Law Day 2016 – Miranda: More than Words

 

Leslie J. Rosenberg

Leslie J. Rosenberg
Minnesota Assistant
Appellate Defender

Once again National Law Day will soon be upon us. Sponsored by the American Bar Association (ABA), this annual event highlights the role of law and justice in our society, while giving attention to the special role of courts in our democracy. Congress designated May 1 as the official date for celebrating Law Day in 1961. This year’s theme, which is Miranda: More than Words highlights the 50th anniversary of the well-known U.S. Supreme Court case, Miranda v. Arizona. The theme explores Miranda rights as they traditionally apply to police interrogation, but also shines light on all the procedural protections afforded by the Constitution, how these rights are safeguarded by the courts, and why the preservation of these principles is essential to our liberty.

Be sure to attend our own upcoming Law Day event, to be held on Wednesday, May 4 in conjunction with the Ramsey County Bar Association.  We will feature a talk by Leslie J. Rosenberg, “The Making of Justice – The Role of Miranda in the ‘Making a Murderer’ Series.” Ms. Rosenberg will explore the origin and meaning behind Miranda case law, and how it gets maneuvered by police and prosecutors. She will highlight the application of Miranda to juvenile defendants, and specifically to the teenaged Brenden Dassey that we all remember from  “Making a Murderer.” (This is a can’t-miss event if you enjoyed the Netflix documentary series.) Besides being an Assistant Appellate Defender with the Minnesota Public Defenders’ Office, Ms. Rosenbeg is also an expert in the field of international juvenile justice, and recently served as a volunteer public defender in China. The event, which is free and open to the public, will take place Wednesday, May 4 in the Training Room of the First National Bank Building. The event will commence at 9:00 a.m., with registration beginning at 8:30. One standard CLE credit is available.  (Teleconference and on-demand available for $10.)

If juvenile justice or Miranda rights are of special interest to you, consider reading one of these books which we have in the library:

  • Kids, Cops, and Confessions: Inside the Interrogation Room by B. Feld (New York University Press 2013)
  • Burning Down the House: The End of Juvenile Prison by N. Bernstein (The New Press 2015)
  • The Privilege of Silence: Fifth Amendment Protections Against Self-Incrimination by P. Hynes Jr. and S. Salky (ABA 2nd)
 

file5721298196911The entire legal community was shook by last week’s tragic event that took place in a local law office. Mistaking the office receptionist/clerk for his attorney, a disgruntled client marched into the office and shot him dead, leading to this criminal complaint.  We extend our deepest sympathies to the members of this law practice, and also to the victim’s family.

Attorneys may not always consider law office disasters beyond the context of missed deadlines or document production mishaps. In truth, the legal profession is pitted alongside people at their most emotionally fragile and volatile moments, creating actual threats to physical safety.  Tragic events over the past years have made us all aware of the need for courthouse security, both in the Twin Cities metro area and outstate Minnesota. We may not always realize that the need for safety might go beyond the courthouse doors. At the same time, it is impossible to predict all the ways that one’s safety might be compromised. It is unlikely that most lawyers would have expected a disaster like last week’s event in their own offices.

So what could or should attorneys do to prevent such situations? (Does a law office really need a SuperAmerica-style plexiglass service window?) Unfortunately, it is impossible to predict and prepare for every possible emergency. (Read “Is Safety an Illusion?” from this issue of the Montana Lawyer.)  At the same time, it’s still worth considering the possibilities and discussing them with colleagues and staff. (The agitated gunman scenario is fresh in mind, but also consider a fire, tornado, or security breach.) You may want to review your client relations policy to make sure it addresses clients who may become angry and violent.   Also check out the chapter “Office Security and Emergency Procedures,” in Law Office Policy & Procedures Manual  (CLE 2011).  Here are some additional suggestions from the New Hampshire Bar Association.

 

Youth and Justice

Teenaged boyThis spring our attention turns to those in the spring of their lives, specifically juveniles caught up in the justice system.  The early part of the last century was a time of growing awareness of juveniles, recognizing that while they were no longer babes in the nest, nor did they have the full facilities of adulthood. (Individualized Justice by Samuel H. Popper) Many of the judges represented in the portrait collection were active in the development of our district’s existing juvenile justice tools. Judge Orr presided over Ramsey’s first juvenile court in 1905. He was known for his commitment to youth and their legal issues until his retirement in 1930. Judges McNally, Loevinger, Walsh, and K.G. Brill also presided over the juvenile court in their terms.

