This piece is a commentary, part of The Appeal’s collection of opinion and analysis on important issues and actors in the criminal legal system.
For nearly 17 years, senator and presidential hopeful Amy Klobuchar eagerly took credit for sending 16-year-old Myon Burrell to prison for a notorious 2002 murder, using the case to further her political ambitions. But after recent media reports exposed the prosecution’s flaws—and the fact that Burrell is most likely innocent—she has distanced herself from the case, minimizing her role and refusing to take blame for that which she long sought praise.
In 2003, Klobuchar, then the top prosecutor in Hennepin County, Minnesota, oversaw Burrell’s prosecution for the murder of 11-year-old Tyesha Edwards, killed when a stray bullet hit her in the chest as she did homework at her dining room table. Police and prosecutors alleged that Burrell fired the fatal shot while shooting at an alleged gang rival.
The case played on panic around gangs and the racist fear of “super predator” children unleashing violence in American communities, and it gave Klobuchar a chance to make good on a campaign pledge: “The response to violent crime must be particularly swift in juvenile cases,” she said as a candidate for county attorney. “We must send a tough message.” After a jury trial, Burrell was convicted of first-degree murder and sentenced to life. Now 33, Burrell continues to maintain his innocence.
Burrell’s case is now a major story in the presidential race after an Associated Press investigation, published days before the Iowa caucuses, revealed how police and prosecutors ignored evidence of Burrell’s innocence and used dubious tactics to get a conviction. In Minnesota, civil rights activists and local African American leaders called on Klobuchar to “immediately suspend her campaign for president, given her role in sending an innocent Black teenager to prison for life,” and she has faced repeated questions about the case during media appearances.
The new scrutiny of the case marks a dramatic turn for Klobuchar, who had leveraged Burrell’s conviction as a valuable political asset, using it to demonstrate that she’s committed to racial justice, a tough-on-crime prosecutor who is no less tough when the victim is an 11-year-old Black girl. Klobuchar has cited the Burrell case in speeches, interviews, and debates, including last fall in a September Democratic primary debate and then in a Washington Post interview. In 2006, Tyesha Edwards’s mother appeared in a TV ad for Klobuchar’s Senate campaign, saying “when our little girl Tyesha was murdered, Amy saw to it that those gang members were put away.”
Today, Klobuchar uses talking points to distract and deflect from her role in prosecuting Burrell, minimizing the moral consequences of sending a most likely innocent teenager to prison and laying blame elsewhere. She recites the horrific facts of the case and the Edwards family’s demand for justice, as though either is at issue. She emphasizes that Burrell was convicted twice, with the second trial coming after she left the county attorney’s office. And she has also called for “the past evidence” and any “new evidence” to be reviewed. “I didn’t know about this new evidence until I saw the [AP] report,” Klobuchar told Chris Wallace two weeks ago on “Fox News Sunday.” “I couldn’t have. I haven’t been in the office for 12 years.” Klobuchar echoed these points during her appearance Sunday on “ABC This Week,” saying that she wasn’t aware of “the new information until this latest investigation and it must be reviewed immediately.”
None of her explanations address her office’s myopic pursuit of Burrell’s conviction, and they certainly do not apologize for it. Klobuchar’s emphasis that she was only in charge for Burrell’s first of two trials is more incriminating than convincing. It was his first conviction that the Minnesota Supreme Court reversed in a 2005 decision that was highly critical of the prosecution’s case. And that excuse elides Klobuchar’s promise to bring a second prosecution after that decision came down: “We are fully committed to moving forward and bringing justice—again—to Tyesha’s family,” she said at the time.
But the problems with Burrell’s prosecution have little to do with “new evidence.” On Feb. 3, the Associated Press noted many of the evidentiary flaws known at the time of Burrell’s first trial: the lone eyewitness was a teen rival of Burrell’s who gave conflicting accounts; no gun was found and no fingerprints, DNA, or other physical evidence linked Burrell to the murder; the police offered witnesses cash in exchange for names and failed to investigate Burrell’s alibi; and Burrell’s two co-defendants, Ike Tyson and Hans Williams, said he was not even at the scene. In addition, police interrogated the 16-year-old Burrell for hours, refusing his repeated pleas to speak with his mother and lying about the evidence they had gathered against him—coercive tactics that led the state Supreme Court to find that Burrell had not voluntarily agreed to speak with investigators and rendered video of the interrogation inadmissible.
As Derrick Johnson, president and CEO of the NAACP said in a statement, this “lack of evidence and conflicting accounts of what transpired” should have been “reason enough for [Burrell] to not be charged” in the first place.
So how did prosecutors get a guilty verdict?
In its 2005 decision that reversed Burrell’s conviction, the state Supreme Court described several questionable tactics—including the use of questionable expert testimony—that Hennepin County prosecutors used to bootstrap the lack of evidence and shoddy investigation.
Most damning, perhaps, is that prosecutors ignored statements from Burrell’s co-defendants that he hadn’t been with them, and then worked to keep those statements from the jury. As the Associated Press reported, “soon after the shooting,” Tyson “was telling friends, his attorney, fellow inmates and even a prison guard that Burrell was not at the scene.” And the criminal complaint against all three includes Tyson’s statement that “he shot the gun several times,” a critical admission when combined with the fact that police had recovered one set of shells fired from the same gun. Williams had also “told his attorney that Burrell was not involved in the shooting,” according to the state Supreme Court’s 2005 opinion.
