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A Freeborn County District Court judge has declared a mistrial in the case against the former Albert Lea High School counselor accused of criminal sexual conduct with a student.

The mistrial came after information emerged about evidence that had not been disclosed to either the prosecution or defense during testimony of former Albert Lea Police Detective Julie Kohl.

Kohl conducted an interview of the student the day after the allegations came to light and also investigated other elements of the case.

Kohl testified Thursday morning that she was not able to use Cellebrite, a tool used by law enforcement to extract and review digital data, on former counselor Richard John Polley’s phone, as iPhones are typically more difficult to access.

Defense lawyer Patrick Cotter then asked Kohl during cross examination if a forensic review had been done on the student’s phone, to which Kohl said she had conducted the analysis.

After District Court Judge Christy Hormann dismissed the jury from the courtroom, Cotter said he was unaware that a Cellebrite report had been done on the student’s phone and argued it was a material violation to not disclose this to the defense.

The student had stated in her earlier testimony that she had not only journaled events surrounding her relationship with Polley on her phone but that she had also sent him nude photographs. Cotter said not receiving a full disclosure of the contents of the student’s phone was central to the case and that the case rested upon the word of the girl, who was 16 at the time of the alleged sexual encounter in January 2022, and these pieces of evidence.

Cotter said he thought the violation was serious enough to warrant a dismissal of the case, though he was not asserting that it was intentional.

“It was extremely pertinent evidence,” he said, noting it would shed light on if, how, where and when the communication with Polley occurred.

He said not having this prejudiced his client.

Assistant Freeborn County Attorney Abigail Ehret after a break confirmed with law enforcement that there had been an analysis done on the phone but said she had no memory that it existed or that she ever received it. She said she had turned over everything to the defense that she she received from law enforcement and that it was not her intent to ever hide any evidence.

She said she also reviewed Kohl’s reports and did not see any mention of the analysis being done.

She suggested a mistrial so that both the prosecution and the defense could review the analysis. Redactions would be made by law enforcement of any potential nude photographs.

Hormann said without the Cellebrite report it was difficult for her to make a conclusion that the evidence would be either exculpatory or impeaching and that she could not assess whether the evidence would be material or have an outcome on the trial.

While she did not find prosecutorial misconduct, Hormann said there was a clear discovery violation and for whatever reason law enforcement did not document or turn over the report.

She said the defense attorney is not able to adequately prepare his client’s defense if he does not have all of the evidence and said she thought there had been prejudice done to the defendant on more than one level — not only in his ability to adequately prepare his defense, but also having already gone four days into the trial.

“These types of things need to be caught sooner,” she said, noting that Kohl had “messed up” and that there may be implications of that finding down the road.

Polley, 35, faces one count of third-degree criminal sexual conduct involving penetration of an individual under 18 from a prohibited occupational relationship.

With the mistrial granted, Hormann said she would release the current jurors. The case could be brought back for a new trial in the future.