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.

Summa, summa, summatime

Went to Target Field today for the first time this season. It was a gorgeous day out, perfect for watching a baseball game. We got absolutely destroyed by the Astros. Final score was 14-5. The Astros hit not one, but two grand slams! Unbelievable. But it was still a good time.

I love summertime bc it always seems like life slows down in the summer & people enjoy the moment more. The days are so much longer, too, so it feels like you've got more hours in the day. It's just so laid back & relaxed in the summer, which is nice.

Sometimes people tell me they don't understand how I can be so laid back & not care about things they do. I just think that life will always give everyone something to stress over, to cry about, to be miserable about; there's no need for me to create things to be up in a tizzy about when things are generally pretty good. Summer is a lot the same way. There will always be a winter, when it will be really cold, when the days will have only a couple hours of daylight, etc. But when it's summer, it's important to slow down & enjoy it.

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. 

The Struggle is Real

Here is an example of why it is difficult to be an unmarried, child-free Mormon woman w/ social anxiety.

I was invited to a Saturday morning Easter breakfast by a lady @ church. It was scheduled for 9:30 a.m. After the food, there was an egg hunt for the kids.

Nothing about that appealed to me. A group of people I don't know + being up early on a Saturday + an activity for people w/ kids = a trifecta of things I would never want to be involved in

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...

Everyone thinks we have a ton of cases

Recently, I have been waiting for court & there were officers there for other hrgs & we got to chit-chatting. On two occasions, officers asked me how many cases I had. I said about 150, give or take.
Both times, the officers seemed shocked by how many I have @ one time.
We have so many cases...

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. 

First trial of the year

In trial this week. First one of the year. Game face on!

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? 

This line of reasoning terrifies me a little

So, I've talked before about the McNeely/Brooks decisions on DWI cases in previous posts, here, here, and here.  We've now been in court battling these issues and there are plenty of varied arguments that are being utilized by both the prosecution and the defense to support their positions. 

For the most part, I understand why the prosecutors are going with certain arguments that they are using.  I disagree w/ the application of the legal concepts they are relying on, but I can at least understand the logic that got them to that argument. 

But, I have seen one that has been argued that I find truly mind-boggling.  If I were a prosecutor, I would not be able to argue it because I have such a visceral reaction to it. 

The argument, in sum, is that DWI cases should be considered a "special needs" situation and should be completely exempted from the warrant requirement and the protections of the 4th Amendment. 

If you didn't choke a little right then, you're not understanding the implications that argument has for you and for everyone if it were to prevail. 

A good way to win

I had filed a motion awhile ago to suppress a statement from my client that had been obtained in violation of his Miranda rights. We were scheduled for a hrg today on it. I thought it was basically a slam dunk given the facts of the case.

And apparently so did the prosecutor. He emailed me this morning & said he agreed that my guy was clearly in custody & the officer should have Mirandized my client before questioning him. Since that didn't happen, the prosecutor agreed to stipulate that the statement by my client couldn't be used by the state at trial.

So, I win!! Without even needing to go through the whole process of having a hrg & writing a brief, etc.

It's always a pleasant surprise when the prosecution agrees w/ my legal analysis of a case.

Goodbye, Baby Simon

Simon became even more weak and ill today. I brought him back in to see if they could do anything for him, but they couldn't.  So, I had to make the decision to put him down.  He wasn't in any pain at that point--just so, so tired from his body trying so hard to fight off the disease. But the vet said he was dehydrated & would soon start to be in pain. I didn't want that for him. He was just very sleepy & worn-out right now but still happy and purring and snuggly. If he had to go, I wanted him to be happy when it was time. And the vet said that it was really the best choice for him. 

I'll miss my little baby, even though I only had him for a few months.  He was a sweet, loving little guy and he just stole my heart.  He used to run to the door to greet me when I came home and wanted me to hold him. He was a little lovebug and I am going to miss him like crazy. 

So sad right now

My poor little kitty Simon is sick. The vet thinks he has something called feline infectious peritonitis, or FIP. They are doing a test to confirm that but she said she is 80% certain. FIP is incurable & fatal. Which means my little kitty is dying.

