Fitch trial opening delayed until Thursday

ST. CLOUD – The trial Brian G. Fitch, who stands accused of gunning down Mendota Heights police officer Scott Patrick last summer and of shooting at three St. Paul police officers trying to capture him, got off to a wild start Tuesday when one juror was excused and another hurriedly seated before the entire trial was put on hold for two days over explosive new evidence.

The twists and turns came one after another on what should have been the day that prosecutors made their opening statements. The state's case will now be heard Thursday morning when the trial resumes. Dakota County District Court Judge Mary Theisen ordered a break Tuesday afternoon to give Fitch's defense team time to examine an alleged confession by Fitch that prosecutors say they learned of just last week.

It was the latest example of what defense attorney Lauri Traub has called unacceptably late filings of evidence in the case, and this time she said she wanted the evidence excluded, the trial delayed, or a mistrial called if she couldn't get either of the first two.

"It appears the state isn't ready to go to trial," she told the court. "They made a speedy trial demand and they're continuing to do investigation when the trial has already started."

The day got off to an unscripted start when Theisen said she learned that a juror had become fearful of serving on the case after her job was made public in media reports, potentially identifying her.

The juror, who was known in court only as juror 44, said her daughter contacted her Friday after seeing reports that published details of the woman's job dispensing medicine in the Stearns County jail. The woman had even dispensed pills to Fitch last week before she was placed on the jury, a coincidence reported by several media outlets, including the Star Tribune.

"It scares me to death now that everybody knows," the woman told Theisen on Tuesday morning when she was asked about her state of mind. Theisen excused the juror and apologized to her before putting the court in recess. Her dismissal set off a scramble to find a final juror that lasted until early afternoon. Six prospective jurors were interviewed and excused. The seventh person questioned, juror 74, was seated, restoring the jury to 14 people.

Juror 44 was the second seated juror excused over safety concerns. A juror last week said she feared for her safety after potentially identifying details about her job were published by a television station. She was excused Friday and a replacement was found the same day.

On Tuesday, Theisen resumed the case with a full jury at 2 p.m. That's when Traub made good on her earlier threats to call for a delay because of new evidence introduced by the state. Traub said she received an e-mail Monday from prosecutor Phillip Prokopowicz that the state had recently learned of a confession from Fitch and planned to use it in the trial. According to the new information, Fitch allegedly told an associate just before his capture that he had drugs in his car and "had no choice" but to shoot at officer Patrick during the otherwise routine traffic stop.

Traub complained about the timing of the new evidence, but Prokopowicz and his co-prosecutor Richard Dusterhoft said the information only came to light last week when a woman contacted authorities to say she had spoken to an inmate at Sherburne County jail, the man who said he heard Fitch's confession. Dusterhoft said the prosecution moved as swiftly as it could to gather the new evidence and submit it to the court.

Theisen said it's unlikely that she will suppress the new evidence, as Traub has requested, but agreed with the defense that the new information could substantially change the defense strategy, and granted their request for a delay until Thursday morning. Traub said she needs to interview the inmate. She also needs his criminal record and other paperwork.

This would be the third incriminating statement allegedly made by Fitch. Prosecutors say he told a woman that he would shoot if he was ever stopped by an officer. They also say he was heard by a police officer saying, "Just to let you know, I hate cops and I'm guilty," while in a hospital bed recovering from wounds sustained in a shootout with St. Paul police.

Matt McKinney • 612-673-7329