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:

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: 

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.

Minnesota's high court gets it wrong again

I'm a bit late on this, but it's still interesting, so I wanted to touch base on it.  Recently, the Minnesota Supreme Court ruled that the necessity defense does not apply in cases that deal with a person's loss of their driver's license for a DWI. 

It's a case called State v Axelberg and it's a case where the court had a perfectly situated defendant for the necessity defense, but instead of doing justice, the Court did nothing and furthered the injustice of the situation. 

Everyone has the right to bail in Minnesota

Recently, there was an article in the Star Tribune about the ongoing criminal cases involving victims Palagor Jobi and Anarae Schunk.  In the article, it states that "Monty and Mariana Schunk are pushing for changes to the bail and sentencing system for repeated violent offenders.  They have proposed the Anarae Schunk Repeat Violent Offender Bail Law that would deny bail to a person with two prior felony convictions, one of which was a violent crime, when that person is charged with another violent crime involving a gun or other lethal weapon.  They have also proposed an Anarae Schunk Repeat Violent Offender Prosecuting and Sentencing Law that would impose a mandatory life sentence without parole for a person convicted of a third violent crime involving a gun." 

There's much to say about both of these proposed laws, but let's start with the first proposed law for this post.  The one involving bail.  

My boss has always said that if a law is named after a person, it's probably not a good law.  And I've found that to be true.  Usually laws that are named after a person are sledgehammer solutions and are a reaction based on a particular case involving a particular set of circumstances that are terrible, but not common.  Yet, the law catches people in it that it wasn't necessarily intended to initially, because it's not a thought out and rationally debated law.  It's a law based on emotion and terrible circumstances.  

However, this proposed bail law is not only a bad idea, but it's also guaranteed to fail.  Here's why...

MN Court of Appeals says, "If the police COULD get a warrant, then it's totally fine if they don't."

I am so appalled today by the recent MN Court of Appeals decision regarding Test Refusals that I can't even express it in words.  I'm sure I'll have more to say once I've had time to stop beating my head against my desk, but here's today initial reactions to this wrong, wrong, wrong decision. 

The case is State v. Bernard.  It's a published decision, which means that the lower courts (such as the ones I spend all my time working in) are required to follow the holding in the case.  And what was that holding?  Well, here it is: 

"The state is not constitutionally precluded from criminalizing a suspected drunk driver’s refusal to submit to a chemical test under circumstances in which the requesting officer had grounds to have obtained a constitutionally reasonable nonconsensual chemical test by securing and executing a warrant requiring the driver to submit to testing."

Let's pull out the important pieces of that extremely wordy sentence and break it down. "The state is not constitutionally precluded from criminalizing...refusal to submit...under circumstances in which the requesting officer had grounds to have obtained...a warrant." 

Okay. What does that mean, exactly?

Technology moves faster than the law

Lost my trial last week.  I wasn't particularly surprised by the verdict, but of course, I was disappointed.  As always.  Losing sucks, even if it isn't a surprise.  But, it was good to get back into the courtroom to do a trial, since it's been over a year since I've done a jury trial and my last trial (just in front of the judge) was in September of last year.  So, it's been awhile, which made it nice to get back in there and do another trial again.  Can't let my trial skillz get all rusty and out of use. 

In other news, there's some interesting stuff going on in the legal world recently.  The most interesting one, which I'm a bit late to comment on, is that SCOTUS agreed in January to hear two cases regarding the police's ability to search through a cellphone without a warrant when they arrest a suspect.  One case, Riley v. California, involves a smartphone; the other case deals with a flip phone and I think is probably less important in the grand scheme of things than the Riley case, since flip phones will likely not be around for too much longer, but smartphones and/or similar technology will be in the hands of more Americans as we move forward. 

So, let's discuss this case, searches incident to arrests, and why the decision that SCOTUS makes in this case is going to be extremely important for every citizen in the nation. 

Let's talk about sobriety checkpoints

At the request of @RunoftheShipe, today's post will be about sobriety checkpoints.  The request for my piercing insight nonsensical ramblings was due to a recent post by Bob Collins in the 5x8 Newscut blog.  The latest MADD report gives Minnesota an abysmal 2 out of 5 stars on our DWI laws and suggests 2 ways we can--and according to MADD, we should--fix this low rating. 

Thing one: require an ignition interlock device for ALL convicted DWI offenders w/ a BAC of .08 or more. 

Thing two: allow for sobriety checkpoints. 

I could go on and on about thing one and the ridiculousness of mandating ALL defendants convicted of a DWI be required to have an ignition interlock device, but in the interest of addressing the question that was posed to me, I'll stick to just thing two today.  Ignition interlock is a conversation rant for another day. 

So, checkpoints.  What's up with those? 

"Free speech" doesn't mean you can be an asshole without repercussions

Let's play a game I like to call "civics lesson."  This is where we discuss things that the general public should have learned in school in civics class, but apparently either forgot it or never learned it. 

Today's game centers around the First Amendment and specifically, the right to freedom of speech.  As you may have heard, some guy on that stupid show "Duck Dynasty" made some assy remarks about black people and gay people. Then he got suspended from the show. 

First of all, I don't care at all about that show or that guy. That show looks stupid as hell to me and I have less than zero interest in watching it.  The only reason I would even mention it in my blog is because it's caused so many people to say "But the TV network is violating his right to free speech by suspending him!" (I'm looking your way, Sarah Palin...)  Which is 1,000,000% wrong.  And it's driving me a little crazy, so I think we should discuss. 

The U.S. needs a new Constitution like a fish needs a bicycle

Recently, there was an article in The Atlantic about why the U.S. needs a new Constitution. Primarily, the concerns expressed were that the current Constitution is full of holes, promotes gridlock, and is extremely difficult to change. The problem w/ this premise is that the Constitution was designed to do precisely those things; those are not failures on the part of the Constitution, those are the things it was intended to do. 

