WOODBURY, MN (WNN) – Attorneys for state Sen. Nicole Mitchell, D-Woodbury, have asked the court to dismiss a count of possessing burglary tools added to her burglary case in February.

“The state’s decision to add a new charge constitutes prosecutorial vindictiveness and violates Nicole’s due process,” the motion filed yesterday states. “Either warrants dismissal of count two.”

Mitchell’s attorneys also asked for an evidentiary hearing where they would call Becker County Attorney Brian McDonald to testify on why the count was added.

They argue adding the second charge gives prosecutors a second bite of the same apple. “The two charges are inextricably intertwined, meaning it’s hard to envision a scenario where Nicole can be guilty of possessing burglary tools but not of committing burglary,” the motion states.

Her attorneys say by filing the second charge prosecutors give jurors “a de facto lesser-included offense.”

“The risk is that the jury may simply give up, play King Solomon, and split the baby – meaning strike a compromise and find Nicole guilty of possession of burglary tools (in their mind the less serious charge) and not guilty of burglary (in their mind the more serious charge),” the court document states.

Her attorneys also point out that being found guilty of the second count would not increase her sentence.

The Minnesota Star Tribune reports that McDonald did not respond to requests for comment on the motion.

After the second count was added, Republicans amended their ethics complaint against Mitchell, who they argue should be expelled from the Senate.

Mitchell’s trial is scheduled for mid-June. It was originally scheduled for January but was moved to follow the legislative session but now that the Legislature faces a special session a conflict could arise.

Mitchell allegedly broke into the home that her late father shared with her stepmother in Detroit Lakes. Mitchell denies the charges.

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