Ramsey County Law Library Blog

Recently the United States Supreme Court startled the criminal law sphere with its decision in Missouri v. McNeely, wherein it ruled that collecting blood samples may require a search warrant depending on the circumstances. On the heels of this decision, The Court thus vacated DWI convictions in three cases (Brooks v. Minnesota), one of which was based on blood testing and the other two based on urine testing. Apparently, the fate of the convictions in the decision wasn’t due simply to their testing’s body-invasion factor, but something more.

As reported in the April 29, 2013 edition of Minnesota Lawyer, Brook’s attorney Jeffrey Sheridan asserts that the cases are about the role of the 4th Amendment in DWI investigations, not about expediting the investigations themselves. As a result, doubt has been cast on the role and validity of statutes like Minn. Stat. 169A.20 subd. 2, which makes it a crime to refuse blood, breath, or urine testing for in DWI investigations. Attorneys cited in the article forecast litigation storm activity on the horizon, particularly in the form of motions to suppress such test results. In contrast, prosecuting attorneys believe that the applicability of McNeely is narrow, indeed limited to scenarios involving nonconsensual testing. (Yet the Law Librarian is currently asking herself, how often would a person’s consent be based on knowing or supposing of the existence of a statute like 169A.20?) In light of this cloud of doubt, Minnesota Lawyer posts a couple of post-McNeely practice tips for both prosecutors and defense attorneys.

The front page article in the most recent issue of Minnesota Lawyer tells the shocking account of a Rochester law firm who received an email from a woman seeking legal help with collecting on a promissory note she had. The firm agreed to take the case upon receipt of a $5000 retainer fee from the woman. The woman complied, and three days later a check for $110,000 from a third person and payable to the firm arrived in the mail. The firm deposited the check, and the woman asked for the money. The firm wired the money to her per her request to a bank in Japan. When the firm received another email from the woman identical to her first request for help, it suspected something was amiss. It was soon confirmed that the large check and the retainer check were both counterfeit. The details of the story are numerous – read the story here.

Unfortunately, numerous law firms in Minnesota have been victims of such check scams, according to the Minnesota Office of Lawyers Professional Responsibility (OLPR). Adding insult to injury, some victimized lawyers have been privately disciplined as well. What advice does Martin Cole from the OLPR have for lawyers not wanting to get burned this way? “If you wait until the check has cleared, you don’t have anything to worry about.” Probably good advice, considering that these scammers typically depend on speed to carry out their heists.

Today’s edition of the New York Times posts an editorial from Steven J. Harper, a former partner at Kirkland & Ellis. Harper describes the overbearing billable hour regime and its resulting law firm culture, referring to it as a “leveraged pyramid” that serves primarily to bring wealth to a firm’s equity partners.

The numbers are well-known to all legal professionals: An associate at a large firm is typically required to bill 1900 hours per year. For this effort, an associate will typically be paid one-fourth of the amount that these hours generate from the clients, if not less. Harper estimates that it takes 50 hours a week to generate an “honest” 40 hours a week to the client. Working evenings and weekends is inevitable, with the resulting “more is better” culture pushing everyone to do ever more. Partners logically strive to maximize individual client billings for their departments. They may try to do much of the work themselves, as their own client billings can make them attractive to other firms.

Clients don’t always get their money’s worth, as overwork fatigue can lead to erosion in work product quality. Even though clients occasionally rebel, alternative fee arrangements remain rare. Billing scandals aren’t unknown, however. A former Arkansas Supreme Court justice went to prison for billing clients for time not worked. A prominent Chicago law partner got into trouble when he couldn’t prove how he billed 6000 hours a year over four consecutive years. In spite of all this, Harper doesn’t expect the entrenched culture of billable hours to go away anytime soon…

Mr. Harper is also the author of The Lawyer Bubble: A Profession in Crisis.

