Family seeks to conceal phone data of North Dakota teen killed after street dance

CARRINGTON, N.D. — Invoking a victim rights law, the family of a North Dakota teenager whom authorities alleged was killed over a political argument says the defendant in the case should not have access to the teen’s phone data.

But the defense attorney for 42-year-old Shannon Joseph Brandt claims in court filings that information from the phone could show that the teen’s past behavior of alleged bullying and his family's conduct may have played a role in his death.

Defense attorney Mark Friese has asked Foster County District Judge Bradley Cruff to force prosecutors to hand over all evidence obtained while extracting data from 18-year-old Cayler Ellingson’s cellphone. Prosecutors alleged Brandt ran over the Grace City teenager with a vehicle on Sept. 18 after a street dance in McHenry, a town roughly 50 miles north of Jamestown.

A jury will have to decide whether Brandt, or Ellingson’s own actions combined with others, caused the teen’s death, Friese wrote in a brief requesting the phone data. If convicted of murder, Brandt faces a maximum penalty of life in prison without parole.

Matt Henson / WDAY

Brandt, of Glenfield, also faces a felony charge of failing to immediately stop or return to the scene of a fatal crash.

Prosecutors have disclosed to the defense phone data from Sept. 17 and 18. Additional phone data could piece together a larger picture of what led to the incident, Friese wrote in a brief.

The data may contain information that could show Ellingson's alleged "aggressive or instigative conduct," according to the brief. A second brief suggested Ellingson bullied others in the past.

Evidence and an independent investigation by the defense revealed Ellingson's parents and brother may have purchased or provided alcohol to the teen, Friese wrote in the second brief. The family also may have helped Ellingson get a fake identification card, according to that brief.

An autopsy report revealed Ellingson’s blood alcohol level was over 0.20%, the defense said in court documents.

"His family left him alone in town, while he had an alcohol concentration in excess of 0.20," the defense's second brief said. "Whether the pedestrian was an experienced drinker or had limited exposure to alcohol is relevant to the effects of his intoxication. Whether his family condoned and permitted illegal alcohol use is material to causation arguments at trial."

Ellingson's family said in a statement to The Forum that they have fully cooperated with authorities. The Ellingsons said they trust the process of prosecuting Brandt and in seeking justice through the court system.

"The Ellingson family tragically and unexplainably lost their son due to the actions of the defendant," their statement said. "Blaming the victim based on baseless and untrue allegations and seeking information unlikely to be relevant to any proceedings only detracts from the pursuit of justice and finding closure for the victims."

In a letter filed in court, Ellingson’s family has cited North Dakota’s victim rights clause, also known as Marsy’s Law, as a reason to deny the phone data to the defense. North Dakota law prevents information from being released that could be used to locate or harass a victim or their family.

Ellingson’s family claims in the letter that his phone data is not relevant to the case. The phone contains photos, family conversations and other private information that “belong to only our family,” the letter said.

“We have suffered the tragic loss of our son/brother, and we want his phone data to remain with his phone and only released to us,” the letter said. “His phone is one of the few things we have, and what it contains doesn’t need to be made public for the world to see.”

The Ellingsons said in a statement that they have a constitutional right to privacy and to any protections that North Dakota law grants to victims.

Ellingson’s death gained national attention a fter a North Dakota Highway Patrol report alleged Brandt thought the teenager was a “Republican extremist” who was calling people to come after Brandt. Prominent Republicans questioned why Brandt was initially charged with criminal vehicular homicide instead of murder.

Brandt acknowledged drinking the night of the collision and consented to a chemical breath test, according to the Highway Patrol report, which said Brandt's blood alcohol level was about 0.08%, the legal limit to drive.

Brandt allegedly left the scene of the collision and returned to make the 911 call, the report said. He remained at the scene until a paramedic arrived but didn't wait for law enforcement to show up, the Highway Patrol said.

Foster County State's Attorney Kara Brinster later determined murder was a more appropriate charge in the case. The defense has claimed public outcry pressured the prosecution to seek the harsher murder charge.

Brandt told 911 dispatchers in a call after the collision that Ellingson “was saying something about some Republican extremist group,” according to a transcript of the call. Brandt was “trying to escape” from Ellingson, Friese said in court documents.

A state medical examiner determined Ellingson’s death was an accident, not intentional, the defense has said.

“Erroneous claims” that Brandt killed Ellingson because the teenager was Republican have caused “misplaced hysteria,” Friese said in court filings.

Brinster, the prosecutor in the case, has opposed releasing the phone data beyond Sept. 17 and 18, saying it is not being used by the prosecution and that it wouldn’t be helpful to the defense. She noted Ellingson and Brandt didn't know each other before the night of the collision.

Marsy’s Law has been criticized as infringing upon due process rights for defendants. Friese argued in a response to Brinster's opposition that the right of a defendant to obtain evidence that could help his case, which is guaranteed in the U.S. Constitution, overrides a victim’s right granted by a state law.

“Mr. Brandt cannot receive a fair trial when the government interviews witnesses, gathers and forensically examines evidence, and then withholds that information from him,” Friese wrote in his second brief.

The defense argued in the brief that all “victims," including Brandt, are entitled to equal rights. North Dakota law broadly defines a victim as someone who “suffers direct or threatened physical, psychological or financial harm” as the result of a crime.

Based on its investigation, the defense claims Ellingson threatened to call a posse or “members of an extremist group to harm” Brandt, Friese's brief said. It’s possible the threat may have been made falsely, Friese wrote in the brief.

Brandt was threatened with physical harm, the defense argued in its brief.

“The pedestrian (Ellingson) has previously harassed, intimidated and bullied others, and may have been especially inclined to intimidate those, like Mr. Brandt, who suffer from conditions impacting their ability to communicate effectively or to stave off harassment,” Friese wrote in his brief.

Friese told The Forum that Brandt suffers from "a condition or conditions which creates problems with social communication and interaction, learning, anxiety, increased fear and apprehension, and related impediments."

In his brief, Friese wrote that Ellingson's family shouldn’t be able to “conceal their contribution to the events” or evidence from the phone that could shed “light on past similar behavior or further exposes contributory conduct” by claiming the phone data is confidential or privileged.

Brandt would invoke his right to prevent prosecutors from disclosing “privileged or confidential information” about the defendant to the jury or others, Friese wrote in the brief.

Motions can be made to prevent the phone data from being released to the public, Friese said. He called suggestions that the defense would use the information to harass Ellingson’s family “offensive and untrue.”

A hearing on the release of the phone data to the defense is scheduled for Friday, Feb. 17. Brandt's trial is slated to begin in late May.