Casimir Robert Krithers v. State of Minnesota, A16-829

Background

Appellant Casimir Krithers is held pretrial on felony and misdemeanor domestic-assault-related charges with $50,000 bail. He alleges illegal confinement based on recording/downloading of his jail phone calls to his attorney.
Jail phone system had a glitch causing calls on the attorneys’ private list to be captured; investigator downloaded 52 calls and produced CDs to the prosecutor and defense counsel.
Prosecutor recognized defense counsel’s number, immediately notified defense counsel, and placed the CD in a box to be destroyed; both prosecutor and investigator testified they did not listen to privileged calls.
District court held an evidentiary hearing, conducted an in camera review, and denied motions to dismiss and for relief, finding the intrusion unintentional and no confidential trial-strategy information obtained.
Appellant filed a habeas petition in the same criminal file seeking release; the district court summarily denied it as improper substitute for appeal and because confinement was not shown to be illegal.
On appeal, the court affirmed: habeas was not the proper vehicle for these trial issues and the record did not show prejudice from the recording; the judge properly ruled on the habeas petition despite a later nunc pro tunc recusal entry.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether recording/downloading attorney calls renders pretrial confinement illegal (violation of right to counsel / attorney-client privilege)	Recording and download violated attorney-client privilege, chilled communications, and tainted evidence, so confinement is illegal	Issue already addressed by district court; habeas is not proper remedy for trial error; appellant can raise on appeal from final judgment	Denied: habeas inappropriate; appellant failed to show prejudice or that state used privileged info to his detriment
Whether summary denial of habeas was proper given prior district-court ruling	Habeas relief required because constitutional right to counsel was violated	Prior December 29 order resolved the same claims; appellant has appellate remedy after conviction	Denied: habeas cannot substitute for appeal; district court’s findings supported no constitutional violation
Standard for prejudice when calls were recorded but not listened to	Chilling effect on attorney-client communications constitutes prejudice	Prejudice requires a showing that information was used to defendant's detriment (per Andersen)	Held: No showing of prejudice on current record; district court’s in camera review supported decision
Whether judge lacked authority to rule on habeas due to nunc pro tunc recusal	Judge’s July 14, 2016 nunc pro tunc recusal to Dec. 29, 2015 deprived judge of authority to rule on habeas	Nunc pro tunc cannot supply judicial action retroactively; no prior disqualification sought; recusal after ruling doesn’t invalidate prior adjudication	Denied: judge properly ruled; nunc pro tunc recusal was unnecessary and did not divest authority at time of ruling

Key Cases Cited

State v. Schnagl, 859 N.W.2d 297 (Minn. 2015) (describes habeas corpus as remedy to challenge custody or length of confinement)
State ex rel. Guth v. Fabian, 716 N.W.2d 23 (Minn. App. 2006) (de novo review where facts undisputed in habeas appeal)
Breeding v. Swenson, 60 N.W.2d 4 (Minn. 1953) (habeas is civil remedy and not a substitute for appeal or motion to correct judgment)
Case v. Pung, 454 N.W.2d 275 (Minn. App. 1990) (habeas may challenge pretrial confinement in limited circumstances)
Kelsey v. State ex rel. Wood, 283 N.W.2d 892 (Minn. 1979) (habeas inappropriate for trial errors; addresses jurisdictional claims)
State v. Andersen, 784 N.W.2d 320 (Minn. 2010) (recording but not listening to attorney calls requires showing that recorded information was used to defendant's detriment)
County of Washington v. TMT Land V, LLC, 791 N.W.2d 132 (Minn. App. 2010) (explains purpose and limits of nunc pro tunc orders)
Hampshire Arms Hotel Co. v. Wells, 298 N.W.2d 452 (Minn. 1941) (nunc pro tunc corrects record clerical omissions and cannot supply judicial action)
State v. Yeager, 399 N.W.2d 648 (Minn. App. 1987) (judge’s familiarity with defendant does not alone show prejudice requiring disqualification)