Wiping a Criminal Record Clean

cleaning a mirrorA pardon might be the closest thing Minnesota law offers to a “magic wand” to clean up a criminal record. This extraordinary remedy is not the same as expungement, which is the sealing of criminal records which can then be unsealed by court order.  A pardon means that one never has to disclose this prior conviction in any situation other than in a judicial proceeding or as part of a licensing process for peace officers. See MN Statute 638.02 subdivision 2 (2).

There are two types of pardon: The absolute pardon and the pardon extraordinary. The first is a forgiveness that exempts a convicted person from serving their sentence.  (A commutation, in comparison, substitutes a lesser sentence for the one originally imposed.)  The pardon extraordinary is for those past their convictions and sentences, and essentially sets aside and nullifies the past conviction. (See MN Statute 638.02 subdivision 2 (2).)   The pardoned person thereinafter will never be required disclose the conviction at any time or place other than per the exceptions noted above.

Pardon is indeed an extraordinary remedy and relatively rare. In order to get an offense pardoned, you must convince the legal trinity of the governor, attorney general, and chief justice of the supreme court that you deserve one.  That does not a majority of them, but all three. (You can see from last month’s pardon voting record that this is a very tough audience.) Plus, the very makeup of this group makes it obvious that there is little recourse for an appeal.  One can apply for a rehearing, however, if there are new substantiated facts not previously considered in the prior hearing.  Pardons were examined in a recent issue of Minnesota Lawyer, because The Minnesota Board of Pardons heard 18 applications for pardons last month, and granted six of them. To consider how stringent the threshold is, 0ne woman was apparently denied a pardon after she appeared to laugh off speeding offenses on her record.

If you decide to seek the pardon extraordinary for a past conviction, take care to make sure you are eligible.  You will want to ecome familiar with the statute and the administrative rules as well as look at the Board of Pardon’s webpage. Before you even think about a form, call for a brief interview with a representative to determine your eligibility. From there, if the Secretary of the Board of Pardons decides that you meet the qualifications, the official application will be sent to you.  And finally, you will be well advised to work with an attorney in pursuing this powerful remedy.

 

Elderly womanMost of us missed the fact that World Elder Abuse Awareness Day was last week.  And when it comes to elder abuse, financial abuse is the most common and fastest-growing form of it.  Whether it’s because they’ve accumulated more assets than other age groups, or perhaps it’s simply because our population is getting older, financial crimes against the elderly continue to grow at an alarming rate.   Victims might hesitate to report crimes due to embarrassment of not remembering something, or the desire to not be seen as a vulnerable adult. But one big reason for not reporting relates to the perpetrators.  The biggest category of financial abusers is not unscrupulous financial advisors, nor is it phony mail offer schemes or shady home contractors.  For many such seniors, the financial abuse is coming from a relative or loved one.  (Similarly, read this list of the top ten scams that target seniors, with special attention to the closely-related ”grandparent scam.”)

There are some state-specific resources to help, including the Minnesota Elder Justice Center, and a statewide elder abuse reporting hotline – (844) 880-1574.  There are also the Seniors Legal Rights handbook and the Seniors Guide to Fighting Fraud from the Minnesota Attorney General’s office.   Federal resources include Money Smart for Older Adults from the Consumer Financial Protection Bureau, where you can also submit a complaint.  There are tools to help prevent seniors from falling victim to fraud such as trusts and powers of attorney, but the simplest might be to keep seniors connected in family and social loops.  Seniors who aren’t isolated are less vulnerable to scams, and their friends and relatives can tell if something in granny’s life that seems off, such as a sudden and new “best friend” or “handyman.”  If you suspect you or another senior has been financially scammed, Minnesota’s Vulnerable Adult Act spells out how to report incidents of elder abuse, including financial exploitation.  The Minnesota Attorney General also urges you to submit a fraud report.

