Attorneys, judge take witness stand in Duluth sex abuse case – Duluth News Tribune
DULUTH — A bizarre twist in what is believed to be the state’s oldest pending criminal case resulted in the prosecutor taking the witness stand Thursday, along with a sitting judge and a former elected county attorney.
Shawn Francis Mortensen, 44, of Brookston, has been under prosecution for alleged child sex crimes since 2016. The case saw numerous delays over the years before a St. Louis County jury finally began hearing testimony last October — only to have the proceeding end in a mistrial.
A defense attorney now says he should not be tried again, arguing that prosecutors failed to disclose relevant information in a timely manner and unnecessarily delayed bringing the defendant to trial.
Our system is not doing anyone any favors, including the victim, Mr. Mortensen or any of the witnesses in this case.
9th District Judge Jerrod Shermoen, of Koochiching County
Late discovery raises fairness concern
The case involves allegations that Mortensen sexually abused a young child on several occasions between 2012 and 2015. The child reportedly made a comment to her teacher, who in turn referred the matter to the social services and law enforcement.
The girl underwent a forensic interview at First Witness Child Advocacy Center in October 2015, and an initial charge was filed in April 2016. However, subsequent interviews with the alleged victim in May 2017 and July 2021 resulted in additional charges based on assertions that Mortensen had exposed himself to the child and made her engage in sexual acts on several occasions.
The child, her teacher and a social worker all testified at the October 2022 trial before it was derailed by the discovery of another video interview of the alleged victim. That interview, conducted at First Witness in May 2015, just months before Mortensen’s arrest, stemmed from a report that the child had been sexually abused by another minor.
St. Louis County prosecutor Jon Holets promptly turned over a copy, but defense attorney Robert Christensen said he needed time for an expert witness to review the video and argued his trial strategy was affected by the lack of prior disclosure. A frustrated Judge David Johnson said he felt he had no choice but to order the mistrial.
Minnesota Rules of Criminal Procedure require prosecutors to timely turn over all police reports, photographs, videos, transcripts and other materials that relate to the case or may be helpful to the defense. A failure to do so is a serious ethical concern, known as a Brady violation, that can result in a variety of sanctions.
Jon Holets
Holets, called to testify as a witness at Thursday’s evidentiary hearing, described the video’s late disclosure as an honest mistake and said he, too, was frustrated by the situation.
The parties were long aware of the earlier abuse report, but the prosecutor said it wasn’t until he was preparing for trial in late 2019 or early 2020 that he first suspected there may have been a formal interview conducted at First Witness, where he is also a board member.
Holets said he called the advocacy center and was assured they did not have anything in their files related to the May 2015 incident involving the other perpetrator. But when the interviewer, Rachel Johnson, showed up to testify at Mortensen’s trial, she had a DVD in her possession containing the interview.
“I was bewildered, shocked and also pretty confused,” Holets testified, expressing disappointment the alleged victim was put through testimony without receiving any resolution in her case.
Agencies say they never got video
Johnson, who now works at the Zero Abuse Project in the Twin Cities, said the disk was included in materials she requested from First Witness ahead of the trial. She testified she did not realize the importance of the earlier interview, as it was not mentioned to her as relevant to the Mortensen trial.
She added that the interview apparently was not located when Holets inquired about it years earlier due to an apparent name misspelling in the records database and challenges associated with working remotely during the pandemic.
Holets, who was recently promoted to deputy county attorney, said he believed he was diligent in handling evidence in Mortensen’s case and denied that he ever intentionally withheld evidence from the defense.
“I knew the child had been sexually assaulted by another child,” he said. “I wanted to get to the bottom of it. One of my primary objectives during the pandemic was to try to get the Mortensen case over with. When I got it, it was already too old for my liking.”
First Witness Child Abuse Resource Center at 4 W. Fifth St., Duluth.
Bob King / 2011 file / Duluth News Tribune
First Witness is a nonprofit organization that provides training and conducts forensic interviews of alleged child victims of physical and sexual abuse in accordance with a protocol that allows the statements to be admissible in court. As an independent organization, it does not answer to law enforcement, prosecutors, social services or any other government agency, and it does not directly refer reports to the county attorney‘s office.
Duluth police investigator Ryan Temple, who was involved in the May 2015 investigation, said he searched the department’s records databases and could not find any indication that the interview had been sent to the agency. He said that’s not unusual if the case is not going to be referred for charging.
Judge Rebekka Stumme.
Contributed / Jeff Frey
David Vukelich, a former supervisor in the Initial Intervention Unit at St. Louis County Public Health and Human Services, also testified that his agency did not have the video, as its only role was to provide services to the alleged victim’s family.
The case was initially prosecuted by Rebekka Stumme before she was appointed as a judge in Carlton County in 2019. Appearing in court under a subpoena Thursday, she acknowledged first receiving a discovery request in 2016 but said she had limited recollection of the case.
Asked by Christensen if she was aware of the May 2015 interview, the judge replied: “I don’t know what you’re referring to.”
Former St. Louis County attorney Mark Rubin
The defense also called former St. Louis County attorney Mark Rubin as a witness in an attempt to establish that the office lacks adequate procedures to ensure discovery requirements are met. Rubin, who retired in 2021, testified that prosecutors receive various training and are expected to abide by court rules, referring the attorney to written policies.
“Forty-four years,” Rubin said of his legal career. “I finally got a chance to sit in the witness stand.”
‘Unacceptable’ delay in justice
The day started acrimoniously for Mortensen, who, upon being told he could not bring his lunch bag into the hearing, hurled it against a wall, causing salad to spill across the courtroom. He apologized and cleaned it up with assistance from his attorney, but later received a stern lecture from the judge.
Mortensen, who said he has been diagnosed with explosive disorder, testified that he is “angry” and “depressed” after eight years of dealing with court appearances, lawyers, social workers, judges and, most importantly, allegations that he is a child molester.
Of the mistrial, he said: “I was a little bit happy. I hoped it would be done.”
However, the county attorney‘s office is seeking another trial date. Prosecutors have argued that Mortensen himself made 12 continuance requests over the course of the case, that the appropriate remedy for the Brady violation is a new trial and that the proceeding is not barred by double jeopardy as Mortensen was not “intentionally provoked” into requesting the mistrial.
Because Holets was required to testify, a prosecutor from the office’s Iron Range division, Chris Florey, was tapped to handle questioning and legal briefing on the issue. And with a sitting judge from the 6th District taking the witness stand, the Minnesota Supreme Court appointed 9th District Judge Jerrod Shermoen, of Koochiching County, to preside.
Judge Jerrod Shermoen
Shermoen said he sees urgency in moving the case forward, giving attorneys limited time to submit written briefs on the issues before he rules on whether Mortensen can again face trial. He is expected to take the matter under advisement by Dec. 1.
“Our system is not doing anyone any favors, including the victim, Mr. Mortensen or any of the witnesses in this case,” Shermoen said. “If there is a trial, it would be sometime in 2024. It is unacceptable, folks. It’s unacceptable.”
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