Bazile v. State (2025 ND 128): Defining the Boundaries of “Pattern” Prosecutorial Misconduct, Newly-Discovered Evidence, and Res Judicata in North Dakota Post-Conviction Relief

Introduction

Bazile v. State, 2025 ND 128, is the North Dakota Supreme Court’s latest word on how defendants may—and may not—use subsequent judicial decisions alleging prosecutorial misconduct to obtain collateral relief. The petitioner, Mackenzy Bazile, had been convicted of gross sexual imposition in 2021. After this Court affirmed on direct appeal (State v. Bazile, 2022 ND 59), Bazile brought a post-conviction action claiming that three later opinions (State v. Smith, 2023 ND 82; State v. Massey, 2024 ND 118; and Gaddie v. State, 2024 ND 170) revealed a “pattern” of intentional misconduct by the same prosecutor. He argued that, under State v. Kummer, 481 N.W.2d 437 (N.D. 1992), such a pattern “shocks the conscience” and required a new trial. The district court denied relief and the Supreme Court affirmed.

Summary of the Judgment

The Court held that Bazile’s reliance on the later cases constitutes a claim of “newly discovered evidence” under N.D.C.C. §29-32.1-01(1)(e) and must satisfy the four-part test of N.D.R.Crim.P. 33(a).
Although the later cases were “new” and could not have been discovered earlier, they were not material to the questions decided by the jury (guilt of gross sexual imposition) and, even if admitted, would not probably produce an acquittal. Hence, prongs (3) and (4) failed.
Independently, the Court ruled that the underlying prosecutorial-misconduct claim had been “fully and finally determined” on direct appeal; therefore, res judicata barred re-litigation under §29-32.1-12(1).
The Court declined to recognize a free-standing “Kummer violation” as an independent statutory ground for post-conviction relief.

Analysis

1. Precedents Cited and Their Influence

State v. Kummer, 481 N.W.2d 437 (N.D. 1992) – Addressed police entrapment and held that governmental conduct must meet “commonly accepted standards of decency.” – Bazile relied on Kummer to argue the prosecutor’s acts were comparably outrageous; the Court distinguished Kummer as involving creation of the crime itself, not a single improper trial question.
State v. Smith (2023), Massey (2024) & Gaddie (2024) – Each involved misconduct findings against the same prosecutor; Bazile characterized them as “new evidence.” – The Court acknowledged their temporal novelty but rejected their materiality to Bazile’s guilt.
Lyons v. State, 2024 ND 19; O’Neal v. State, 2023 ND 109 – Provide the four-prong test for newly discovered evidence. Lyons was used by the district court, and O’Neal reaffirmed the abuse-of-discretion standard.
City of Grand Forks v. Ramstad, 2003 ND 41 – Discussed systemic misconduct possibly justifying reversal even when prejudice is only “potential.” The district court hinted it would not apply here because the improper question was unlikely to recur on retrial.

2. The Court’s Legal Reasoning

The Supreme Court’s reasoning proceeds in two tracks:

Statutory Confinement of Post-Conviction Relief: Chapter 29-32.1 is the exclusive vehicle for collateral attacks; applicants must fit within enumerated grounds (subsection 1). The Court refused to graft an extra-statutory “Kummer violation” onto the statute.
Application of Rule 33(a) Criteria: • Prongs (1) & (2) — met, because the three opinions post-dated Bazile’s trial. • Prong (3) — failed; the opinions bore on prosecutorial misconduct, not on elements of the charged offense. • Prong (4) — failed; even if a new trial were ordered, the single improper question was unlikely to recur or change the verdict.

Finally, even if Bazile could escape the Rule 33(a) framework, res judicata under §29-32.1-12(1) extinguished the claim; the Court had already found the misconduct harmless on direct review. The Court underscored that intent of the prosecutor (negligent vs. intentional) is not a separate dimension of the prejudice analysis absent authority to the contrary.

3. Potential Impact

Confinement of “Pattern” Arguments: Defendants cannot bootstrap later misconduct opinions into newly discovered evidence unless those opinions go to factual guilt or innocence.
Res Judicata Strengthened: Issues of trial error—including prosecutorial misconduct—decided on appeal are conclusively settled for post-conviction purposes, absent a change in constitutional law made retroactive.
Signal to Trial Courts: A single improper question—curatively instructed—will rarely justify a new trial, even when later decisions cast the prosecutor in a harsher light.
Prosecutorial Accountability Moves Elsewhere: Disciplinary or supervisory processes, not collateral attack, are the place to address repeated misconduct.

Complex Concepts Simplified

Newly Discovered Evidence (Rule 33(a)): Evidence that (1) emerged after trial, (2) wasn’t earlier discoverable with reasonable diligence, (3) is relevant to issues the jury had to decide, and (4) would probably lead to an acquittal.
Res Judicata in Post-Conviction: A doctrine preventing the same parties from re-litigating issues already resolved. North Dakota codifies it in §29-32.1-12(1) for post-conviction cases.
Kummer Violation: Short-hand for governmental creation of a crime (entrapment so extreme it violates due process). It is not a statutory ground for post-conviction relief and is conceptually distinct from run-of-the-mill trial misconduct.
Harmless-Error/Prejudice Analysis: Even if error occurred, reversal is warranted only when the defendant’s substantial rights were affected—i.e., there is a reasonable probability the outcome would have been different absent the error.

Conclusion

Bazile v. State fortifies two pillars of North Dakota post-conviction jurisprudence. First, “newly discovered evidence” must relate to a defendant’s factual guilt, not merely illuminate a prosecutor’s history. Second, res judicata remains a formidable barrier against re-packaging claims lost on direct appeal. While the Court acknowledges systemic concerns where misconduct recurs, it declines to convert those concerns into an automatic ticket to a new trial. Future litigants alleging prosecutorial patterns must therefore seek redress through professional-discipline channels or by demonstrating that the misconduct directly undermined the fact-finding process in their own case.