Troubles continue with the St. Paul Crime Lab, as the police union criticizes the Police Department’s plan to hire a civilian forensic manager for the facility, namely one with a greater scientific background. According the Pioneer Press, The St. Paul Police Federation attorney stated in a letter that “that the use of non-union personnel to do work previously and historically performed by members of its bargaining unit… [is]…subject to mandatory bargaining.” Police Chief Thomas Smith justified the hiring action on grounds that the City of St. Paul simply created the new job classification based on independent consultant recommendations, thus violating no existing contract. More can be read about this here.

Not all forensic scientific evidence for legal purposes gets processed through a traditional crime lab, per se, because such evidence goes much further than just fingerprints or blood spatters. It also includes such evidence as bite marks, voice recognition, polygraph readings, and so much more. How these various scientific tools fit into the framework of laws and the constitution is not always simple or clear, however. In 2009, The National Academy of Sciences released their report, Strengthening Forensic Science in the United States: A Path Forward. The report criticized the forensic science profession for failing to establish valid procedures and accurate results as was needed by the courts system. Professors Paul C. Giannelli and Edward J. Imwinkelried (et al.) responded with the 2012 release of Scientific Evidence (5th Ed.), published by LexisNexis. The Professors expressed their hope “that this edition will help the bar and bench conduct that scrutiny.”

The St. Paul Crime Lab fiasco is but one reason why the modern legal professional must be aware of the latest scientific techniques as they serve to demonstrate or disprove connections between evidence and individuals. Indeed, this two-volume set of over 30 clearly-written chapters analyzes numerous cutting-edge scientific techniques. It also provides extensive citations to the latest case law and statutory authority for spot-on legal research and analysis of these corners of forensic science.

Stop into the Law Library if you would like to look at this impressive set.

Much media attention has been given to the credibility crisis of the St. Paul Crime Lab in the past year. The front page of the February 15 issue of the St. Paul Pioneer Press now states that an independent consultant’s review of 100 cases involving tests by the St. Paul Crime Lab revealed errors in most of them, throwing thousands of convictions into doubt.

Minnesota public defenders have been quick to investigate this alarming issue, identifying over 13,000 convictions of the last decade that involved evidence tested at the lab. State Public Defender John Stuart said that public defenders are also prioritizing these cases for possible post-conviction relief, starting with those still behind bars and those whose lives have been marred by their convictions. But the improper work of the Lab also affects prosecutors. Re-tests of lab specimens by the Minnesota Bureau of Criminal Apprehension revealed at least two false negatives, plus the St. Paul Crime Lab failed to identify large numbers of fingerprints as suitable for criminal identification purposes. Corrective action has included a 25% budget increase by the City for the lab, as well as bringing in more advanced forensic experts.

The St. Paul Crime Lab tested samples that were used by district courts of Ramsey, Washington, and Dakota Counties, but lab testing crises like this are not unique to Minnesota. Similar quality concerns regarding crime labs have arisen in other parts of the country in recent years, including Boston, Seattle, North Carolina, and Los Angeles.

The entire article can be read here.

       According to the January 7, 2013 issue of The Minnesota Lawyer, the new legislative session will feature the fight to fund public defense in Minnesota (“PD board withdraws funding request” p. 1). Public defenders in Minnesota have typically been funded by earmarks from attorney registration fees. But the State Board of Public Defense recently withdrew its request to the Minnesota Supreme Court for a continuation of a $75 fee increase after the Minnesota State Bar Association (MSBA) removed its support for this petition. The MSBA had supported this fee increase in the past.

       These earmarks previously generated about $1.9 million per year, and paid for 23 additional staff positions. Public defenders were hoping to use the money from this year’s fee increase to start an electronic case management system. Yet many bar members objected to attorneys being forced to pay for what is they see as the state’s responsibility to provide for a constitutional right. At the same time, public defenders don’t like being at the mercy of the Legislature, where they have not fared well in recent years. It remains to be seen if the upcoming legislative session will have a different outcome.