshall City Attorney Matthew Gross and Director of Public Safety Jim Marshall for illegally withholding 2 my Chapter 13.04 Subject Data 3,4,5 aka evidence aka discovery from me in Case No. 42-CR-21-98 State of Minnesota vs Larvita Maria Elen Mcfarquhar. I demand that 42-CR-21-98 be dismissed as the sanction against Simpson, Gross and Marshall. It is a matter of the public record that a demand for discovery was submitted 03/01/2021.
Case No. 42-CR-21-98 State of Minnesota vs Larvita Maria Elen Mcfarquhar
Date of Incident: 02/04/2021
02/05/2021 Citation E-Filed
02/05/2021 Citation Data Summary Index # 1
02/12/2021 Police or Incident Report Index # 2
02/12/2021 Police or Incident Report Index # 3
03/01/2021 Demand or Request for Discovery Index # 8
09/16/2021 Jury Trial (8:00 AM) (Judicial Officer Rohland, Patrick)
Pursuant to state statute Simpson, Gross and Marshall had ten (10) days to provide me with my Chapter 13.04 Subject Data aka evidence aka discovery. It is my understanding that it is Simpson’s, Gross’ and Marshall’s known mandatory 6 , nondiscretionary, ministerial duty of the office to provide me with my my Chapter 13.04 Subject Data aka evidence aka discovery. As of today’s date Simpson, Gross and Marshall have willfully refused to comply with the Minnesota Government Data Practices act by illegally with the following readily available,
free, electronic, subject data:
1. SMSU 02/04/2021 911 call 7 and corresponding verbatim transcript 8 .
2. SMSU surveillance video of Larvita McFarquhar on 02/03/2021 and 02/04/2021
3. SMSU 02/03/2021 and 02/04/2021 Public Safety incident reports regarding Larvita McFarquhar.
4. Larvita McFarquhar’s 02/04/2021 phone calls to City of Marshall Police dept. and Lyon Co. Sheriff’s Office of officer/deputy assist/escort at SMSU.
5. Computer-aid dispatch reports and corresponding audio of 02/04/2021 incident involving Larvita McFarquhar.
6. Names and contact information of students and faculty in classrooms or hallways who were witnesses to the 02/03/2021 and 02/04/2021 incidents involving Larvita McFarquhar.
7. Electronic communications Bill Mulso, SMSU vice president for government relations, communications and marketing and Mike Munford, SMSU Public Safety Director engaged in with Marshall Independent Reporter Deb Gau.
8. Verbatim transcript for body camera videos and squad audio videos of 02/04/2021 incident involving Larvita McFarquhar.
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I have reason to suspect that plan is to force me to plead guilty without ever receving all my evidence or be forced to go to trial without ever receving all my evidence. Regards I demand that all my my Chapter 13.04 Subject Data aka evidence aka discovery be compelled to be produced immediately!
I also have reason to suspect that Bill Mulso, SMSU vice president for government relations, communications and marketing is well versed in the Minnesota Government Data Practices Act 9 . Yet, magically and mysteriously potential witness Mulso can’t fall back onto his expensive and time-consuming work-related continuing education to say “No comment” to apparent SMSU stenographer and cheerleader Marshall Independent so-called Reporter Deb
Gau 10 when it comes to the 02/04/2021 incident involving Larvita McFarquhar.
When I add up the potential witness giving unauthorized statements 11,12,13 to the media and evidence being illegally withheld in an active criminal case and only Larvita McFarquhar being required to follows the rules of the court and the laws of the state of MN then I come to the logical conclusion – this case is a malicious prosecution. If you willfully refuse to dismiss this case, then I demand an immediate evidentiary hearing.
Finally, I demand that you make a referral to an outside law enforcement agency for criminal investigation.
____________________________________________
Larvita McFarquhar
106 E. Railroad St.
Lynd, Minnesota 56157
1. Rule 9.03 Regulation of Discovery Subd. 8. Sanctions. If a party fails to comply with a discovery rule or order, the court may, on notice and motion, order the party to permit the discovery, grant a continuance, or enter any order it deems just in the circumstances. Any person who willfully disobeys a court's discovery order may be held in contempt.
https://www.revisor.mn.gov/court_rules/cr/id/9/
2. “We have held that when the State suppresses or fails to disclose material exculpatory evidence, the good or bad faith of the prosecution is irrelevant: a due process violation occurs whenever such evidence is withheld.” Illinois v. Fisher.2 2. 540 U.S. 544, 547, 124 S.Ct. 1200, 1202 (2004). George R. Dekle, Sr, Prosecution Principles: A Clinical Handbook (Thompson/West:2007), Page 145.