Lately we have also seen two institutions of juvenile reform in the news: Ramsey’s own Totem Town has come under the scrutiny of the 2nd Judicial District. Specifically, judges are currently not referring juvenile defendants to this facility until further notice. Totem Town has a special local history of its own. The Minnesota Legislature enacted authorization for a boys detention home in Ramsey in 1907, and the original facility opened in 1908. It was later renamed Totem Town to lose some it its perceived institutional stigma. (Individualized Justice) It was only a few years back that it celebrated its 100th anniversary.  But even before the recent news development, many voices were saying that it needed to change to meet modern needs.

It is also the 125th anniversary of Minnesota Correctional Facility at Red Wing.  The Red Wing facility has a storied history within juvenile justice all its own.  (It was even immortalized with a Bob Dylan song.)  Judge Gingold was known to gently tease juvenile defendants with the warning that the “bus to Red Wing” was parked outside the courthouse and waiting.  Despite this long history and its striking building, the Red Wing facility has also had its detractors.  Read one man’s memory, which paints the picture of a rather draconian place. The Red Wing facility is also examined extensively in Burning Down the House: The End of Juvenile Prison by Nell Burnstein (available at our library).

Identifying and applying the right tools to juvenile justice remains a subject of much discussion, so expect to see more in this blog regarding such.  In particular, we are happy to announce that our Law Day speaker this year will be focusing on juveniles as they relate to Miranda warnings.

 

 

 

mortarboardThe fate of the Minnesota Sex Offender Program (MSOP) remains in limbo. Last year Federal District Court Judge Donovan Frank ruled that the Program constituted unconstitutional confinement.  More recently, the Judge Frank ordered specific changes to the program, but the State appealed this ruling and the Program continues as usual.

Recent news has cast light on some of the program’s candidates for “graduation” if you will. Of note, Oliver Lenell Dority has served at the MSOP for roughly 20 years, and will soon be provisionally discharged.  Dority was sent to prison in 1995 after pleading guilty to raping two women. He was civilly committed to the program in 2009.  Since he will be settling in St. Paul, the Police Department held a public meeting this week for residents to ask questions. Similarly, Christopher Coker of Minneapolis has sought release to a halfway house following his commitment to the MSOP fifteen years ago.  He was originally convicted for the rapes of three teenage girls in three incidents over 1991 and 1992.  Recently the Minnesota Court of Appeals upheld the decision of a special panel which concluded that Coker should be released to a halfway house in light of his treatment progress, despite conflicting reports submitted by the Minnesota Department of Human Services stating that Coker wasn’t ready for this step. In an unpublished decision written by Chief Judge Edward Cleary, the Court of Appeals concluded it was permissible for the panel to give increased weight to the positive report presented by Coker’s primary in-house therapist.

Created in 1994, the MSOP presents a phased-treatment program, implying that offenders can “graduate” if they successfully complete their treatment. So what exactly does it take to graduate from the program?  Among its numerous policies, the MSOP offers a general outline of its graduation standards (See Phase III on deinstitutionalization and reintegration).  In addition, news articles reveal Dority’s lawyer stating that he cooperated in the program and was never sent back to lower levels, and security guard testimony that Coker had been on over 30 chaperoned visits outside the facility without incident.  Over the two decades of MSOP’s existence, very few participants have ”graduated,” and these were all provisional discharges.  (None have been released outright.)  Interestingly, the provisional release rate has picked up in recent years, perhaps indicating a new commitment on MSOP’s part to holding up the program’s ”graduation” ideal.  (Pressure from a federal court might do that, subsequent appeal filings aside.)  The dilemma might simply be that while citizens are understandably concerned about the possibility of a sex offender living in their community, no sex offender can be asked to do the difficult work of changing themselves without some hope of eventually regaining at least some of their freedom.

 

file1701261140831Have you completed your holiday travels for the year? Were they as smooth and predictable as you hoped? The following year might be an interesting one for Minnesota air travel, and not necessarily for reasons relating to the weather. Most people prefer to handle airport security details as quickly as possible and then be en route to their destinations. Next year could conceivably be more complicated, however, in the event that the Department of Homeland Security (DHS) decides a driver’s license is no longer enough for airline passengers to clear security in some states, most notably Minnesota.  In these states, drivers licenses have not complied with federal standards as established by the Real ID Act (enacted in 2005).  Basically, the standards of the Act require more stringent proof of identity than currently on a standard Minnesota driver’s license, so as to eventually allow users’ information to be shared in a national database.    Not everyone is on board with the DHS plan, however.  Privacy experts, civil liberty organizations and libertarian groups fear the law would create something like a national identification card.  According to the map shown, travelers can circumnavigate Minnesota’s noncompliance with an “enhanced” driver’s license.  This is no doubt why thousands of Minnesotans have recently applied for such an enhanced license.  The Department of Motor Vehicles can tell you about getting such a license. You can also check out this DHS page to read more about the Real ID Act and where travelers stand on using their drivers license for airport security.

