Wednesday, March 04, 2015

Let's punish people for crimes they didn't commit!

In yet another stupid decision, the Minnesota Court of Appeals has once again confirmed that DWIs are the actual worst crime possible. In fact, they are so horrible, the state is allowed to punish you EVEN IF YOU DIDN'T COMMIT A DWI. That's according to Dornbush v. Commissioner of Public Safety.

Let's review pertinent info before discussing the details of the case. In MN, there are differing ways to commit a DWI. One of those is being under the influence of a controlled substance. Even if it's legal, like Vicodin that your doctor prescribed, if it makes you too loopy to drive, you can get a DWI. Another way to get a DWI is by having any amount of a schedule 1 or 2 drug in your system, regardless of whether it affects your ability to drive. Just the presence of that drug in your system is enough to convict you of a DWI. Schedule 1 drugs are illegal drugs: cocaine, heroin, meth, etc. Schedule 2 drugs are legal, but considered by the medical community yo be highly addictive & have a high chance of being abused. This includes drugs like Adderall & morphine, etc. So, under this type of DWI, I am committing a DWI every time I drive, bc I take Adderall for my hyoersomnia. The fact that it actually makes me a better, safer driver (because I'm not going to fall asleep at the wheel) doesn't necessarily matter since the law requires only that the drug be in your system.

However, there is a defense available to that particular type of DWI, if you are legally prescribed the drug that is in your system. If so, then you are not guilty of a DWI just for having the drug in your system. Good news for those of us who need to take Schedule 2 medication and still be able to drive.

Also important to know is that the Department of Public Safety will revoke your license if you have a positive test for drugs or alcohol after a DWI arrest. That will happen before the criminal case is settled. It happens fast.

So, in the Dornbush case, the defendant was pulled over for a DWI & charged w/ having any amount of a schedule 1 or 2 in his system. He got his license taken away by the Department of Public Safety, as is the normal course of business with DWI cases. He eventually was able to show that the defense of taking the drug pursuant to a doctor's orders applied to him & the criminal case went away. Then he goes to the Department of Public Safety & says, "Hey, look, I shouldn't have had my license taken away, bc I didn't actually break the law. I was taking the medication as my doctor instructed, which means I didn't commit a DWI. So, can I have my license back please?" To which the Department of Public Safety responded, "No, you cannot have it back."

So, he appealed the decision to revoke his license. The license revocation is supposed to be an administrative penalty for having broken the law. Since he didn't break the law, he shouldn't be punished. Makes sense, right?

Well, no, not according to the MN Court of Appeals. They agreed with the Department of Public Safety, that he could not get his license back. Why? Because the defense that you are taking medication as prescribed by your doctor only applies to the criminal charge, not to the license revocation since that's considered a civil matter. Since the legislature didn't include it as a defense for the administrative revocation penalty, it doesn't apply. Sucks to be you, defendant who didn't actually commit any crime, because you're going to be treated the same as if you did!

The Court talked a lot about how this was an administrative penalty & that the license revocation proceedings are separate from the criminal stuff so the defense can't possibly apply unless the statute were to specifically include it as a defense to having your license revoked. But this argument/line of reasoning falls flat on its face. In Minnesota, if you have a prior DWI conviction or drug or alcohol related loss of license on your driving record, drug or alcohol related loss of license on your driving record, and you get charged w/ a DWI, it automatically jumps from a misdemeanor to a gross misdemeanor, because you're a "repeat offender" who needs to be punished more severely than a first-timer. Did you catch that? It's a conviction or losing your license for drugs or alcohol.

Which means that Dornbush, who has not committed any crime under the law, will be considered a repeat offender if he ever actually does get a DWI. He will be looking at more serious consequences that are reserved for people who have already had one DWI in the past & who apparently didn't get it the first time. He will be subject to forfeiture of his car & impoundment of his license plates. And he'll be required to do jail time that is reserved for repeat drunk drivers, despite not ever having been convicted of a prior DWI!

The Draconian ruling in this opinion kills me. The Court once again doesn't seem to care if DWI laws result in unfair or absurd outcomes or if we end up punishing people for crimes they didn't commit. As long as we can punish people, guilty or not!, for DWIs, that's all that matters. The Court completely ignored the issue with the loss of license causing the person to be facing more serious charges despite never having been convicted & having a valid medical defense.  

Given that I take Adderall as prescribed every day, I find this ruling more than just a bit troubling. I'm now terrified that I could lose my license if I'm ever pulled over. It's so stupid & nonsensical it makes my brain hurt. I don't understand how they reach their decision, because this one makes no sense. It's actually now punishing people who haven't committed a crime.

Punishing. People. Who. Have. Not. Committed. A. Crime.

Just let that sink in for a bit.

Thursday, February 19, 2015

Quick updates

So, Guÿ bought me a Kinect for my Xbox for Valentine's day, which is awesome bc I've wanted one for awhile. And then, since I now have the Kinect, I got a dancing game called Dance Central & I'm obsessed. I LOVE dancing & I love learning choreographed dances, so this game is perfect for me. Plus, I'm pretty sure it counts as my daily exercise requirement, since I do it like every day for an hour or more. Seriously, I'm obsessed!! So much fun!

