Back in October of 2014 a man named Dustin Irwin, who as a prisoner at the Ward County Jail here in Minot, died during a prison exchange with Burleigh County. As a result county Sheriff Steve Kukowski was charged with three Class A Misdemeanors including “public servant refusing to perform duty” and two counts of “reckless endangerment.”
A captain at the department was also charged initially, but that’s since been dismissed.
Proceedings to officially remove Kukowski from office were initiated under former Governor Jack Dalrymple at the behest of Divide County State’s Attorney Seymour Jordan who has been handling the criminal case (Ward County officials recused themselves). The Ward County Commission is now asking new Governor Doug Burgum to stop the removal proceedings.
The commissioners are frustrated with how long this situation has dragged out.
“This has gone on long enough,” Commissioner Alan Walter said according to the Minot Daily News. “The man is in limbo, has been for close to a year. Nothing has come of it. I don’t know that anything ever will.”
“I think enough is enough. We have been on a witch hunt damn near a year,” Walter continued. “It’s time we stand up and say, ‘This man was duly elected, was not proven guilty of anything. He can go back to work.'”
Walter and his fellow commissioners are absolutely right to be upset with the way this has been handled.
It’s now 2017. This incident originated in 2014. It took roughly a year after the initial investigation into Irwin’s death for prosecutors to bring the charges against Kukowski. They were filed in February 2016. Since then there has been one delay after another from prosecutors who have, according to court filings, have fought discovery requests from defense attorneys.
In fact, just last month Jordan filed a motion to quash a request for discovery from the defense, which is unusual since the defense has a right to discovery (it was rejected by the judge).
Also problematic is that Jordan made a mistake with the initial criminal complaint. He got the date of Irwin’s death wrong – the criminal complaint states that it happened in 2015; it really happened in 2014 – and that’s a big problem.
Amending the charge means dismissing the old charge and replacing it with a new charge with the right date. Only the statute of limitations on these misdemeanors lapsed in October, and Irwin didn’t bring the issue up in court until December. The judge has told Jordan that he must proceed with his complaint as is, which will make prosecution basically impossible.
The trial was supposed to begin today, but Jordan is asking the state Supreme Court to step in and order the district court judge to let him amend the charge so things are delayed while that plays out.
All this sturm und drang to prosecute three misdemeanor charges. A process requiring – because it’s the prosecution of a county official – a prosecutor who must travel from Crosby and a judge who must travel from Grand Forks at no small cost to taxpayers. Adding to that cost is the fact that Kukowski has been suspended with pay since July, with the deputy sheriff who stepped in receiving a sheriff-level salary, all while leaving the Ward County Sheriff’s Department short handed.
Which isn’t to belittle the tragic reality of Irwin’s death. It’s clear that people need to be held responsible for that. Part of the case against Kukowski is that he was operating the Ward County Jail at 150 percent of capacity (a side effect of the state’s oil boom) but it’s not like this was a secret, or something unusual to Ward County during the oil boom years. The record shows that Kukowski kept both the Ward County Commission and the North Dakota Department of Corrections apprised of that situation.
If that overcrowding is worthy of criminal charges, why aren’t other public officials being prosecuted?
The “public servant refusing to perform duty” charge against Kukowski stems from his alleged refusal to get jail personnel trained in a timely fashion, but the record shows that when Kukowski signed his people up for training courses offered by the state he was rebuffed because there weren’t enough training slots. Kukowski responded by instituting his own training regimen which, ironically enough, has taken on some of the overflow from the state training program.
Still, these things need to be talked about. Did the prison overcrowding contribute to Irwin’s death? Maybe, but Kukowski is hardly the only official on the hook for that. Was a lack of training a problem? Maybe, but can Kukowski be blamed for an overwhelmed state training program?
It’s also not at all clear from the record that there’s anything which could have been done to save Irwin’s life. He had a long history of substance abuse and other medical problems. His cause of death, in a medical transport helicopter nine hours after he was transferred into Burleigh County’s Custody, was “agitated delirium.” Prior to that he was showing symptoms of withdrawal and, while in custody of Ward County, had been fighting with law enforcement officers and other inmates.
This matter was handled poorly under Governor Jack Dalrymple. Our new governor has an opportunity to make this matter right. Burgum should stop the removal process against Kukowski and let the sheriff get back to work, and then initiate an effort to address some of the real problems – including training delays and prison overcrowding – which this debacle has exposed.
As for the criminal charges, I don’t think they’re going to stick. Even if they don’t collapse under the weight of the prosecution’s date snafu, the case against Kukowski seems thin at best.