More about Brooks

So recently, I ended up having a "discussion" on Twitter (if you can ever actually have a real discussion in 140 characters or less) about the Brooks decision, which I previously discussed over here. Because the conversation required more than 140 characters, I said that I'd blog more about it, since goodness knows I love any reason to run my damn mouth about things. 

Drugs are bad. Drug laws are worse.

A Duluth shop owner and two employees are on trial for 50+ felony charges alleging that they sold "synthetic drugs," in violation of federal laws. He is also facing a number of state charges for the same reason. 

He isn't alleged to have been pushing heroin on innocent schoolchildren at the park or anything so dastardly as that.  He's alleged to have sold products that are used to get high but that aren't what people normally think of when they hear "drugs." 

These so called "synthetic drugs" go by a variety of different names. Plant food, bath salts, K2, spice, etc. They are often packaged and sold as a product w/ a legitimate use, for example, plant food or bath salts. Some are sold as potpourri. Almost always, the packaging will have a label somewhere on it that clearly states: Not For Human Consumption.  

Jury verdicts: what do they mean? Zimmerman, etc.

I don't have much to add to the cacophony of opinions on both sides of this George Zimmerman/Trayvon Martin trial. Everything that could be said about it has been said. But this case, along with all the other media-fodder cases, has polarized people.

The problem with this polarization is that there were only so many people who sat inside that courtroom day after day after day, and who heard all the admissible evidence. Yes, Zimmerman's trial was available via live stream, but that doesn't mean that people who weren't on the jury but who watched it via live stream are in a position to give opinions on the justice system as a whole. For one thing, there were discussions on evidence that were heard outside of the presence of the jury. As a practicing attorney, I can safely say that discussions on evidence heard outside of the presence of the jury are discussions about things that, often times, are inappropriate for a jury to hear, as doing so would improperly impact their decision. So, by watching the live stream of the trial or hearing/reading about things that the jury was not privy to, you have already compromised your ability to fairly assess the situation.

Why you should never help police (even when you're innocent)

All too often people willingly give up their rights bc they erroneously believe that those rights only apply to criminals. Let me clarify: they apply to innocent people too and you should guard them jealously. Here is why this is so important...
A. Do not agree to give a DNA sample. Ever. Do not fall for the "rule yourself out" line. If they need to ask for your consent it is likely that they do not have enough to apply for a search warrant. If they do have enough then make them go get one. Think DNA is always correct? Wrong. Those labs are operated by humans who make mistakes. I'm not talking theoretical. Labs have an "unexpected results" log where they keep track of problem results. This includes cross-contamination in the results and sometimes that contamination is the testing scientist's own DNA. This happens more often than people realize. If you give a DNA sample you introduce your DNA into the lab where it may end up mixed with some evidence. And once it's mixed it can't be unmixed. Do not risk it. Make them get a warrant.
B. Crime labs are not perfect. Google "Saint Paul crime lab" for one example of awfulness.
C. Talking to police w/o a lawyer is a bad idea even when you're innocent. Say you were driving your red sedan on Main on Monday by the local Target. You are a white guy with a blue sweatshirt and blond hair. You are stopped by police a day later and they ask where you were on Monday. You did nothing wrong so you tell the police where you were. But you don't know that on Monday a white guy w/ blond hair and a black sweatshirt was reported as robbing the Target of on Main. He drove away in a red car. Oops. Looks like you just made yourself a suspect despite not doing anything. Next thing you know you are in a line-up. Oh and eyewitness identification is really unreliable so you are ID'd by the witness. So don't talk yourself into a bad spot. If police want to talk to you the magic word is "lawyer." Use it.
D. Do not let them search your car, purse, bags, etc. A MN woman was charged w/ drug possession when police found an aspirin in her car. Don't do that to yourself. Again make them get a warrant.
E. If you are in an interrogation room or in a room at the police station you are almost certainly a suspect so don't talk. "Lawyer."
Rights are for everyone. Innocent people should use them and realize they are there to protect them. Do not give them up!

Well that's good to know

Let's say you are mad and decide to choke/strangle someone. Not enough to cause them to black out or suffer any substantial bodily harm. Just a good ol' choking to let out your frustrations with them. And in this scenario, you are in Minnesota.
If you choke a "household or family member" (meaning anyone who you live with, have a kid with, are married to, had a significant sexual or romantic relationship with, etc.) then you will be charged w/ Felony Domestic Assault by Strangulation.
If you choke a stranger, your annoying co-worker, your kid's teacher, your friend, or anyone who isn't a family or household member, you will be charged w/ a Misdemeanor Fifth Degree Assault.
That misdemeanor could be knocked down to a disorderly conduct if it's a first offense. That's pretty much nothing.
So, the lesson here is only strangle friends, co-workers, or total strangers.
Thanks, silly Minnesota laws!

Oh Law & Order: SVU, you're so silly

I love L&O:SVU but sometimes they are so off-base it's silly. This particular episode is ridiculously full of errors it's insanity.
1. Judge sustained an objection for leading on cross-exam. In real life, leading questions are the whole point of cross-exam.
2. Just as the judge in criminal court was about to accept a plea bargain, a lawyer who represented the victim walked in and handed the judge a restraining order from civil court barring the judge from accepting the plea and ordering all the criminal court parties (including the judge) to appear in civil court the next day. Say whaaaaaaaaa? That makes zero sense! For one, it would be an injunction, not a restraining order, or possibly a writ of prohibition, but not a restraining order. For two, what the what? A judge who isn't a higher court judge ordering another judge how to do their job? Not happening.
Oh, silly script writers...maybe ask a lawyer about stuff...