Tyson and Williams each pleaded guilty to second-degree murder for Tyesha’s killing. To do so, they had to recant previous statements that exonerated Burrell, but prosecutors did not require them to testify. The state Supreme Court found this suspicious, especially as to Tyson, who pleaded guilty before Burrell went to trial. “It appears that the state conditioned Tyson’s plea on his agreeing not to testify about prior contradictory statements he had made about whether Burrell was the shooter,” the court wrote. “Typically, pleas are conditioned on a codefendant agreeing to testify, not to keep quiet.”
Instead of hearing from Tyson and Williams in court, where they could have been cross-examined, jurors watched the video of Burrell’s interrogation in which police mischaracterized their statements as part of a failed attempt to trick Burrell into confessing. The state Supreme Court reversed Burrell’s conviction for this very reason, writing that “the jurors may well have gone to the jury room believing that both Tyson and Williams had identified Burrell by name as being involved, and that Tyson had ‘blamed’ Burrell for the shooting.”
Prosecutors also objected to witnesses who were incarcerated at the Hennepin County jail with Tyson and heard him admit to the shooting or say that Burrell wasn’t there. They were too unreliable, the prosecution said. Indeed, jailhouse informants are a leading cause of wrongful convictions; in Maryland, a state senator is sponsoring legislation that would force prosecutors to disclose information about jailhouse informants before they testify. But that didn’t stop prosecutors from calling their own jailhouse informant, James Turner, who was paranoid schizophrenic and testified that “sometimes I hear voices.” Turner said that Burrell admitted in jail to being the shooter. The state then called a forensic psychiatrist who concluded that Turner was being “truthful”—testimony the Supreme Court later admonished as “improper” and “prejudicial.”
Finally, prosecutors used a controversial “gang expert”—an officer from the Minnesota Gang Strike Force—who “testified about Minneapolis gangs, Burrell’s purported gang affiliation, and the 10-point criteria Minnesota police use to determine gang affiliation” to show that the shooting was done for the benefit of a gang.
Gang expert testimony is notoriously unreliable and inflammatory; it gives a veneer of expertise to what is often little more than an officer’s own biases and skewed observations, invites racial profiling, and improperly suggests guilt by association. In several cases, the Minnesota Supreme Court has criticized the use of such testimony, citing commentary that gang membership “criteria” are “invariably overbroad,” have “potential for abuse,” and amount to “little more than licenses to arrest or control youths in the absence of any articulable suspicion.” A Santa Clara Law Review article cited by the court explains that “there is no way for an individual officer to become qualified to render [a gang] expert opinion, because there is no reliable, generally accepted body of knowledge upon which the opinion may rest,” and in any case such opinions are often based on inadmissible hearsay. After reviewing the gang expert testimony used against Burrell, the court said that “much of [it] was precisely the type of testimony we criticized” before.
Just before Burrell’s second trial, Hennepin County Attorney Mike Freeman, who took over from Klobuchar in 2007, attempted to have a judge removed from the case because, according to prosecutors, the judge said they had insufficient evidence and should drop the charges. The state Supreme Court rejected Freeman’s argument and in March 2008, Burrell’s second trial began. This time, Burrell was tried before a judge instead of a jury and Burrell’s co-defendants testified. Tyson testified that he—not Burrell—was the actual shooter, an admission he later repeated to the Associated Press. Even though Williams testified that Burrell wasn’t at the scene, the same judge that the state fought to remove convicted Burrell anyway.
Today, the jury foreman from Burrell’s first trial regrets convicting him and said that he feels jurors were “misled,” according to the Associated Press. Given the state Supreme Court’s account of what prosecutors presented, it’s not hard to see why. To the extent there is “new evidence” of Burrell’s innocence today, it is in part because prosecutors ignored it or fought to keep it out back then. It is true that, as county attorney, Klobuchar did not handle day-to-day decisions in the case or present evidence in court. But she was in charge. She could have placed the truth ahead of political ambition, and ensured that such a weak, deeply flawed case never moved forward. Instead, even after Burrell’s first conviction was thrown out in 2005, Klobuchar resolved to put him away.
The encouraging news is that prosecutors and other officials now face increased criticism for their roles in driving mass incarceration and the devastating harm they’ve inflicted disproportionately upon people of color and young Black men like Myon Burrell. Klobuchar’s tough-on-crime record met scrutiny early in her candidacy. Senator Kamala Harris, before suspending her presidential campaign, faced backlash for calling herself a “progressive prosecutor” when her record showed otherwise. Joe Biden has had to answer for helping write the 1994 crime bill, a contributor to over incarceration. And Mike Bloomberg met swift rebuke last week after audio surfaced of him defending racist “stop and frisk” policing.
This contributes to greater awareness that prosecutors are not inherently virtuous, that some cheat and cut corners and even break the law in pursuit of convictions at any cost. Whether Klobuchar, a self-branded moderate who has largely embraced her tough-on-crime image, is forced to relent and meaningfully address Burrell’s case will be a sign of how far we’ve come.
Kyle C. Barry is senior legal counsel for The Justice Collaborative.