Port: Marsy's Law impedes justice once again

"Why should any defendant, however severe the charges against them, be denied the opportunity to review all the evidence collected by law enforcement?"

41-year-old Shannon Brandt, left, and 18-year-old Cayler Ellingson.

MINOT, N.D. — The criminal justice proceedings around the death of Cayler Ellingson have been fraught from the beginning.

The case made national headlines when conspiracy mongers in Donald Trump's shameful political cult pounced on a police report which implied that Shannon Brandt, the man accused of murdering Ellingson, had done so because the victim was a Republican.

It was bunkum, as has now been demonstrated by the release of the 911 call recording, but don't expect any apologies from the Facebook demagogues and cable news pundits who ghoulishly turned Ellingson's death into another front in the culture wars.

"Kevin O'Leary had a point when he compared North Dakota's economic policies to Minnesota's, but in making it he made our state seem small and petty."
"A Sanford employee on a committee chaired by a Sanford-funded politician moved to reconsider a bill so that another Sanford-funded politician could make an amendment a Sanford lobbyist asked for."
"Even if Trump is convicted in the criminal justice system, it's not going to matter in the political system until Trump's supporters care about the honesty and integrity of their candidate."
"The way things are trending, the tax policy that emerges from this Legislature may tilt more toward failed property tax buydowns than income tax relief."
"But I suspect that won't stop many self-styled 'conservatives' in this era of Republican politics, dominated by reactionary supporters of Donald Trump, from accusing him of liberalism."

But now the case is making headlines for another reason, this time thanks to Marsy's Law, an ill-advised amendment to our state constitution, paid for by a skeezy billionaire and implemented through North Dakota's egregiously stupid initiated measure process.

Marsy's Law purports to be about victim's rights, but as predicted by the lawyers and prosecutors and judges whose warnings were drowned out by the initiated measure campaign's well-financed marketing blitz, it's an impediment to justice. Though not typically in cases as high-profile as this one.


Ellingson's family is invoking Marsy's Law to block Brandt's lawyers from obtaining evidence the cops have extracted from the victim's cellphone. The prosecution only wants to turn over data from the phone from the two days around Ellingson's death, arguing that no other data from the phone is relevant to the case. Meanwhile, Ellingson's family is accusing the defense of victim blaming.

"The Ellingson family tragically and unexplainably lost their son due to the actions of the defendant," their statement to reporter April Baumgarten 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."

Brandt's lawyers disagree, and why wouldn't they?

Why should any defendant, however severe the charges against them, be denied the opportunity to review all the evidence collected by law enforcement?

Remember, the prosecution is trying to put Brandt in jail. The family, meanwhile, is seeing this situation through the lens of a type of grief few of us can understand. Neither of these parties is objective, yet they get to be the ones who pick and choose, under the guise of Marsy's Law, which evidence is and is not germane to his defense?

“Mr. Brandt cannot receive a fair trial when the government interviews witnesses, gathers and forensically examines evidence, and then withholds that information from him,” Brandt's attorney wrote in a brief to the court.

If you will, dear reader, please divorce this debate from your feelings about Brandt, Ellingson, and the political hoopla surrounding the tragic and deadly altercation between them last year.

What is before us is a question of how our criminal justice system should work.


Marsy's Law is putting the victim's family, and the prosecutors, in charge of cherry-picking which evidence the defendant can access to make his case.

It's a situation that should be anathema to those of us who value justice.

Opinion by Rob Port
Rob Port is a news reporter, columnist, and podcast host for the Forum News Service. He has an extensive background in investigations and public records. He has covered political events in North Dakota and the upper Midwest for two decades. Reach him at Click here to subscribe to his Plain Talk podcast.
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