20210156 FILED JUNE 8, 2021 CLERK OF THE SUPREME COURT IN THE SUPREME COURT STATE OF NORTH DAKOTA
STATE OF NORTH DAKOTA
Supreme Court No.: 20210156 McKenzie Co. Case No.: 27-2020-CR-00767
The State of North Dakota, by and ) through the North Dakota Department ) of Human Services, ) ) Petitioner, ) ) v. ) ) The Honorable Robin A. Schmidt, ) District Court Judge, Northwest ) Judicial District, and ) Anthony Dwane Boldt, Jr., ) ) Respondents. )
RESPONSE ON BEHALF OF ANTHONY DWANE BOLDT, JR. TO PETITION FOR SUPERVISORY WRIT
RE: STATE OF NORTH DAKOTA V. ANTHONY DWANE BOLDT, JR. ORDER REGARDING CASE DATED MAY 10, 2021 AND ORDER TO ALLOW REPRESENTATION DURING PSI- RELATED EVALUATIONS DATED MAY 20, 2021 THE HONORABLE ROBIN A. SCHMIDT PRESIDING MCKENZIE COUNTY DISTRICT COURT NORTHWEST JUDICIAL DISTRICT
REDMANN LAW, P.C. 107 1st Avenue NW Mandan, ND 58554 (701) 751-7188 Attorneys for Anthony Boldt, Respondent
By: /s/ Chris Redmann Chris Redmann (ND ID #07523) [email protected]
1 Table of Contents
Table of Contents ...... p. 2
Table of Authorities ...... p. 3
Statement of the Issues ...... ¶ 2
Background ...... ¶ 4
Law and Argument ...... ¶ 10
Issue I: The Department of Human Services is not a party to this action and has improperly intervened on an issue which was undisputed by the parties...... ¶ 10
Issue II: A criminal defendant’s attorney can be present during sentencing- related, court-ordered evaluations when expressly ordered by the Court and agreed to by the State of North Dakota...... ¶ 16
Conclusion ...... ¶ 23
Certificate of Service ...... ¶ 24
Certificate of Compliance ...... ¶ 25
2 Table of Authorities
I. State Cases
Dickinson Newspapers, Inc. v. Jorgenson, 338 N.W.2d 72 (N.D. 1983) ...... ¶ 11, 13
Houston v. State, 602 P.2d 784 (Alaska 1979) ...... ¶ 17
Lee v. County Ct., 267 N.E.2d 452 (N.Y. 1971) ...... ¶ 17
People v. Martin, 192 N.W.2d 215 (Mich. 1971) ...... ¶ 17
State v. Mains, 669 P.2d 1112 (Or. 1983) ...... ¶ 17
II. Federal Case Law
United States v. Byers, 740 F.2d 1104 (D.C. Cir. 1984) ...... ¶ 19
III. State Statutes
N.D.C.C. § 12.1-01-04 ...... ¶ 21
Wash. Rev. Code Ann. § 10.77.020 (West 2002) ...... ¶ 17
IV. State Rules
Ala.R.Crim.P. 16.2 ...... ¶ 17
Fla.R.Crim.P. 3.216 ...... ¶ 17
N.D.R.Evid. 412 ...... ¶ 6
N.D.R.Crim.P. 32 ...... ¶ 7, 22
V. Constitution
U.S.CONST. amend. VI ...... ¶ 16
VI. Administrative Codes
N.D.Admin.Code § 75 ...... ¶ 21
VII. Miscellaneous
A.B.A. Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases 10.11(J) (Rev. Ed. 2003) ...... ¶ 17
3 [1] COMES NOW, Respondent, Anthony Boldt Jr. (hereinafter, Mr. Boldt) by and
through his attorney, Chris Redmann, and hereby provides this Response and further
requests this Court dismiss the Department of Human Services’ Petition for Supervisory
Writ and vacate the Stay entered on June 1, 2021.
I. STATEMENT OF THE ISSUES
[2] First: The Department of Human Services is not a party to this action and has
improperly intervened on an issue which was undisputed by the parties.