 

Borrowing Against Payday

loan business sign

The Consumer Financial Protection Bureau (CFPB) proposed a rule last week aimed at curbing predatory payday lending by requiring lenders to take steps to ensure that consumers can repay said loans, and also to cut off repeated debit attempts that rack up fees against the borrower.  The CFPB referred to such loans as ”debt traps,” due to the fees and penalties that users may not be aware of.  Fees can be assessed for either extending the loan or defaulting on it.  Since the loans are recouped directly from bank accounts, bank overdraft penalties are another common result.  These fees add insult to the injury in that such lenders may be charging interest fees of 300% or more.  The CFPB proposal brought attention to the plight of the vulnerable consumers that take out these payday loans and get caught in the debt cycle, but it also highlights the plight of those who decide to use such loans in the first place.  Opponents of this proposal pointed out that these loans serve people that might have few if any alternatives otherwise, so the question becomes whether or not these loans are a helping hand or “predatory quicksand.”  Read the entire CFPB report here.

The issue of payday loans is not new in Minnesota.  Minnesota’s payday loans statute requires lenders to check the credit history of their customers, and limits such loans to only four per customer within a year.  Last fall the Minnesota Supreme Court upheld the state’s payday lending law, which curbs high-interest, short-term loans.  In State of Minnesota vs. Integrity Advance LLC, the Court held in a suit brought by the Minnesota Attorney General that MN Statutes §47.60 and §47.601 are not violations of the commerce clause, because they only regulate commerce within the state.  Here is how Minnesota law compares to that of other states in the regulation of payday loan services.

If you are considering taking out a payday loan, read this fact sheet from the Minnesota Attorney General’s office first. If you have found yourself ensnared in a “debt trap” that started with a payday loan, there are some legal resources you might turn to. Pro bono organizations like Volunteer Lawyers Network (VLN) can offer debt collection defense for qualified individuals.  If you are currently facing collection efforts brought against you in Conciliation Court, you may be eligible to speak to an attorney through our Housing and Conciliation Court clinic.

 

 

Prince’s Purple Probate Puzzle

Purple roseAs the local community recovers from the death its beloved local musical icon, it has come to light that Prince apparently died intestate (failed to leave a will).  Given that his large estate likely includes earnings, royalties, and real estate (plus any unpaid debts), settling it will probably be even more complicated given his extended family.  He apparently had several half-sibs in addition to his sister, and Minnesota succession law makes no distinction between half and whole siblings.  Then dig if you will the (potential) picture of some unknown person stepping forth claiming to be another sibling, or even a child, of Prince.  Given all of these factors, it is understandable that his sister sought appointment of a special administrator in Carver County Probate Court to handle his estate.

Assuming that there is indeed no will, Prince is neither the first nor the last person to die intestate. People might consider wills unnecessary if they have no spouse or dependents, or don’t consider their assets to be worth much.  They might also see themselves too young to be concerned with such worries.  The reality is that roughly two-thirds of people currently have no will.

There is no shortage of online tools to help answer questions about probate.  Start with the Probate and Planning brochure from the Minnesota Attorney General.  The Courts website also offers helpful forms and information on probate court.  Unfortunately, none of these resources offer help for actually making a will.  We offer some resources for those who are ready to make make theirs.  Read this basic fact sheet from Legal Aid for general information regarding wills.  Other useful information tools include The Wills & Trusts Kit (2nd ed. 2006), or Nolo’s Simple Will Book (7th ed. 2007).  From there it’s easy to find various online will forms, but since state probate laws vary, a better alternative might be How to Make a Minnesota Will (2nd ed. 2002).  Besides information, this book offers numerous sample fill-in-the blank forms.  Whatever you choose, it’s best to discuss your personal situation with an attorney so you can prepare a will that accurately states your wishes and sees them carried out under applicable state laws.  The Volunteers of America Estate and Elder Law Services can also assist eligible people with wills and estate planning.