3. 13.04 Rights Of Subjects Of Data. Subd. 3. Access to data by individual. Upon request to a responsible authority or designee, an individual shall be informed whether the individual is the subject of stored data on individuals, and whether it is classified as public, private or confidential. ... The responsible authority or designee shall comply immediately, if possible, with any request made pursuant to this subdivision, or within ten days of the date of the request, excluding Saturdays, Sundays and legal holidays, if immediate compliance is not possible. https://www.revisor.mn.gov/statutes/cite/13.04
4. However, notwithstanding the attorney conduct concerns, the County’s obligation under the Data Practices Act to comply immediately or in ten business day with a data subject’s request is clear. (The Commissioner has also previously opined that the existence of litigation between a data requester and an entity does not relieve the entity of its data
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practices responsibilities. See Advisory Opinions 96-038 and 97-005.) As the Commissioner noted in Advisory Opinion 03-030:. Advisory Opinion 18-005, May 21, 2018; Carver County, May 22, 2018 | Data subjects, Response to data requests, Requests for data
https://mn.gov/admin/data-practices/opinions/library/?id=36-340460
5. Independent School District 709, Duluth Public Schools, did not respond appropriately to a March 2, 2018, data request from a data subject pursuant to Minnesota Statutes, section 13.04, because it did not provide any data to the requester in 10 business days. Advisory
Opinion 18-010 https://mn.gov/admin/data-practices/opinions/library/#/detail/appId/1/id/347419
6. 609.43 Misconduct Of Public Officer Or Employee. A public officer or employee who does any of the following, for which no other sentence is specifically provided by law, may be sentenced to imprisonment for not more than one year or to payment of a fine of not more than $3,000, or both: (1) intentionally fails or refuses to perform a known mandatory, nondiscretionary, ministerial duty of the office or employment within the time or in the manner required by law; or https://www.revisor.mn.gov/statutes/cite/609.43
7. Subd. 4. Audio recording of 911 call. The audio recording of a call placed to a 911 system for the purpose of requesting service from a law enforcement, fire, or medical agency is private data on individuals with respect to the individual making the call, except that a written transcript of the audio recording is public, unless it reveals the identity of an individual otherwise protected under subdivision 17. A transcript shall be prepared upon request. The person requesting the transcript shall pay the actual cost of transcribing the call, in addition to any other applicable costs provided under section 13.03, subdivision 3. The audio recording may be disseminated to law enforcement agencies for investigative purposes. The audio recording may be used for public safety and emergency medical services training purposes. 13.82 Comprehensive Law Enforcement Data. https://www.revisor.mn.gov/statutes/cite/13.82
8. ADMINISTRATIVE ORDER #12, 2nd SERIES State of Minnesota District Court
Administrative Order No. 12, 2 nd Series Date of Implementation: March 26, 2008 Amended: March 26, 2020 Fifth Judicial District In Re: Order Establishing Policy Relating to Video/Audio Statements IT IS HEREBY ORDERED: 1. In all proceedings except adult criminal proceedings, the party intending to introduce a recorded statement must, at the time of that court rules require disclosure of the statement, advise the opposing party of the format in which the statement is
preserved and must, prior to trial or hearing, timely prepare, serve, and file a verbatim transcript of the recorded statement. The proponent of the recorded statement is responsible for the accurate transcription. Failure to comply with either requirement may result in exclusion of the recorded statement at trial or hearing. Date: March 26, 2020 Michelle Dietrich, Chief Judge Fifth Judicial District. Source: This Order is adopted from Administrative Order No. 35, originally issued on June 20, 2007. District Administrative Orders : Order #12 -
Policy Relating to Video/Audio Statements
https://www.mncourts.gov/mncourtsgov/media/fifth_district/Administrative-Order-No-12-Policy-Relating-to-Video-Audio-Statements.pdf
9. When can I get a copy of the investigative report? Investigation ongoing If the law enforcement agency is still investigating the crime, members of the public will not be able to get a copy of the report. They can, however, get what’s often referred to as the public portion of the report containing basic information about the case that is classified as public. Pamphlet: How Do I Get A Copy Of My Police Report? Information For Crime Victims Who Want To Make A Request For Law Enforcement Data. Crime Victim Justice Unit Office of
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Justice Programs | Minnesota Department of Public Safety https://dps.mn.gov/divisions/ojp/forms-documents/Documents/Getting%20copy%20of%20report.pdf
10. Bill Mulso, vice president for government relations, communications and marketing at SMSU, confirmed there was an incident Wednesday morning when McFarquhar entered a classroom on campus. Mulso said McFarquhar disrupted a class in progress, and after a second classroom disruption later that morning, she was issued a trespassing notice. ... Later, after walking to a second classroom, McFarquhar and Lahr were met in the hall by Mike Munford, director of public safety at SMSU. Munford said they both would be restricted from campus. Marshall Police were called to the scene, and issued both McFarquhar and Lahr trespassing notices. Officers walked McFarquhar, her daughter, and Lahr out of the building, although officers did not follow them once they were outside. Lynd
restaurant owner served with trespassing notice McFarquhar escorted from SMSU building after not wearing mask Local News Feb 4, 2021 Deb Gau Reporter Photo by Deb Gau dgau@marshallindependent.com
https://www.marshallindependent.com/news/local-news/2021/02/lynd-restaurant-owner-served-with-trespassing-notice/
11. (f) exercise reasonable care to prevent employees or other persons assisting or associated with the prosecutor in a criminal case and over whom the prosecutor has direct control from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6. Minnesota Court Rules Professional Rules Minnesota Rules of Professional Conduct Rule 3.8 Special Responsibilities of a Prosecutor https://www.revisor.mn.gov/court_rules/pr/subtype/cond/id/3.8/
12. Subd. 7. Criminal investigative data. Except for the data defined in subdivisions 2, 3, and 6, investigative data collected or created by a law enforcement agency in order to prepare a case against a person, whether known or unknown, for the commission of a crime or other offense for which the agency has primary investigative responsibility are confidential or protected nonpublic while the investigation is active.13.82 Comprehensive Law Enforcement Data.
https://www.revisor.mn.gov/statutes/cite/13.82
13. https://www.revisor.mn.gov/court_rules/pr/subtype/cond/id/3.6/ Rule 3.6 Trial Publicity (a) A lawyer who is participating or has participated in the investigation or litigation of a criminal matter shall not make an extrajudicial statement about the matter that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing a jury trial in a pending criminal matter. ... (c) No lawyer associated in a firm or government agency with a lawyer subject to paragraph (a) shall make a statement prohibited by paragraph (a).
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