[3] Second: A criminal defendant’s attorney can be present during sentencing-related,
court-ordered evaluations when expressly ordered by the Court and agreed to by the State
of North Dakota.
II. BACKGROUND
[4] Mr. Boldt pled guilty to an amended information charging him with three counts of
incest on March 31, 2021. See Petitioners Appendix (hereinafter, “P.App.”) at pp. 3, 5-6.
While the exact facts of this case are not exceedingly material for purposes of the Court’s
consideration for this Writ of Supervision, this is an incredibly unique and bizarre case.
The uniqueness of this matter—coupled with a very verbose client—is what prompted
Undersigned’s desire to attend the psychosexual evaluation whereas typically it would not
be requested or pushed for.
[5] Briefly, the victim in this matter is the same victim in a federal case involving
Boldt’s father, Anthony Boldt, Sr., who was recently sentenced to 480 months of
incarceration. Anthony Boldt Sr. engaged in years of sexual assault with the victim prior
to any allegations against Anthony Boldt, Jr. Anthony Boldt, Sr. video recorded sexual
acts with the victim, forced the victim to watch the videos, and purportedly distributed
4 them on the dark web. He further impregnated her and subsequently paid for an abortion.
This is in addition to his attempt to contact her after his arrest and coax her into destroying
evidence. He further had a number of other images of child pornography known in the
national database of missing and exploited children.
[6] Anthony Boldt, Jr. and the victim are step-siblings and the sexual acts that took place in his case occurred when the victim was 17 years old, and he was 21 years old. He adamantly denies force was ever used in the several sexual acts that occurred in this matter
and insists they were entirely consensual. It was anticipated that at trial evidence would
have been elicited that she sought out and volitionally engaged in the sexual acts. The
victim also used strangely similar language in the allegations against Anthony Boldt, Sr.
as she did against Anthony Boldt, Jr. which was the topic of a Rule 412 pretrial ruling. See
District Court Doc. ID #52. Evidence would also illustrate that she was proud of sending
Anthony Boldt, Jr. to prison and bragging about getting even. Ultimately, the charges in
this matter were reduced to the three counts of incest, and his sentencing was set for July
7, 2021. See P.App. at pp. 5-6.
[7] Mr. Boldt was Ordered to complete a PSI in this matter prior to sentencing. See
P.App. at p. 7. Given the category of offense, a psychological evaluation of the Defendant
needed to be completed and was thereafter assigned to the Department of Corrections and
ultimately the Northwest Human Service Center for completion. Undersigned contacted
the Northwest Human Service Center to obtain information as to when the evaluation was
going to be scheduled. Undersigned was informed no information would be given without
a signed release of information. Within 48 hours, the Northwest Human Service Center
was provided the signed release of information. Staff at the Northwest Human Service
5 Center then informed Undersigned that the “Legal Advisory Unit” would not permit an
attorney’s presence and N.D.R.Crim.P. 32(c)(4) was cited to indicate presentence reports
could not be distributed to the parties absent a court order. Undersigned has never been
involved in a case in either state or federal court where a PSI was not disclosed to the
parties.
[8] The evaluation was ultimately scheduled for May 12, 2021, without involvement
or notice of Undersigned. Undersigned found out about scheduling of the evaluation from
Mr. Boldt, and thereafter sought arrangements for his presence during the evaluation.
Undersigned was informed the Northwest Human Service Center would prohibit his presence during the interview, and judicial intervention was sought on May 10, 2021. See
P.App. at pp. 8-12. The Court subsequently entered an Order expressly granting
Undersigned the authority to be present for the Defendant’s evaluation. Id. at p. 13. The
State did not object to Undersigned’s presence. The Order was relayed to the Northwest
Human Service Center on May 11, 2021, at 8:53 a.m. Later that same day at 4:53 p.m.,
Undersigned was informed the NWHSC had canceled the interview—in direct contravention of this Court’s Order. On May 19, 2020, another hearing was held on the issue and the Department of Human Services was invited to voice their concerns but failed to do so. Id. at pp. 14-24. An Order was entered to schedule the evaluation and allow
Undersigned to be present. Id. at pp. 25-27. The State continued to have no objection. No evaluation occurred.