 

57-DSC_6403Our law library proudly promotes local criminal expungement resources to our patrons or others who might benefit from them. We are in partnership with the Second Judicial District, Volunteer Lawyers Network (VLN), and the Saint Paul Public Library to bring criminal expungement workshops to the public. Thus we were interested in the recent the Minnesota Court of Appeals decision in the case of State v. S.A.M, which involved a Rochester man seeking expungement of his 2003 felony conviction.  The Court held that his record could not be expunged because his previous guilty plea was to a charge not included in the list of expungible felonies under Minn. Stat. §609A.02.  It didn’t matter that the conviction in this case was subsequently “deemed a misdemeanor” per plea bargain terms.  Further, the Court declined to apply the language of sentencing statute Minn. Stat. §609.13 in order to make the appellant’s felony a misdemeanor for expungement purposes, because the original judgment was entered as a felony and not a misdemeanor.   This case is examined in this week’s issue of Minnesota Lawyer.

It’s not unusual for criminal defendants to plead guilty to a different charge in order to reach a quicker (and legally affordable) resolution to their prosecutions.  According to the U.S. Department of Justice90 to 95 percent of all criminal cases nationwide are resolved through plea bargains.  The expungement law does not specifically address situations where petitioners might have received a stay on a felony charge which was then converted to a misdemeanor. This gap in the law potentially leaves hundreds of expungement petitioners without the second chance remedy heralded by the 2014 expungement overhaul.  Indeed, the Court noted with some sympathy that its ruling  reveals a distinct hole in the expungement net, but held that it was up to the legislature to provide any needed clarification.

Does this ruling leave you with questions on if or how your expungement petition might be affected? Don’t reach any conclusions before discussing your case with an attorney.  If you are just starting to consider expungement, try a VLN seminar at a local public library. If you are preparing your petition paperwork, come to the Second Judicial District’s criminal expungement workshop which meets on the second and fourth Thursdays of each month here in the law library.

 
Bedroom door

You unlock this door with the key of accommodation…

Suppose you are a homeowner living peacefully in your own abode.  You get along well with your neighbors.  Your property taxes are up to date and you keep your sidewalks clear.   You and your home have no plans of winding up in court.  You certainly never give thought to landlord-tenant law because you aren’t leasing out your home. And yet you might find yourself in in situation that could leave you legally obligated as a landlord.  Here are but a few examples:

  • Months ago you let your significant other move into your home to save money.  You now regret this move as your relationship has gone downhill.  If you break up with him or her, can’t you simply show them to the door?  Maybe not.  They may now have the rights of a legal tenant, in which case you the landlord would have to legally evict them.
  • Your nephew lost his job and could no longer afford his apartment.  You let him stay in your your basement until he found another job.  He has since overstayed his welcome and is not looking for a job. So now it’s adios sobrino, right? Not necessarily.  He may no longer be simply a guest, but a bona fide legal tenant.
  • You hired a local college student to help take care of you and your home in exchange for room and board. Now you think she is stealing from you and you’ve decided fire her.  After you can her she is out the door, right?  This may not be a simple business employee relationship wherein termination automatically removes her from your home.  You may have to take more extensive legal steps.

These are but a few examples of how people might (or might not) accidentally take on landlord status without knowing it.  If you are in any of these situations and aren’t sure exactly where you stand, you should discuss your situation with an attorney.  For Ramsey County residents, this can be as simple as coming to our Tuesday afternoon Housing and Conciliation Court clinic, where you can speak to a volunteer attorney for up to thirty minutes.  Call us or see our flyer for more details.

 

Books and newspaperLast weekend saw the passing of Nancy Davis Reagan, best rememberd as the fiercely loyal and colorful first lady of the Eighties. Less well-known was the challenging life she lived with her late husband, former President Ronald Reagan after they left the White House. Nancy Reagan stated that her toughest battle was being the spouse of a man slowly dying with Alzheimer’s. In an interview she recalled the loneliness of no longer being able to share “remember when” moments with her husband, and referred to these difficult ten years before he died in 2004 as “the long goodbye.”

