Brothers can be retried in Mpls. cop's assault case, appeals court rules

The appeals court said two Iowa brothers accused of attacking a police officer in 2007 must face charges again.

By ROCHELLE OLSON, Star Tribune

Last update: July 21, 2009 - 7:56 PM

Two Iowa brothers can be retried for an assault on a Minneapolis police officer outside Hooters on Block E in May 2007, a state Court of Appeals panel ruled Tuesday.

The court rejected many arguments, including double jeopardy, made by defense attorneys for Tanner and Tyler McCormack.

The brothers were tried in Hennepin County District Court in January 2008. The jury deadlocked, and Judge Steven Pihlaja declared a mistrial. The McCormacks' lawyers, Jill Clark and Jill Waite, argued against a retrial, citing double jeopardy -- the prohibition against being tried twice for the same crime.

Pihlaja, who has since died, rejected the argument but ordered separate trials for the brothers. The Court of Appeals agreed.

The defense lawyers also argued a retrial should be barred because of juror misconduct.

Clark and Waite noted that some members of the jury reported reading news reports on the case. But Court of Appeals Judge David Minge, writing for a panel that also included Judges Larry Stauber and Michelle Larkin, said the issue wasn't relevant because the defense did not raise it in Hennepin County.

The defense lawyers also claimed that the prosecution engaged in a "vexatious or harassing" investigation of a juror after the trial. That juror eventually pleaded guilty to lying during jury selection about her criminal history. She was the lone hold-out for acquittal of the brothers, other jurors reported after the trial.

Minge said the McCormacks presented no argument showing how the post-trial investigation of the juror related to the deadlock.

Assistant Hennepin County Attorney Dan Allard has said prosecutors intend to retry the brothers, who are accused of assaulting Officer James Lynch.

Lynch was off duty but in uniform and working security on Block E. The incident was captured on video and played repeatedly at trial. The McCormacks say that Lynch was the aggressor. Lynch has said that he tried to subdue the brothers after they assaulted him.

The McCormacks, of Cedar Falls, Iowa, were in town for a bachelor party and were at Hooters for dinner when the manager told Tanner McCormack to leave because he was drunk.

In the hall, he encountered Lynch and called him fat. Clark and Waite said that angered the officer, who pushed Tanner down. Tyler then tried to help his brother, the lawyers said.

Clark said she had not read the opinion and declined to comment. Waite did not immediately return a call for comment.

Rochelle Olson • 612-673-1747