[9] The Department of Human Services filed a petition for Writ of Supervision, and on
June 1, 2021, the North Dakota Supreme Court Stayed the evaluation pending briefing and argument on the issue. After nearly a eleven months in custody, Mr. Boldt is disappointed
6 this sentencing date will get rescheduled because the Department of Human Services has
taken the position it has.
III. LAW AND ARGUMENT
Issue I: The Department of Human Services is not a party to this action and has improperly intervened on an issue which was undisputed by the parties.
[10] The Department of Human Services is not a party to this action and has no legal
basis to intervene into a matter that was handled to the satisfaction of the State, the
Defendant, the PSI writer, and the District Court. Literally, no one has an issue with
Undersigned’s attendance at the evaluation except for the Department of Human Services.
[11] The Department of Human Services cites Dickinson Newspapers, Inc. v. Jorgenson
for the authority of a non-party to intervene because “no other remedy is available” and
this is a “matter of vital concern to the public.” 338 N.W.2d 72, 74 (N.D. 1983). This is
misplaced.
[12] First, the Department of Human Services had an opportunity to be heard on this
issue and was given notice of and invited to attend the May 19, 2021, hearing by the
McKenzie County State’s Attorney to articulate whatever concerns existed. In colloquial terms, the Department of Human Services ghosted the Court. See P.App. at p. 17 at l. 21-
25. They had the opportunity to articulate this concern to the Court and provide any
argument that was necessary, but unfortunately their argument on such a ‘vital public
concern’ was missed.
[13] Second, Jorgenson centered on a District Court’s censorship of the freedom of
press—a constitutional guarantee—and indicated a non-party may intervene because there
was no other available remedy, “and” it was a “matter of vital concern to the public.”
Jorgenson at 74. The fact that the Northwest Human Service Center does not want an
7 attorney to view their psychologist’s interview is a far cry from a Court censoring a public hearing in a homicide case. Just how this is a matter of vital public concern would be a tall, yet interesting tale. Just because someone—a government agency or not—does not like a judicial order, that does not mean they can simply go and intervene in the case.
Furthermore, the State was represented at the hearing, via the State’s Attorney, and there was no issue.
[14] The Department of Human Services also attempts to justify its intervention by indicating there is no law or rule which would otherwise allow an attorney to be present for an evaluation—but there is, of course, a conveniently established, albeit uncited,
Department of Human Services rule prohibiting it. That argument does not add or detract from the inability of the Department of Human Services to intervene in this matter.
[15] The Department of Human Services had an opportunity to be heard on the issue and affirmatively failed to exercise that opportunity at the May 19, 2021, hearing; furthermore, the Department of Human Services has failed to articulate how this is a matter of vital concern to the public. Accordingly, the Department of Human Services’ Writ of
Supervision should be denied for lack of jurisdiction.
Issue II: A criminal defendant’s attorney can be present during sentencing-related, court-ordered evaluations when expressly ordered by the Court and agreed to by the State of North Dakota.
[16] The Department of Human Services argues ad nauseum that a sentencing-related evaluation is not a critical stage of the proceeding when viewed in light of the 6th
Amendment and therefore a defendant’s right to counsel does not attach. That may be true; it also may not. There are a number of jurisdictions that have supported the Department of
8 Human Services position; however, there are a number which have not, and a District Court
determining the right to counsel exists in this case is not an abuse of discretion.
[17] Some of the jurisdictions that have found the right to counsel include Washington,
Alabama, Florida, Oregon, and New York. See, e.g., Wash. Rev. Code Ann. § 10.77.020(3)
(West 2002) (allowing the defendant to have counsel present at psychiatric evaluations);
ALA. R. CRIM. P. 16.2(b)(8) (stating that when the court orders a psychiatric evaluation
“[t]he defendant shall be entitled to the presence of counsel at the taking of such
evidence”); FLA. R. CRIM. P. 3.216(d) (permitting attorneys for the State and the accused to attend a court-ordered psychiatric evaluation in response to the defendant’s intent to
raise an insanity defense at trial); Houston v. State, 602 P.2d 784, 794–96 (Alaska 1979)
(finding that the Alaska Constitution’s guarantee that criminal defendants will enjoy the right to effective assistance of counsel implied that defendants have the right to have their
counsel present at psychiatric evaluations); Lee v. County Ct., 267 N.E.2d 452, 459 (N.Y.