Consider Ms. Reagan’s difficulties in light of fact that her husband’s case was probably a “best case scenario” where Alzheimer’s is concerned.  As a successful actor and former governor and president, Reagan presumably had better-than-average financial resources and retiree benefits. Nancy was likely assisted by round-clock home health care in tending to her husband. He in turn benefited from a supportive family and a loving partner in Nancy who seldom left his side. He also knew from at least 1994 on that he had Alzheimer’s, which gave him some time to make plans for his fading sunset years. Many (if not most) people facing Alzjeimer’s come up short in at least one of these areas.

Whether you are an attorney or a family member, there is no simple roadmap for dealing with all the issues related to Alzheimer’s (and other dementia-related afflictions). Your situation might call for multiple legal resources and tools. For lawyers, consider starting with Alzheimer’s and the Law: Counseling Clients with Dementia and Their Families by K. Peck and R. Law. There are also multiple resources on the ABA Commission on Law and Aging page. We also have numerous treaties and tools in the library addressing elder care issues.

For laypeople, consider contacting the Minnesota-North Dakota chapter of the Alzheimer’s Association to learn what local services are available. Be aware that your situation may call for legal tools including Power of Attorney, Guardianships/Conservatorships, living trusts, and arrangements that encompass assisted living. Most of all, give yourself the benefit of discussing your situation with an attorney. You can find legal help through resources including Volunteers of America or the Ramsey County Bar Association.

 

Questions of Guilt and Innocence

Inside a PrisonMuch discussion has resulted from the ten-segment Netflix documentary Making a Murderer, which focused on the convictions of Wisconsinite Steven Avery and his nephew Brendan Dassey.  While this riveting documentary didn’t address all the evidence involved in this real-live case, it did spark troubling questions about the criminal justice process itself: How precise is our system of determining if one is guilty or innocent? How safe is our criminal justice system from possible corruption and bias at the local level? How much of our system is fueled by a human need to believe that the dangerous people are safely locked up and cannot harm us?  And are remedies like the appeals process or habeas corpus adequate for such justice errors?These are not mere abstract questions, for doubts and mistakes regarding guilt and innocence have existed for as long as criminal justice has. The trial and evidence leading to Minnesota’s first individual execution left major doubts as to the convicted’s guilt. As DNA technology emerged, many criminal convictions were found to be erroneous, including Avery’s earlier conviction.  Most wrongful convictions, however, involve non-DNA factors.

Avery’s situation is not cause for Minnesotans to feel smug and safe in their own state from justice failures like wrongful convictions. The case of Richard Dzubiak was one of a St. Paul man convicted of killing his mother by pushing her down the stairs. It later came to light that the original forensic report had been misread, and that the victim had in fact died from a fatal self-inflicted dose of antidepressants. Dzubiak then filed a motion to withdraw his guilty plea and receive a new trial, which was granted and resulted in his acquittal.  Another St. Paul man, Sherman Townsend, was charged with burglary of a Minneapolis residence on the word of the real burglar.  While Townsend was in prison serving the resulting sentence he received as part of a plea bargain, he met the actual burglar who was serving time on a different offense.  Fortunately this actual burglar stepped forward this time and testified that he had in fact committed the burglary, which led to an agreement between Townsend and prosecutors to have Townsend’s sentence commuted.  (It should be noted here that Townsend was an ex-con when the burglary occurred, which likely weakened his bargaining position with prosecutors.)

If you want to read more on the history and theory of wrongful convictions, consider these titles available at the Minnesota State Law Library:  Examining Wrongful Convictions: Stepping Back, Moving Morward (2014) by A. Redlich, et al., and False Justice: Eight Myths that Convict the Innocent (2011) by Jim and Nancy Petro.  Also check out the National Registry of Exonerations at the University of Michigan Law School If you or a relative has experienced what they believe is a wrongful conviction, know that challenging it is not a small legal task. You are strongly encouraged to work with a lawyer when exploring what possible post-conviction remedies you may have.  You can find a criminal lawyer through the Ramsey County Bar Association, or through the National Association of Criminal Defense Lawyers Also consider contacting the Minnesota Innocence Project.