There isn't much they can do other than give him medication to try to slow it down & buy him some time. The vet said he isn't in any pain or discomfort, but he is really worn out bc his body is trying so hard to fight the FIP. He was eating yesterday but hasn't been today, so that is also a concern.

He still recognizes me & purrs when I hold him or pet him. I made him a little bed out of his favorite blanket on my bed so he can sleep right next to me @ night. He has lost all of his silly kitten playfulness & just rests now all day, only moving if he absolutely has to.

I haven't made the decision yet to put him down, on the chance that the test results come back negative for FIP. He could have something else that might be treatable so until we know for certain it's FIP, I don't want to put him down. He is still just a baby at only 10 months.

My heart is breaking. Losing a pet is hard. And watching this baby kitty deteriorate is really hard, especially bc he is the little guy I saved from the outside. At least he got to have love & comfort before he goes. That's my only solace. I can't stop crying. My poor little guy shouldn't have to die.

"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. 

Motivation waning

I have had an absolute bitch of a time lately concentrating at work. I don't know what my deal is but I just cannot seem to focus. I have a ton of things I need to do but getting to everything is impossible. It's feeling super overwhelming & then I start to feel like I won't ever get ahead. Then I have trouble focusing.

It's stupid, because I do good work & I have had some good outcomes lately, so I should be motivated from that. But I feel like I am dragging lately. It's really exhausting. Even w/ the good outcomes recently, I'm still having trouble feeling that same enthusiasm.

Maybe it's the cold, gloomy weather that is starting to bring me down.

In better news, I did win a hrg last week that I didn't think I would. Those wins are some of the best! It was extremely exciting to pull off a big W when I was almost certain I wouldn't, so that made my day last week. And my client was happy too, so that's always a plus.

I have 2 more weeks left of work--this week & next--and then I will be on my annual winter break vacation. Two weeks of hanging out, relaxing, & having nothing to do except what I want. It will be wonderful. Maybe after that, I will feel motivated again. Maybe I just need some time away to recharge my batteries & not have to deal w/ work for a bit.

Pets make the best friends

People like to tease me about being a crazy cat lady & pick on me about recently acquiring a third cat. It's all in good fun & I make fun of myself too, but the truth is that my cats saved my sanity during 2011-2012. As any regular reader knows, that was the darkest, saddest,  loneliest, & most difficult time in my entire life. There were days where I would wake up & wish I had somehow died in my sleep bc the pain was so overwhelming. My home was suddenly the last place I wanted to be bc it reminded me of what I no longer had. And I cried every day for hours.

My friends & family were there for me as much as they could be but of course no one can be w/ someone constantly. But, my kitties were.

I came home to those two guys & they just knew I was sad. Ward let me bury my face in his belly & cry until I had no more tears. Oscar would sit beside me & put his head on me as I cried, the only way he could offer me a hug. My bed was suddenly empty of my companion, but those two curled up w/ me every night. They had never been very much the kind of cats to sleep in bed w/ me before, but they somehow knew I needed the company.

They gave me someone to come home to when I was at my lowest. They gave me constant love when I was in need of it most. They sat w/ me when I cried & never got tired of dealing with my tears. They were just there for me, present w/ me, w/o asking any questions. They loved me wholly & they took care of me the only ways they knew how. They were funny @ times & made me laugh when nothing else could & when I couldn't even remember what my own laugh sounded like anymore. They were the most loyal & dependable & steadfast of friends while I struggled to survive that time.

They loved me & they took care of me, just like a person would do for me. They were my friends just as much as my other, human friends were. They were there with me when no one else could be & when I didn't have the strength to face other people. They saved me from being so lonely I couldn't survive it.

So, yes, I am a crazy cat lady. I am so incredibly grateful to have had them w/ me during that time. I might have fallen completely to pieces w/o their constant companionship. They loved me so completely, so consistently, there is no way I could love them any less completely & consistently. I will always love them to pieces because they pulled me through that dark time.

Anyone who has ever loved a pet will understand how fully they can steal your heart, how pure & trusting their love for you is, & how much they can change your life.

People who don't have a pet or have never had one don't understand that there comes a point where the pet is no longer a pet: it's a friend & it's your family. There is nothing quite like loving an animal who loves you back. It's an amazing connection w/ another living thing.

I love my cats. I will always love them & I will be forever grateful for them. If that makes me crazy, then so be it. But I think anyone who has a pet will understand.

