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: 

Wednesday, September 17, 2014

The Adrian Peterson situation and the problem with prejudging

So, as basically everyone has heard, Vikings football player Adrian Peterson has been indicted by a Texas grand jury on child abuse charges. Initially, he was deactivated from the team & prevented from playing in one game this past Sunday; the team owners then reactivated him to play on Mondaywhile the criminal case worked its way through the court system. The Radisson pulled its sponsorship of the entire Vikings team as a result of the indictment. Nike & Wheaties also severed ties with Peterson. On Tuesday, Minnesota Governor Mark Dayton weighed in on the situation, calling Peterson's alleged actions "a public embarrassment" & while providing lip service to the idea of innocent until proven guilty, said that the Vikings should have continued Peterson's suspension until the court case was finished. Senator Al Franken also called for Peterson's suspension to be reinstated. Finally, on Wednesday, the Vikings reversed course under the media & political pressure & placed Peterson on the exempt list, meaning he must stay away from the team.

This is all the result of an accusation. Not a conviction. Not a verdict of guilty or an admission of committing a crime. An accusation.

Tuesday, August 26, 2014


So, last week I was on vacation and on Friday, I was on a horseback ride and  I managed to fall off the horse during the ride and I really injured myself.  I had had concerns during the ride that the saddle was too loose, but I pushed them aside and thought that they were the professionals and they knew how to saddle a horse.  Technically, so do I, as I had a horseback riding class in college, but it's been awhile since I've actually had to saddle a horse, so I deferred to the stablehand's judgment on the saddle. But I did think it was a bit loose. 

Turns out, it was.  During our final canter towards the stable, my horse veered left suddenly because a flock of birds took flight from the ground close by us and spooked the horse.  The horse went left sharply, my saddle twisted to the right side, and BAM, down on the ground I went. I landed and rolled a few times in the dirt on the trail. 

Tuesday, July 22, 2014


Today I was talking to a friend of mine who is also a public defender in a different area than me. She said she had been talking to the state public defender about me.

The way the public defense system is set up is that there are 10 judicial districts in the state. Each district has a chief public defender, so 10 chiefs (actually 11 if you include the appellate office). The chief hires assistant public defenders to cover cases w/in that district.

Above the chiefs, there is the state public defender. That is the top position w/in the public defense system. The state PD is the head honcho.  I have only met him a couple of times in the entire time I have been in public defense, including when I was an intern. I know him bc he was a chief before he was the state PD & everyone knows the names of the chiefs. But I have never had a conversation w/ him.

So, my friend was talking to him about me & he said to her that he had heard my name before & had heard good things about me. He said, "She's got a good reputation, doesn't she." My friend told me this today & I was floored.

I'm just a line attorney in some middle of nowhere land, doing my job. I haven't made the news for any big cases or taken down some poorly-run crime lab or represented some high profile case. I wouldn't expect the state PD to have any idea who I am, let alone have heard specific opinions about me.

I think it's really neat that he knows about me & that my reputation is a good one. I am just surprised that I even have a reputation in the legal field beyond my little area of the state.

Wednesday, July 02, 2014

So much Supreme Court to discuss this week!

So. It's been a big week or so in Legal Nerd Land. The Supreme Court has recently issued two high-profile cases that have attracted a lot of attention.  

The first one to be released was Riley v. California, which I previously mentioned when it was granted cert. It was a case about whether or not police need a warrant to search your cell phone when you've been arrested.  The Supreme Court unanimously decided that police did need a warrant.

Here's the sitch: 

Monday, June 23, 2014

The predatory offender law is out of control

So I have discussed previously how ridiculous the predatory offender law is. Today I learned something new about it that makes it even more ridiculous to the point of becoming completely useless.

The law requires a person register for a certain set of crimes, as well as any offense "arising out of the same set of circumstances." So if you've been charged w/ a registration offense & a non-registration offense for things that occurred @ the same time & you plead top the non-registration offense, you still have to register. That's stupid enough on its own. But the stupidity doesn't stop there.

I stumbled onto a case today while doing legal research. Oftentimes, we ask prosecutors to dismiss the original complaint w/ the registration offense & recharge a new complaint w/o that offense as part of a plea agreement. Apparently that's no guarantee the defendant won't have to register.

The case I found, Gunderson v. Hvass, involved just that type of agreement. The evidence of the alleged sex offense didn't exist. The sex assault kit showed no semen, for example. So the prosecutor dismissed the original complaint & recharged just an assault, per a plea agreement, & the defendant pled to that.

A bit later, The Man comes along & informs him he has to register for that dismissed complaint. What??

The court held that the law requires that the person register for any conviction for a registration offense, and any offense arising out of that same set of circumstances, but it isn't required that they be charged in the same complaint.

*bangs head*

Ok this has gotten out of control. If a prosecutor charges something based on the initial information  & later determines that there isn't evidence to support that charge, so they dismiss & recharge something more appropriate, the person still has to register. So now we have people who have not committed a registration offense being required to register based on an erroneous charging decision. That's probably who the general public is concerned about. I know I want the government keeping tabs on people who shouldn't be required to register.

What in the actual fuck is the point of a "predatory offender" registration if it is just a list of people who were charged w/ things but never convicted of those things? Isn't the point of the stupid thing to know where PREDATORY people are so we aren't @ risk? When everyone is on the list, it completely negates the usefulness of such a list.

For a predatory offender law to be useful for the intended purpose, it needs to be limited to include only people who are predatory. This law needs to be seriously overhauled bc right now, it's not doing anyone any good & isn't protecting anyone.

What needs to change? Here's a list of ideas:

1. Juveniles should never have to register, especially for their entire life. It happens. A kid who screws up @ 11 yrs old will be paying the price of his mistakes for the rest of his life.

2. Registration should apply to only those offenses which are truly predatory in nature. That means if you're a teenager who had consensual sex w/ your girlfriend who is 3 yrs younger than you, you don't have to register.

3. Registration should only be required if you're actually convicted of a registration offense. Skip the "arising out of" business. If the prosecutor has the evidence to convict you on the registration offense & does that, fine. But if they plead it out bc of bad evidence or whatever, then you don't have to register.

Start w/ those. Make those changes & start making the predatory offender law actually meaningful in some way.