Also, a friend of mine does amazing artwork & also is an actress, so everyone should check out her website at www.jensiarts.com. She's incredibly talented, so please go check her out!

Wednesday, February 11, 2015

We'll find any way to get around that pesky 4th Amendment

So, remember back in March when I discussed a recent MN Court of Appeals case, State v. Bernard? And I was super incensed by how ridiculous it was and how it managed to completely destroy the entire 200+ years of 4th Amendment jurisprudence?  Well, it was appealed to the MN Supreme Court, which was exactly what everyone expected would happen.  And today, the MN Supreme Court made a decision on that case, which is still way off-base in my opinion, but at least it did not completely decimate the 4th Amendment the way the Court of Appeals' decision had done. 

It's still a decision that doesn't seem to grasp how the exceptions to the 4th Amendment work and still comes out with the wrong holding. And makes bad law that doesn't make sense with other laws already in place and established for a long time. 

So, as usual, let's review this case with swear words and colorful language:

Wednesday, January 28, 2015

Not Guilty! My favorite words!

I was in trial this week on a difficult case. The charge was one of those where just the charge itself is bad & people assume being charged is bad enough. It was a very tough case w/ difficult facts to work with & even more difficult bc I honestly believed my client was innocent. And those are the hardest to defend bc the pressure to be successful is so high.

This was a commit to prison case, meaning if he were convicted, he'd have had to go to prison, no probation. And it was a long sentence: 91 months. My client had a lot at stake going into trial. And I was so nervous I was shaking at last Friday's pretrial motion hearing.

We started on Monday & wrapped up today. Jury went out at 11:50 a.m. They had a verdict by 1:25 p.m.

My heart sank. That felt too fast to be good for my client. They felt like it was going to be a guilty verdict & I was going to be devastated & my client was going to be beside himself.

The verdict was not guilty. I gasped audibly in shock & joy. So did my client. I grabbed his shoulder, he grabbed mine, and he said softly, "Thank you so much. Thank you."

My client had been in jail since his arrest. He was released after the verdict. He had to go back to the jail to be booked out, but this time, the transport bailiff didn't have to hand & leg cuff him. My client was a free man. My client finally got to go home & get his life back & see his son again.

There is no way to describe the feeling of getting a not guilty verdict. It's relief and joy and excitement and vindication and satisfaction and tons of other emotions all at once. Getting a not guilty that saves someone from prison, that adds even more to the emotional overload.

Seeing your client finally walk out w/o handcuffs and knowing I'd helped to set him free...it's an experience like nothing I can ever explain. It's powerful & overwhelming & humbling all at the same time.

Days like this make it all worthwhile.

Friday, January 23, 2015

Here we go again

So, I had two trials right before I went on vacation last month. I lost both. I had to prepare for 4 trials but only 2 actually went. So it was an exhausting month. I finished my last trial two days before I went on vacation. A much needed vacation by the time it rolled around.

I came back from vacation on January 6th. And today I start another trial. A really serious trial that's going to be a lot of work this week.

Next week, I'm scheduled for another serious trial, as well.

I'm already exhausted & the stress from this first trial is going to eat me alive. And then I have to also try to prepare the other case for trial while simultaneously being in trial on this case. There should be a rule that you can't be in trials back to back. It's too hard & too exhausting. Not to mention nothing else gets done on your other cases.

So, I went from rarely having trials in 2013 & most of 2014, to having prepped for 6 trials in 2 months & actually going to trial on at least 3 and if next week's case doesn't settle, 4 trials in 2 months. That's a lot of trials.

I'm already tired from this week & it hasn't even started.

Tuesday, December 02, 2014

Lions & tigers & trial prep, oh my!

It's going to be a busy December based on the current outlook at work. I've got my usual 2 weeks off at the end of the year, but before then, I've got a lot of stuff to do.

I was supposed to be in trial this week but that fell through yesterday morning. I've got another trial next week where the current offer is plead as charged (which isn't an offer at all) but the prosecutor is willing to consider a counter offer. But it's currently still up for trial next week which means I need to act like it's on for trial.

Then I have 3 trials after that the following week. 2 very serious felonies & 1 gross misdemeanor. One is for a client who is in custody. So the pressure is on to be ready on those files, as well. And that's a lot of trial work in the next few weeks.

Head down, game face on.

Thursday, November 27, 2014

The problem w/ Ferguson & the failure to indict.

Let's talk about Ferguson. I know, I know, it's been discussed at length in various formats. The racial aspect of the whole situation is obvious & has been a catalyst for an overall reflection on the way we as a society still view non-whites.

But, let's set aside the racial element for a minute & look at why the failure to indict Darren Wilson was incorrect from a purely legal standpoint. Let's strip it down to the basic, legal components & analyze. Other commentators have done better at discussing the racial divide that Ferguson has brought clearly into focus so I will leave that to those who can discuss that more eloquently than me. Tonight, we will just talk about the problems with the lack of indictment based on the legal framework.

