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Legal Learning: The case against Tim Scannell

From James H. Manahan, J.D.

Silver Bay

It was a shock to everyone last fall when Cook County Attorney Tim Scannell was indicted by a grand jury in Duluth for criminal sexual conduct.  The indictment charged that he had “sexual contact” with a 16 or 17 year old girl on two occasions in August, 2012.  Under Minnesota law the age of consent for sexual relations in 16, but it was alleged that Scannell’s acts were a felony because he had a “significant relationship” with the girl and was more than four years her senior; the girl’s consent is no defense in such a case.

The term “sexual contact” is defined by Minnesota law as “the intentional touching by the actor of the complainant's intimate parts, or the touching of the clothing covering the immediate area of the intimate parts”.  According to the search warrant in this case, it is alleged that Scannell and the girl kissed and held hands and that he “touched her chest”.  Nothing more than that, apparently.

As for the “significant relationship”, Minnesota law defines that as the child’s parent, stepparent, guardian, other close relative, or an adult who resides with her.  Clearly, that doesn’t apply to Scannell.  His attorney therefore filed a motion to dismiss the charges.  The special prosecutor, Tom Heffelfinger, then moved to amend the indictment to change the words “significant relationship” to “in a position of authority” over the girl. 

Minnesota law defines “position of authority” as a person who is “charged with any of a parent’s rights, duties or responsibilities to a child, or a person who is charged with any duty or responsibility for the health, welfare, or supervision of a child”, including a psychotherapist.  The search warrant alleges that Scannell was a “family friend, coach, mentor and volunteer”, gave her guitar lessons, and “had significant influence over [the girl] and was in a position of power and authority based on his position as county attorney”.

The search warrants obtained by the police allowed them to search Scannell’s telephone, computer, and his Google, Facebook, iCloud, and LinkedIn accounts.  We do not know what they found.

The motion to dismiss and the motion to amend were heard by District Judge Shaun Floerke in Duluth on Oct. 31.  A week later he denied Scannell’s motion to dismiss and granted the prosecutor’s motion to amend the indictment.  His legal reasoning makes interesting reading.  The Minnesota Rules of Criminal Procedure allow the prosecutor to amend an indictment at any time before verdict as long as no additional or different offense is charged.  However, this rule only applies after the trial has commenced.  Another rule allows the prosecutor to amend criminal complaints at any time, but this does not apply to grand jury indictments since this “would not protect the function of a grand jury”.  What to do?  Judge Floerke decided to allow the amendment anyway, since the amendment “does not prejudice Defendant’s substantial rights”.  Mr. Heffelfinger submitted an affidavit saying that the grand jury “analyzed only the elements” of “position of authority”, and “did not consider whether or not Defendant had a significant relationship”.  Therefore, the judge ruled, the amendment “preserves the grand jury’s decision”. 

Scannell’s attorney also asked that all judges in the Sixth Judicial District be removed from the case based on the “politically and emotionally charged status of this matter”.  He asserted that any judge subject to election could be swayed by community pressure, and asked that a retired judge, not subject to election, be assigned to the case.  Judge Floerke also denied this motion, saying that this is not the first criminal case in Minnesota “in which community members have strong feelings about the outcome or which involves elected officials”.  He went on to say that “the Minnesota Constitution requires that judges in this state are elected.  Appointing a retired judge to hear a case simply because there are strong community opinions about it could be seen as unconstitutional.”

The next step in the case will be a pretrial evidentiary hearing (an “Omnibus Hearing”), which will be held in Duluth on March 27.

James H. Manahan is a Harvard Law School graduate and was named one of Minnesota’s Top Ten Attorneys.  He now handles family law, wills, and probate in and around Lake County, and does mediation everywhere.  The opinions expressed in this column are those of its author.