1971) (holding that defense counsel should be present at psychiatric evaluations in order
to preserve the defendant’s right to counsel and cross-examine adverse witnesses); State v.
Mains, 669 P.2d 1112, 1116 (Or. 1983) (affirming that a defendant has the right to have
defense counsel physically present at a court ordered psychiatric evaluation); see also,
A.B.A. Guidelines for the Appointment and Performance of Counsel in Death Penalty
Cases 10.11(J) (Rev. Ed. 2003) (stating that if the court orders a psychiatric evaluation,
defense counsel should attend the examination). One of the more interesting positions is
in Michigan which leaves the presence of an attorney at an evaluation to the sound
discretion of the trial court. People v. Martin, 192 N.W.2d 215, 226 (Mich. 1971) (finding
9 defendant had no absolute right to have counsel present at psychiatric evaluation but
committing the matter to the trial court’s discretion).
[18] One of the most persuasive arguments which seems to indicate that the right to
counsel exists at court ordered psychiatric evaluations is the juxtaposition of that evaluation
when compared to other events which are known to invoke the right to counsel—
particularly the police lineup. From a pragmatic perspective, if a defendant needs a lawyer
when he is merely standing behind some one-way glass during a lineup, he definitely needs a lawyer when he is being asking about his sexual predilections and potential deviancies by a guy in a white coat with an IQ of 140. The idea is the same in each. Even if a lawyer does not or cannot actively engage in what is occurring, he can view, and notate, and bring discrepancies to the light of the court which may otherwise go unrecorded through intentional or unintentional biases. He may also address confusions or ambiguities for a client.
[19] Judge David Bazelon has a very insightful dissent in Byers when confronting then-
District Court Judge Antonin Scalia’s majority opinion, neither which the majority nor the
dissent would be binding authority on this Court. United States v. Byers, 740 F.2d 1104
(D.C. Cir. 1984). Judge Bazelon proffered that a skillful advocate could learn what exact
behaviors the expert rested his or her conclusions upon and then challenge the expert’s
conceptual framework. Id. at 1168. An expert would never be able to remember all of the
facts from an interview. Id. The expert’s presuppositions and theoretical viewpoints might
well lead the expert to disregard some facts, unimportant to that expert but critical to
another, or the expert’s own human frailty might have led the expert to omit facts from the
testimony. Id. at 1168-1169. Additionally, Judge Bazelon feared that an expert might
10 actually shape the accused’s behavior by asking certain questions, engaging the defendant
on one response but not another, or affecting the accused through the interviewer’s passive
characteristics. Id. The accused could not be counted on to recognize and remember these subtleties. Id. at 1170. Therefore, Judge Bazelon concluded that unless counsel were
present to observe the dynamics of the interview, its nuances would go unrecorded and the
defendant would be deprived of a chance to cross examine meaningfully the psychiatrist at
trial, in clear violation of the Sixth Amendment. Id.
[20] Notwithstanding the intellectual debate, this is largely an academic issue. The
Court does not need to render an opinion that a sentencing-related psychosexual evaluation
is a critical stage of the proceeding to allow Undersigned to attend Mr. Boldt’s evaluation.
Understandably, there are real public policy concerns to be aware of if that course were
taken. However, in this case, as Judge Schmidt articulated, “the statute doesn’t say you
can’t be there; that’s not what it says.” See P.App. at. p. 23, l. 2.
[21] There is not a statute or a rule or code provisions which would exclude an attorney from attending a court ordered evaluation. The sole exception is apparently some unscripted, uncited, unverified and incredibly convenient Department of Human Services
‘procedure’ that attorneys cannot attend these evaluations. The Department of Human
Services argues they are bestowed with this power via N.D.C.C. § 12.1-01-04(26) as the evaluation is a secondary process and “is to be approved by the Department of Human
Services.” One would wonder if there are actual rules and procedures or if they are just on the whim of someone’s email courage. A review of Title 75 of the North Dakota
Administrative Code (Department of Human Services) appears to be devoid of the ‘no attorneys allowed’ rule. The takeaway from the Department of Human Service’s position
11 seems to be that no one can tell them what to do because they are bestowed with the power to do whatever they want.