The timing of this coincides with a recent Transportation Safety Authority (TSA) policy mandating electronic screening for “some” passengers, who were previously allowed to opt out of the scanner with a standard pat-down.  According to the TSA, the scanner technology offers superior “threat detection capabilities for both metallic and nonmetallic threat objects.” In other words, the scanners can catch weapons hidden in clothes that a pat-down might miss.  This predictably raises questions, such as why are they not simply mandating the scan for everyone? And which passengers are the “some” which will still no longer get to opt for the pat-down as opposed to submit to the scanner?

The law of airport security and its constitutional implications may not come up every day, but a couple of law review articles touch on this touchy subject. Check out The Post-TSA Airport: A Constitution Free Zone? recently published in the Pepperdine Law Review.  Also see Enhancing Security while Protecting Privacy: The Rights Implicated by Supposedly Heightened Airport Security from the Michigan State Law Review.

 

Human Trafficking in the News

Linda Miller

Civil Society Founder and Executive Director Linda Miller

Human trafficking is an issue  that never goes away. This sort of crime often involves the most young and vulnerable victims, with perpetrators who are often established middle-aged men. Trafficking often takes place quietly over the internet in the heart of our own local communities. The problem becomes even harder to fight when it involves practices that are shrouded and protected by social or cultural norms.

The cultural complication is central in a case at the U.S. District Court of Minnesota, which recently made national news. In the case of Panyia Vang v. Thiawachu Prataya et al, the plaintiff is seeking statutory damages under “Masha’s Law” (18 U.S.C. 2255).  Basically, Masha’s law is federal civil legislation offering victims the chance for monetary relief in cases such as child pornography, child sex tourism, and child sex trafficking.  Vang’s attorney, Linda Miller, believes this is the first case to use Masha’s Law to recover monetary damages from child sex tourism.  Read the tragic and shocking story that appeared in a recent issue of the Star Tribune describing what happened to Panyia Vang as a fourteen-year-old that ultimately led to Miller filing this case in 2011.  Combating this kind of abuse is the professional mission of Miller (pictured here), who is the founder and executive director of the local organization Civil Society.

If you think someone is a victim of human trafficking, call the National Human Trafficking Resource Center at (888) 373-7888.  Do you represent victims of human trafficking in your regular or pro bono legal practice?  Consider checking out our copy of Representing Survivors of Human Trafficking (ILRC 2nd) by I. Lee and L. Parker.

 

Conceal and Carry

OLYMPUS DIGITAL CAMERAThe controversial subject of personal handgun conceal and carry has been rather prominent this summer in Minnesota. Besides a recent local incident that put the matter in the news, Minnesota now has reciprocity with North Dakota in recognizing registered carriers. An article from last Sunday’s Star Tribune reports that 200,000 Minnesotans now have permits to carry handguns. Controversies remain, with both sides having plenty of data to back up their arguments.

Carrying a gun is not for everyone, and an untrained and unprepared person toting a gun is no benefit to anyone.  Perhaps you have given it careful thought, however, and decided that carrying a handgun is right for you. If so, familiarize yourself with MN Stat §624.714.  Know the protocol you will need to follow if you get your permit.  Be aware that you will have to pass a background check, and that certain prior charges or convictions make you ineligible. You will also be required to take four to six hours of training in handgun safety. A permit usually costs $100, and must be renewed every five years. More information regarding the application process and your eligibility is available through the Minnesota Department of Public Safety.  To apply for your permit, simply file this application with your local sheriff’s department.  If the department denies your application, you may choose file a Petition for Reconsideration through District Court.

For more a more detailed and scholarly look at the history of Minnesota firearm carry laws, see this informative guide compiled by the Minnesota Legislative Reference Library.

 

Legislating Biology?

DSC06157As warm weather settles in, people are predictably taking walks, riding bikes, and enjoying other outdoor public activities. Of course, nature will eventually call on people as they enjoy her summer gifts. So this blog entry is about public restrooms. Not about the correct number of women’s facilities to men’s, or about where baby changing tables should be located, or about which restroom a transgender person should use, but about the simple availability of public restrooms.

In short, public restrooms seem to be in short supply in the places and times they are needed, especially if they are locked during certain time spans. This can leave people with few or no options when they desperately need to use them. The Minnesota Legislature sort of recognized this problem when it passed the Restroom Access Act, which essentially requires retail establishments to allow customers access to employee restrooms provided they have an “eligible medical condition.” This doesn’t help the medically ineligible, plus it holds businesses responsible for meeting a basic human need. (Restaurants provide restrooms for customers, of course, but you might not need it until 30 minutes AFTER you ate their blistering curry.)

