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Discovery of decades-old tapes leaves 1986 Chisholm slaying trial in limbo

A judge granted a brief delay at a hearing Wednesday, but a frustrated defense attorney said more should be done to protect his client's right to a fair trial.

Michael Carbo
Michael Carbo
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VIRGINIA — A recent discovery of nearly 60 audio cassette tapes held by two law enforcement agencies has prompted a bid to postpone the upcoming trial for a Chisholm man accused of raping and killing a woman in 1986.

Judge Robert Friday on Wednesday granted a short continuance — from June 1 to June 6 — in the case of Michael Allan Carbo Jr., who was allegedly identified by DNA evidence in 2020 as the man responsible for the slaying of Nancy Daugherty.

But Friday, who sparred with attorneys on both sides at an animated, 45-minute hearing in State District Court, said he would consider a further postponement if materials discovered on the tapes are found to be significant to the case.

Defense attorney J.D. Schmid brought a motion to call off next week's trial date and allow his client to be released from pretrial custody, saying he was "unaware of any legitimate justification for the state's failure to provide this discovery to the defense well in advance of trial."

Attorneys told the judge that they only recently became aware of the interview tapes — approximately 31 held by the Minnesota Bureau of Criminal Apprehension, mostly from the mid-1980s, and roughly 28 by the Chisholm Police Department, circa the late 1990s.

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Nancy Daugherty
Nancy Daugherty

The agencies and the St. Louis County Attorney's Office have since been working to digitize the tapes so they can be provided to the defense — a process that prosecutor Jon Holets said could be completed in the coming days.

Holets contended that most of the interview contents had previously been disclosed to the defense in the form of police reports and transcripts. Court rules require that the defense be provided with all investigative materials related to the case, whether prosecutors intend to use it at trial or not.

But Schmid listed off a long list of interviews that he said had not previously been disclosed and maintained that Carbo would be denied a fair trial if his attorneys could not listen to the entirety of the tapes and conduct any necessary follow-up investigation.

"We don't know what we don't know," Schmid said of the contents, suggesting the interviews could yield new leads, such as an alternative perpetrator. "It is not objectively reasonable for a defense attorney to not review all the evidence in the state's possession, and there is no way for us to do that at this point."

Holets reluctantly agreed that a brief delay was appropriate given the circumstances, but strongly objected to the defense's motion to have Carbo released from his $1 million bail.

Friday suggested the prosecution was effectively admitting to a discovery violation in agreeing to the postponement. But Holets wouldn't go that far, saying he was simply looking out for "fundamental fairness."

"The state has an interest not only in trial but on appeal," he said. "So we believe the best route is a brief continuance."

Holets said the Chisholm tapes came to light when the defense conducted a physical review of evidence at the Chisholm Police Department. The BCA was then asked to see if it possessed any tapes, just last week locating theirs at a state storage facility in the Twin Cities suburb of Arden Hills.

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Holets said he doesn't anticipate using any evidence from any of the newly discovered tapes, but conceded that there unknowns involved.

Friday, pointedly questioning both attorneys, said he was "most annoyed" with the prosecution and found it "definitely discouraging" that there was a failure to direct every law enforcement agency involved in the case to conduct a thorough review of records in the nearly two years since Carbo was charged.

The judge found that there was a violation of discovery rules, deeming it to be inadvertent rather than intentional. But he said he was "extremely loathe" to delay the trial, citing Carbo's already long wait to have his day in court, and directed the defense to report back on June 6 with its findings from the interviews.

If relevant information is discovered, Friday said he would entertain a new motion to postpone the trial and release Carbo from custody.

A frustrated Schmid strongly objected to the judge's order, saying it would be impossible for him to both prepare for trial while reviewing hours of new material.

But the judge was having none of it, telling the defense attorney: "I'm not asking you what you think. I'm ordering."

"The state bears a large responsibility," Friday said. "But if there's nothing that impacts the case, then we're going to trial on June 6."

The judge on Wednesday also denied a defense challenge to Carbo's indictment by a grand jury in April. Schmid had contended that the panel was not properly vetted for bias amid extensive pretrial publicity and that jurors were denied evidence and testimony they requested in the course of the proceeding.

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Friday noted in his order that the panel was questioned about knowledge of the case, with one panelist even dismissed as a result, and that jurors were not forced by prosecutors into premature deliberations before returning the indictment.

Carbo, 54, faces two counts of first-degree murder while committing criminal sexual conduct and one count of intentional second-degree murder. He faces mandatory life imprisonment without parole if convicted of either of the top offenses.

While jury selection is tentatively set to begin June 6, testimony likely wouldn't occur until the week of June 13, and the trial would be expected to continue for much of the month.

Tom Olsen has covered crime and courts for the Duluth News Tribune since 2013. He is a graduate of the University of Minnesota Duluth and a lifelong resident of the city. Readers can contact Olsen at 218-723-5333 or tolsen@duluthnews.com.
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