Public defenders: we defend the public

(This is a very long post today, so I will understand if you don't want to read all of it. I have a lot to say on this topic recently, so this got a bit longer than I originally expected it to be. Sorry!)

Public defenders get a bad rap. We are often mistakenly considered poor quality lawyers, inexperienced, not invested in our clients or their cases, in cahoots w/ the prosecution, etc. And on top of the negative stereotypes about public defenders, we also deal w/ the stigma of being a criminal defense attorney, the lawyer who "defends those people" or who gets guilty people off on "technicalities." So, you have to have a thick skin to be a public defender, and to a certain extent, a defense attorney. Because what people don't understand is that our job isn't simply to "defend those people" or get criminals off. Our job is to protect the public from government overreach. Our job is to ensure that things are done right & fairly. Our job is to police the police & to make sure that prosecutors are following the rules. Our job is to prevent the government from having unchecked power & authority. Our job, at its core, is fundamental American ideals in action.

I want to make it clear at the outset that I am not anti-police nor anti-prosecutor. As I have mentioned on several occasions, I know several prosecutors who I consider my friends & I have friends from law school who became prosecutors. I love these guys dearly & I respect the work they do. There obviously needs to be a prosecution sector of the system bc yes, some people do bad things & need to be held accountable. I also have gotten to know many police officers in my work & I think highly of the work they do & of them & we get along very well. They know I have an essential role in the system & they don't take it personally when I challenge things & they do their work in an ethical manner. So, I don't have a problem w/ officers or prosecutors based just on their job titles.

I have a problem w/ the officers who act like cowboys, who flagrantly & routinely violate people's rights, & who refuse to ever consider that maybe they should modify their actions. I have a problem w/ prosecutors who see this behavior in their officers & who don't correct it, who don't explain to the officers why this is not legal & needs to be changed, who proceed on w/ cases that have shoddy police work & obvious rights violations, bc damnit, they need that conviction.

I'm not talking about situations where I think there is an issue & the prosecutor disagrees & there is a legitimate argument to be made for both sides. I'm talking about situations where there is no legitimate argument to be made that the police conduct was permissible & yet, they still proceed w/ it.

I will share a few examples of how it should work, examples that have actually occurred w/ my cases & w/ my prosecutors.

First, a few years ago, when I was just doing misdemeanors, I had several clients on traffic tickets that would tell me that the cop searched their vehicle. In Minnesota, an officer is only allowed to search your vehicle during a traffic stop if they reasonably believe they will find evidence of a crime. So, if you're pulled over for speeding & the officer doesn't observe anything else suspicious, they can't search your car bc there isn't going to be any evidence of speeding in the car. So, I had lots of clients tell me they were getting their cars searched by the cops on cases for driving w/o a license or something like that, where no evidence of the crime would reasonably be found in the car. The problem was, the cops weren't finding anything illegal in the cars, so I couldn't challenge anything in court. When we challenge things in court, we are most often trying to get illegally obtained evidence suppressed. No evidence = nothing to challenge. But I still found this routine car searching to be troubling, so I mentioned it to the prosecutor. He was horrified by this information & wanted me to let him know how often it was happening. I kept track for a bit & reported it to him. He later came to me & said he had taken the info & spoken w/ his officers. He told them they couldn't search cars like they had been & that from now on, he wanted clean searches & seizures. No more random, suspicionless searches.

Second, in Minnesota, there is a law that allows officers to arrest someone for an alleged domestic assault up to 48 hrs after the incident occurs. After that, they would need an arrest warrant. I had a case where the person was arrested w/o a warrant more than 48 hrs after the alleged incident & was interrogated by officers after being arrested. I moved to have his statements suppressed bc the arrest was unlawful. The prosecutor reviewed the statute & the reports & ultimately came to the same conclusion: the arrest was unlawful & the statements shouldn't be allowed in. We ended up not needing to have the court hearing on the issue.

Third, I had a case for aiding an offender. The statute requires that the offender be wanted for a felony offense. My client was charged for allegedly aiding an offender who was wanted for misdemeanor offenses. I caught this, did some research to make sure that was actually what the statute required (it was), & went to the prosecutor & explained what I had found. The prosecutor checked out my research & agreed that the charge was improper, given the facts of this particular case, & dismissed w/o needing a hearing challenging probable cause.