If you are out walking your dog, Fido might conveniently opt to relieve himself on the spot (backed up by your baggie please), but don’t be tempted to follow suit. In Minnesota, one who relieves oneself publicly can be charged under the state indecent exposure statute (MN Stat.§617.23). St. Paul also has a municipal ordinance against public urination. No numbers are available as to how many people are so charged under these laws, but it would be interesting to see if there is any relationship between the proximity of public restrooms and the cases that were fully charged.

Perhaps there is a relationship between limited public restroom availability and possible Fourth Amendment implications. The old Katz vs. US 389 US 347 (1967) case was about the expectation of privacy in an enclosed phone booth with a door. (…Public phone stations then evolved to be doorless.)  In State v. Bryant 177 N.W.2d 800 (1970), the Minnesota Supreme Court extended Katz and held that this expectation of privacy extends to public restrooms, so perhaps there is concern that public restrooms encourage criminal activity by creating constitutionally-protected privacy zones.   There is also the concern that public restrooms may encourage the congregation of homeless and transient people, with Denver being a good example of one municipality’s struggle with this real-life problem.  But the leaders there discovered that when they opted out of public restrooms and all of their perceived problems (including drug use and prostitution), they were faced with a new problem in that areas without restrooms predictably got turned into restrooms.

Concerned citizens wishing to see more public restrooms may simply have to pressure their own local leaders, but also be aware of the mission and activities of the American Restroom Association.

 

National Library Week (and What It’s All About)

March 11 2015 004This week the Ramsey County Law Library joins with libraries all across the nation in celebrating National Library Week. A brainchild of the American Library Association (ALA), the purpose of this event is to celebrate the contributions of our nation’s libraries and librarians and to promote library use and support. After all, as the ALA’s Freedom to Read Statement begins, “[t]he freedom to read is essential to our democracy.” Our library is also committed to the principles set forth in the ALA’s Library Bill of Rights.

Our particular library serves the Second Judicial District Court, city and county officials, members of the local bar, and inhabitants of Ramsey County. It is covered under Minnesota Statute §134A, which governs the establishment and operations of county law libraries in Minnesota.  In particular, §134A.02 requires that “the use of the library shall be free to the judges of the state, state officials, judges of the district, municipal, county, and conciliation courts of the county, city and county officials, members of the bar, and inhabitants of the county.” (This contrasts to county law libraries in some other states, where access might be by paid subscription or only for local attorneys.) So when people ask if our library is open to the public, the answer is an unequivocal “yes.”

Best-selling author David Baldacci is serving as Honorary Chair of National Library Week. Visitors to the library this week can register to win one of three Balducci political thriller novels, plus pick up a free pocket Constitution or a word game.

 

Legislative Focus on the Family

Family law is having its day in the current session of the Minnesota Legislature. To start, a bill that would have drastically changed divorce proceedings by allowing couples to end marriages outside the court captured headlines earlier this month, but appears to have stagnated. Not so some other family-oriented proposed laws currently being considered at the capital. According to an interesting article the March 16 issue of Minnesota Lawyer, a group called the Child Custody Dialogue Group  has met regularly  since 2012 in the hopes of forging consensus on a whole host of family law reforms.  If enacted, these proposed reforms would mark the most significant overhaul to family law in Minnesota decades.

Here are some of the bills that came from the efforts of the Child Custody Dialogue Group:  Specifically, under SF1191/HF465, the 13 current “best interests of the child” factors in child custody proceedings would be scrapped in favor of 12 new factors.  Topping the new list would be “a child’s physical, emotional, cultural, spiritual, and other needs.” (To contrast, the 13 custody factors currently in use under MN Stat §518.17 begin with “the wishes of the child’s parent or parents as to custody.”)  Also of note, SF1103/ HF518 would require courts to award compensatory parenting time, and in some cases civil penalties, when parenting time is denied intentionally and repeatedly, unless the denial was necessary to protect the child’s physical or emotional health.  Additionally, HF464/SF1424 provides for simple market rate-based annual interest rate calculations, for family law judgments. It would also for a lower rate or no interest (although not for child support or spousal maintenance judgments) if the parties agree or the court finds it necessary to avoid unfair hardship, plus move the notice of rights language from “Appendix A” into the actual order for divorce, custody, and parenting time.

March 17 2015 002Of course, time waits for no child.  If you are a parent or practitioner hoping to craft the right parenting agreement for your situation, you know the legislature won’t do it for you.  Come into the library to consult the tools we have for researching and drafting custody agreements.  Some of them include:

  • Building a Parenting Agreement that Works: Child Custody Agreements Step by Step (Nolo 8th Ed. 2014)
  • Child Custody and Visitation Law & Practice (LexisNexis 2011)
  • Minnesota Child Custody Deskbook (MN CLE 2nd Ed. 2011)