[22] Additionally, the Department of Human Services appears to take the position that
N.D.R.Crim.P 32(c)(2) specifically excludes the presence of counsel with the following language:
The Defendant’s counsel is entitled to notice and reasonable opportunity to attend any interview of the defendant conducted by parole and probation staff in the course of a presentence investigation.
That reading is illogical. First, the rule does not carve out an exception for an attorney’s presence at an evaluation (i.e. it does not state: Counsel allowed at PSI interview but not at evaluations). Second, the rule references parole and probation staff. The evaluations conducted by the Department of Human Services are at the behest of parole and probation staff and Department of Human Services doctors are essentially acting under the long arm of parole and probation by completing these evaluations which become part-and-parcel of the presentence investigation report that is signed by the probation officer. Finally, it makes zero sense to specifically tell a criminal defendant that you can have your attorney around when the probation officer asks you questions about where you went to school, but you lose your attorney when they start asking you about sexual deviancies and predilections. It is entirely antithetical. Furthermore, what good is having a lawyer during the main PSI interview (expressly allowed by rule) and at sentencing (definitively a critical stage) if you lose your lawyer during perhaps the most critical event in the entire case— when being interviewed by the State’s doctor in an unrecorded setting.
12 IV. CONCLUSION
[23] A criminal defendant’s representation during a sentencing-related, court-ordered
psychosexual evaluation is paramount to meaningful representation at the sentencing
hearing in any given case. In this particular matter, as a threshold issue, the Department of
Human Services improperly intervened given that they waived the opportunity to be heard
at the May 19, 2021, hearing and failed to demonstrate this matter is of vital public importance. Even if the Court finds that the Department of Human Services can properly
employ a Writ of Supervision, it should be denied as a valid order from Judge Schmidt, in
her sound discretion, orders the evaluation to take place with Undersigned being present.
Nothing in law or fact proscribes an attorney in North Dakota from being present during a
sentencing-related, court-ordered evaluation, and the Court should so order.
Respectfully submitted this 8th day of June, 2021.
REDMANN LAW, P.C. 107 1st Avenue NW Mandan, ND 58554 (701) 751-7188 Attorneys for Anthony Boldt, Respondent
By: /s/ Chris Redmann Chris Redmann (ND ID #07523) [email protected]
13 Certificate of Service
[24] The undersigned, being of legal age, being first duly sworn deposes and says that on the 8th day of July, 2021, he served true copies of the following documents:
1. Response on Behalf of Anthony Dwane Boldt, Jr. to Petition for Supervisory Writ
The aforementioned documents were served by filing through the North Dakota Supreme
Court E-Filing Portal with service upon the following individuals:
Ty L. Skarda McKenzie Co. Assistant State’s Attorney [email protected]
Honorable Robin A. Schmidt District Court Judge [email protected]
Andrew Moraghan Assistant Attorney General [email protected]
REDMANN LAW, P.C. 107 1st Avenue NW Mandan, ND 58554 (701) 751-7188 Attorneys for Anthony Boldt, Respondent
By: /s/ Chris Redmann Chris Redmann (ND ID #07523) [email protected]
14 Certificate of Compliance
[25] The undersigned, as attorney for the Respondent, Anthony Boldt, Jr., in the above-
captioned matter, and as the author of the Respondent’s Response, hereby certified, in compliance with N.D.R.App.P. 28 and 32, that the Respondent’s Brief is 10 pages, not including the cover page, Table of Contents, Table of Authorities, Certificate of Service nor the Certificate of Compliance. Respondent’s Brief was created using Microsoft Word for Office 365.
Dated this 8th day of June, 2021.
REDMANN LAW, P.C. 107 1st Avenue NW Mandan, ND 58554 (701) 751-7188 Attorneys for Anthony Boldt, Respondent
By: /s/ Chris Redmann Chris Redmann (ND ID #07523) [email protected]
15