These are examples of good prosecution work & I highly respect all three of those prosecutors. There are certainly situations, more often than not, where there are arguments on both sides & that's why we have a hearing & have a neutral judge decide the issue. But sometimes, things are just blatantly incorrect & shouldn't necessitate a hearing. They shouldn't require anything more than a discussion btwn the two sides to correct the error. Mistakes happen, of course, & they should be corrected when it's easy to see them.

And don't think I don't do the same thing on my side of it! I do. Of course, I don't have a full police force, but I have clients who want me to file motions that have no legal basis or who I have to sit down & explain that, while it might not seem fair to them, the police officers' conduct was lawful & that evidence will come in.

But not all prosecutors are willing to call their officers out on things that are improper. They let them think that evidence was suppressed bc the shady defense attorney made a mountain out of a molehill or the judge was wrong in the ruling or whatever excuse they can find to not correct the improper conduct. And when the police never get told to reign in their unlawful conduct, when it's never their fault that evidence was lost, they never change. And their actions become more & more egregious. They begin to think that whatever they do is fine, especially if it uncovers evidence of a crime. They begin to think that they can do whatever they want. They begin to be cowboys.

Anal probes don't seem beyond the pale for unchecked officers who never get told to reign in their conduct.

Shooting a mentally ill man as he stands there & does nothing, then lying in their police reports to say he came at police in an aggressive/threatening manner is not a problem for officers who think that as long as they use the magic words in the reports, no one will ever question them.

Tasing a man 2 to 3 times & then arresting him for trying to get back into his burning house to rescue his 3-year old step-son isn't problematic for police officers who have the mentality that they can act, tase, or shoot first & ask questions later.

Shooting six rounds & killing an unarmed teenager after his dad called in that the teen had taken the truck & after police dispatch told officers in pursuit to back off the chase is perfectly acceptable to officers who never are called out on the carpet for their actions.

Police officers who are never expected or required to answer for the actions they take begin to think they can do no wrong. They begin to act more & more unlawfully, improperly, &  unnecessarily aggressively. Some good, ethical prosecutors will not let officers get away w/ such outrageous conduct & those prosecutors are fantastic examples of seeking justice. Some officers are ethical & would never intentionally do things in violation of people's rights and wouldn't take extreme, but easier, measures when more moderate, but perhaps more difficult, measures will work.

But, prosecutors rely on police to build their cases by gathering evidence. Prosecutors have a close relationship w/ their officers (as one would expect). And it's not always easy to call someone out that you have to rely on day after day.

So, we are there: the public defenders, the defense attorneys. We are there to police the police. We are there to make that officer come into court & answer questions about what they did & why they did it. We are there to be the ones to call them out & to get unlawfully seized evidence suppressed. My hope is always that, if I am constantly calling the same officers to task over & over & over again, they will start to correct their errors. If I grill them about a report that is woefully thin in detail, perhaps they will start writing more thorough reports. If I question them about an improper pat-search & a ton of important evidence is lost, perhaps they will learn from that mistake & do better searches. Perhaps if they are made to account for their actions, they will act in such a way as to avoid constantly having to face me in court.

Society may hate the defense attorney, and especially the public defender. But, they need us, whether they know it or not. Every battle I have in court on a particular case makes society a little bit safer from unchecked police & state power. Every time a defense attorney makes an officer come to court & have his or her actions scrutinized, every citizen is a little bit more protected from cowboy cops. Every time we square off on one case, we are squaring off for the entire public & standing between the public & absolute government power.

You're welcome, America.

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. 

Newest Member of the Household

So, Simon gets to stay. The vet checked him out, and other than some ear mites, he is in good shape. Nothing that can't be cured. I have to keep him separate from Ward & Hubert for now till the ear mites are gone. And I was able to convince my landlord to let me keep him! So he gets to stay! Woohoo! Although he currently has to live in the bathroom till the ear mites pass. But I let him out every evening to give him a chance to stretch his legs & explore his new home.

He is by far the sweetest kitty ever. And he is still a kitty. The vet said he was maybe about 8 months old. And he is super affectionate & cuddly & would be completely happy if I held him every minute of the day.