 

file0001711542405The first thought of many litigants who lose their case in Minnesota District Court is to appeal the decision. After all, the judge and jury got it all wrong as far as they are concerned. Indeed, sometimes a court DOES get it wrong, and appeals courts exist for this very reason. But self-represented litigants can be unpleasantly surprised at what an appeal requires, especially in terms of their time and energy. Before you decide that appeal is the answer to your unfavorable judgement, here is the very least of what you should be aware of.

1. Filing an appeal is expensive. The filing fee for an appeal in Minnesota is currently $550.  One must ask if this is really for it for minor adverse judgments, like a traffic violation. Of course, you may apply for a fee waiver, which may or may not be granted.  Further, if you lose on a civil appeal or the Court determines your civil appellate claim was frivolous, you could be ordered to pay costs for the opposing side.

 2.  For civil cases, you must also determine if your case is appealable Not every decision or judgment is technically eligible for appeal under Minnesota law. Best to read Rule 103.03 of the Minnesota Rules of Appellate Procedure.

3. Not every case has grounds for appeal, or merit. Filing an appeal is not a “do over” of the case, and mere dissatisfaction with the decision is not a legal basis to challenge a decision.  You also cannot bring new arguments, evidence, or witnesses into your appeal.  Read more about this on the MNCourts webpage.

4. There are time limits for when you can appeal. Civil appeal time limits might be governed under Rule 104.01 of the Minnesota Rules of Appellate Procedure, but not always.  Criminal judgments have appeal time limits of their own.  Start with Rule 28 of the Minnesota Rules of Criminal Procedure if you are trying to determine yours.

5. Preparing an appeal involves much more than simply filling out the forms. Much of the extensive research and paperwork you must do is toward the requirement that you prepare a written argument, or brief for your appeal.  (Most practicing attorneys will tell you they spent significant time researching and writing their first appellate brief in law school, and you likely will as well.) We have some appellate brief samples you can see here in the law library, plus this Libguide on appeals from the State Law Library offers online samples as well.

This all said, for pro se litigants who believe they have grounds for an appeal and want to pursue one, there are some additional resources which can help. The Courts webpage offers answers to basic questions on both civil and criminal appeals.  An excellent written guide for pro se litigants filing an appeal is this one from the Battered Women’s Legal Advocacy Project.  Finally, the Minnesota State Law Library has recently started an appeals clinic, where attorneys can help you with questions including applicable deadlines, filing forms, and brief writing.

 

 

Divorce – Baby Steps to Big Steps

Woman walking awayMaybe after much thought, you have finally decided that you are ready to file for divorce. You expect that this will a big project, especially having seen how extensive the initial paperwork can be. You might also be feeling that you just need to get through the busy holiday season before you take any real steps.

First, be aware that the MNCourts online I-CAN system can help you streamline the preparation of your initial divorce filing. It does this by allowing you to type in information as prompted, and then by storing it and then formatting it into your own personalized petition papers to file.  Do you manage to find unscheduled bits of downtime during your busy holiday season? If so, here’s a suggestion for getting your divorce preparation underway:  Simply download or print out the Fast Facts worksheet from the I-CAN page, and then fill in the blanks provided for information such as addresses, birthdates, account numbers, etc. as your time permits.  Later on when you are less busy, you can take this written information you have prepared and sit down to enter it into your electronic I-CAN account.  Alternatively, you can get your new I-CAN account set up through your email, ready to access again at your convenience.

When you have your divorce initiation paperwork completed and printed out, you will want to make an appointment with the Ramsey Family Self-Help Center to go over these documents with their staff and make sure they are complete for filing.  There are other tools which can help you prepare for your upcoming divorce.  For instance, The Scott County Law Library offers a free divorce workshop every fourth Saturday of the month for those who might like some assistance with the I-CAN system.  If you are concerned for your safety, you may also want to consult the Ramsey Family Domestic Abuse/Harassment Office.

Good luck as you look ahead to 2016.