First, it's important to understand what a grand jury actually is & what its purpose is. A grand jury is not a fact finding jury. They aren't there to determine what happened, what the verdict should be, etc. Instead, the grand jury takes on the role of the prosecution, to review the evidence collected by police to determine if there is probable cause for a charge.

There are various standards in the legal world for suspicion of criminal activity. Here's the run down:

Beyond a reasonable doubt: required to convict someone at trial. This is the highest standard in court. In order to convict, there must be no other reasonable explanations for was happened other than the defendant committed the offense.

Clear & convincing: this is a lower standard than beyond a reasonable doubt but does require the state to prove its claims. The evidence they present has to be clear & convincing that the defendant is guilty. In MN, this is the standard for probation violation hrgs.

Preponderance of the evidence: a step below clear & convincing. Common in civil cases. Basically, if the evidence is 51% in favor of the state, this standard has been met.

Probable cause: an even lower standard. Requires that there be at least some evidence tying the defendant to the allegations. Generally, this doesn't require much in the way of evidence. They only need to have something. It doesn't require the evidence be credible or reliable, just that it exists.

Reasonable, articulable suspicion: one step above a hunch. There has to be something that can be used to support the suspicion, it can't just be a gut feeling or something like that. But it doesn't have to be real strong or compelling. If you have a hunch & can throw out a couple of reasons why you have that hunch, you've likely met this standard. This is used by police to justify searches/seizures.

So, probable cause is one of the lowest standards in the criminal world. It doesn't take a lot to get to probable cause.

When a complaint is charged, there is a statement of probable cause that outlines the state's best evidence. It's not all the evidence, it's the evidence that the state thinks is most helpful to show there's probable cause. And while defendants can challenge probable cause for a charge, it's hard to win bc it's not a high standard to meet. Basically, the only way defendants win is if there is absolutely no evidence of the defendant committing the crime. And not "no evidence" as in "we're disagreeing with the state's evidence bc it's so weak." It means "no evidence" as in there are elements of the crime that they actually can't provide any evidence for. An example of this would be a complaint I had a few years ago that charged my client with possession of marijuana. The complaint stated that my client had been arrested on a warrant & when searched at the jail, they found cocaine on him. No marijuana was ever mentioned in the complaint, other than in the charge. This is a prime example of "no evidence." The charge lacked probable cause bc there was no evidence of possession of marijuana. Now, in this case, the state just had to adjust the charge to the right charge for the cocaine but that is what I mean by "no evidence." Literally, no evidence.

If there is a dispute about evidence, then it's enough to get probable cause. It's a trial jury's role to sift through the evidence & decide what happened. In contrast, a grand jury stands in the place of the prosecutor to decide whether there's probable cause for a charge.

So, now that we are all on the same page, let's peek at the problem w/ the Ferguson grand jury.

The problem is that there WAS a dispute about evidence. There WAS a conflict btwn the various witnesses' testimonies. There WAS evidence that could be used to indict Wilson. There was also evidence that could show Wilson was acting in self-defense. The problem is that a fact-finding jury will never get to review all the evidence, subjected to cross-examination, and make a determination about the disputed facts. And that is what a trial jury is supposed to do when there are facts in dispute.

The grand jury in this case went beyond what it should have done, weighing the credibility of witnesses & reaching a conclusion about the facts. Instead, it should have limited its review to whether there was probable cause, not whether there was a self-defense claim or which witnesses to believe. That's not the role of a grand jury.

The prosecutors threw this grand jury proceeding to fit a social demand. The prosecutors could have easily gotten the indictment if they had really wanted it. They could have presented only evidence that was favorable to getting an indictment, just like most prosecuters do when they file a complaint. They could have easily gotten that indictment but they didn't want to. And that's the problem. They wanted to protect a cop, rather than making him explain his actions in court & allowing the facts to come out under cross-exam & allowing a trial jury to decide.

The most troubling thing for me is that Ferguson shows that, no matter what side they may be on, the police always win. The government gets its way. The government can actually kill us w/o repercussion now, because we don't make them answer for their actions & we don't hold them accountable when they go too far. And that's truly terrifying.

Wednesday, October 08, 2014

Once again, let's review "judicial activism."

Ted Cruz is a moron. He released a press statement this week regarding the US Supreme Court's determination that it would not hear any of the cases involving gay marriage and in that press release, he called the Court's determination "judicial activism at its worst."

Please. Please stop. You're making my head hurt. 

Judicial activism actually means something. It has a real, legitimate, actual meaning. And that meaning isn't "I don't agree with them." 

In order for a court to be considered "activist," the court must do something. It must act. Weird, huh? It must make a decision on a case. 

The Supreme Court did exactly the opposite of that. It did nothing. Nothing at all. Not one damn thing. Therefore, it cannot be considered "judicial activism" because the Court won't hear the gay marriage cases. 

Here's how judicial activism looks in real life: