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.


Nino’s Quieter Legacy (Justice Antonin Scalia)

Newspaper headline and bookThere was no ignoring last weekend’s news of the sudden death of Supreme Court Justice Antonin Scalia. Best known as the premier originalist on the nation’s highest bench, Scalia represented the position that the Constitution and each of its amendments mean exactly the same now as was intended on the day of their adoption. This is in contrast to the school of thought that views the Constitution as a living document, and that the task of interpreting it must adapt with the times.  (For a more in-depth look at Scalia’s interpretive style, consider his book Reading Law, wherein he and Bryan A. Garner spell out the principles of originalist interpretation.)  Typically employing his unique flair with words, Scalia was commonly regarded as both a champion and powerful voice for conservative causes before the Court.  Check out some of Scalia’s wittiest word-bites.

Scalia’s quieter legacy is the one he leaves behind to his surviving bench mates. By all recent news accounts, he was an engaging man who delighted in analyzing and debating the Constitution with his eight colleagues. The counter-position to his constitutional originalism was often represented by Ruth Bader Ginsburg, who usually analyzed fr0m the Constitution-as-living-document position. She remembered her friend and colleague this week, recounting their pointed opinion-and-dissent duets, which she says reached a higher quality as a result of their joint counter-efforts. Their professional camaraderie actually became an opera in 2013 (an art form that they were both big fans of). Indeed, all of his colleagues treasured their warm close relationships with him, and had the highest respect for the jurisprudence he brought to their team.  This is a special legacy in our era of hyper-partisan politics, which has destroyed any such camaraderie within our Congress.

One can honor Scalia’s legacy in this quiet fashion, by simply actively appreciating those people in our lives who force us to be a little sharper, a little more thorough, and a little more prepared. Even when (especially when) their positions might be diametrically opposed to ours, these are the people who can ultimately bring out the best in us and spur us to our greatest accomplishments.


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.


The OFP Comes of Age

file000388004075When it comes to the real-world application of a domestic abuse order for protection (OFP), the need for speed cannot be overlooked. This is why it was special news last week when the Minnesota Judicial Branch integrated OFP data into the Court Information System. It assists law enforcement by making OFP data immediately available to the BCA and FBI as soon as it goes into the Court Information System. Before this update,  courts transmitted these orders to law enforcement twice a day, so it was typically hours between a judge’s signing an OFP to cops on the beat having access to its existence. Likewise, the new system allows law enforcement to instantly report when an OFP has been served.  This new integration project began in the Ramsey District Court early last year, but now covers all Minnesota jurisdictions.

While this may not sound like a big development in itself, it is considering where domestic abuse law was in Minnesota not so long ago. Minnesota’s Domestic Abuse Act (MN Stat. §518B.01), which introduced the Order For Protection, was only adopted in 1979This article from the University of Minnesota Law School tells how a victim might not have any recourse prior to the OFP without filing for divorce (thus assuming she was married.)  The Act itself was groundbreaking in that it required police to make an arrest in cases where there was probable cause to believe an assault had occurred, but it was still far from perfect.  This 1989 Report of the Minnesota Supreme Court Task Force for Gender Fairness in the Courts (chaired by the late Honorable Rosalie Wahl) reveals that even ten years after their introduction, OFP’s were seldom enforced due to judges’ attitudes (and probably also the limits of information technology) of the time. It also reveals that one seeking a protective order then might actually have to pay a filing fee or get an in forma pauperis (which they don’t now).

This news aside, domestic abuse remains a troubling problem in our community.  If you need immediate help, contact Ramsey County Domestic Abuse/Harassment Office or Bridges to Safety.


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.


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.


Weed for What Ails You

Cannabis leafThis year Minnesota joined 21 other states and adapted the Theraputic Research Act so as to allow for the medicinal use of marijuana.  Though the legislature was originally concerned about the medical side effects of chemotherapy for cancer, the final Act allowed nine qualifying conditions into the marijuana medicinal use program, including cancer; seizures including epilepsy; glaucoma; multiple sclerosis and other disorders that cause severe muscle spasms; amyotrophic lateral sclerosis; HIV; AIDS; and Crohn’s disease.   Earlier this month however, the medicinal use exception under the Act was widened to include “intractable pain.” Specifically, this means pain that “cannot be removed or otherwise treated.”  For recreational use, however, “cannabis” remains illegal in Minnesota.   (See this map indicating which states allow legal use of medical or recreational marijuana.

This is still pretty newsworthy, considering the historical/legal/cultural roller coaster that marijuana has experienced in our society.  According to this timeline, the cultivation of hemp was encouraged in our nation’s early years for practical uses such as making rope. But the cultural climate had changed considerably by 1936, when the propaganda film Reefer Madness was produced to warn young people about the dangers of a life built around recreational marijuana use.

So if you or someone you love is experiencing what they consider to be intractable pain, is this the green light to light up?  Not exactly. To be covered under the Act, both a patient and their physician are required register with the Department of Health.  Meaning, a patient will first need to convince their physician that their pain indeed meets this “intractable” threshold.  Also, they will have to wait until August 2016 to actually receive the marijuana for use.  For more information about Minnesota’s medical cannabis program, please visit the Minnesota Department of Health’s medical cannabis website.

We don’t want your research of state marijuana laws and regulations to be intractably painful.  Start with these two Information Briefs from the Minnesota House Research Department: Medical Cannabis: A Guide to the Minnesota Law and Minnesota’s Medical Cannabis Therapeutic Research Act.  An emerging legal issue on this topic is the question of how an employer needs to accommodate a worker’s medical marijuana use, as highlighted by this interesting article in the December issue of Minnesota Bench & Bar written by University of Minnesota Law student Richard Sharp.  Additionally, some recent CLE’s available in the library address this particular issue:

  •  Public Sector Labor & Employment Law Manual 2015 – “The New Medical Marijuana Law – Implications for the Public Sector Employer and Employee” by T. Jacobson & T. Louris (MN-CLE)
  • Employment Law Handbook 2015– “Clearing the Haze of Marijuana in the Workplace” by S. Ballard (MN-CLE

The Racially-Tailored Jury

Courtroom 055The U.S. Supreme Court is currently shining its legal beam on the practice of peremptorily striking potential jurors from panels due to race.  This practice doesn’t openly happen in our modern courts, of course, due to the Court’s race-neutral mandate per its 1986 decision in Batson v. Kentucky (476 U.S. 79).  In Batson, the Court held that the Equal Protection Clause forbids prosecutors from challenging potential solely on race, and that prosecutors could be required to provide a race-neutral explanation when using a peremptory challenge to strike potential black jurors.  It is because of Batson that Minnesota has a three-step process to analyze whether a peremptory challenge was racially motivated. (See Minn.Rules.Crim.Pro 26.02 for jury selection requirements in criminal cases, and the allotment of preremptory strikes and challenges to peremptory strikes related to race or gender.)

Despite Batson, peremptorily striking black jurors is still shockingly common.  The current case of Foster v. Chatman features a death-row plaintiff who could win a new trial nearly twenty eight years after his original sentence. Timothy Tyrone Foster was sentenced to death by an all-white Georgia jury in 1987 for the murder of an elderly white woman, after all the potential black jurors had been stricken from the panel. The prosecution’s original jury selection notes from Foster’s sentencing have become the attention-grabbing exhibit in this case, featuring color-coded highlights with blatantly race-specific distinctions.  None of the Supreme Court justices has seemed pleased by this evidence, nor with explanations offered by the defense.  But prosecutors aren’t the only attorneys guilty of this practice, and they are likely not the only players behind a similar jury for a very different case currently being tried in Oklahoma.  Former police officer Daniel Holtzclaw is on trial for the sexual assault of thirteen black women while he was on duty.  For his alleged crime, Holtzclaw is being tried by an all-white jury of mostly men. (Similar to the race issue, it wasn’t so long ago that some courts needed a Supreme Court mandate to get women on their juries.)

Obviously, race is factor which inevitably bears on personal experiences, and can thus shape the way a potential juror might view the criminal justice system.  It’s no surprise that attorneys might try to racially-customize a jury, which is why Batson was necessary.  It has been asserted that the only solution to this race-bias danger is to eliminate the peremptory challenge practice in jury selection.  Yet peremptory challenges and its role in jury selection are a time-honored legal strategy of our justice system dating back to the common law. (Indeed, we offer resources in our library specifically on jury selection.)  Given this tradition and the demonstrated inadequacy of Batson, what is the real-world solution needed to ensure fair trials?  How likely is it to come from the Supreme Court as it considers the Foster case?



Driving Under the Influences (Distracted Driving)

vehicle control panelMuch media commotion ensued last week when a local driver was pulled over by a state trooper for drinking coffee behind the wheel, according to the driver.  (The facts are in conflict, for the trooper stated that the driver was actually pulled over for not wearing a seatbelt.)  When you think about it, drinking coffee on the road certainly can be dangerous. We’re talking about piping-hot fluid, into which people will try to deposit packets of flavors, with flimsy lids that frequently malfunction. Probably a good number of drivers on a given weekday morning are “driving under the influence” so to speak, but many of those drivers will attest that their safe driving depends on that early morning caffeine boost.

Back to the driver at issue, is it illegal to drink coffee while driving in Minnesota? What activities are allowed while operating a motor vehicle?  Texting is out, but using your voice-activated phone is generally permitted. (For teens, no using cell phones behind the wheel under any circumstance except 911 calls.) Drivers cannot wear headphones, or be watching a mobile television, but consuming food or beverages seems to be acceptable.  But obviously one cannot properly control the vehicle when fumbling with a phone, a cheeseburger, or tending to  infant passengers.  And whether prohibited by statute or not, there is no end to the list of activities that can potentially make your drive dangerous.  So what are the legal ramifications of these various driving distractions, including coffee cups, phones, babies, etc.?

Basically, MN Stat 169.13 prohibits operating a vehicle “carelessly or heedlessly in disregard of the rights of others, or in a manner that endangers or is likely to endanger any property or any person, including the driver or passengers.” It might seem rather vague, but according to the Minnesota Department of Public Safety, distracted drivers can be ticketed under this statute.  Essentially, it is the state of being distracted that creates the driving risk, rather than the exact activity serving as the distraction.  To speculate, if you are driving with your eyes and attention on the road, following all the signs, and responding appropriately to other vehicles, then the coffee by your side probably isn’t a big deal.  If you just rear-ended someone due to spilling hot coffee in your lap while trying to put sugar in it, then you might be in a different situation (and might want to contact an attorney).


The Swerving Path of Minnesota DWI Case Law

Traffic StopIt’s easy to get confused by the evolving state of Minnesota DWI case law.  For the last three years, it has been something of a moving target for judges and lawyers. The most recent decision, last week’s State v. Trahan, adds yet more wrinkles to the wash.  Briefly, the Minnesota Court of Appeals held warrantless blood tests to be unconstitutional, as are criminal charges based on one’s refusal of said blood test.  Trahan is best analyzed in perspective of other groundbreaking DWI case law of recent years:

Missouri v. McNeely (2013). The U.S. Supreme Court held a warrant is needed before drawing blood from DWI suspects except in certain emergencies. This decision trumped the prior Minnesota standard established in the case of State v. Shriner, which held that dissipation of blood alcohol creates the exigent circumstance to justify a warrantless blood draw (provided that officers have probable cause to believe that the defendant committed criminal vehicular homicide or operation.) A groundbreaking case, but the analysis was only beginning for Minnesota.

State v. Brooks (2013). Following on the heels of McNeely, the  Minnesota Supreme Court concluded that blood and urine samples taken from the defendant without a warrant were constitutional, because he “consented” to the tests at issue (despite being told that refusal was a criminal offense.) The Court concluded that in light of Brook’s actions (and that his lawyer was advising him from the passenger seat), plus Minnesota’s implied consent law (anyone who drives a motor vehicle “consents” to a chemical test when certain conditions are met), Brooks had “consented” to the searches at issue.

State v. Bernard (2015). The Minnesota Court of Appeals upheld warrantless breath tests as permissible as a search incident to a valid arrest. It also upheld the constitutionality of Minnesota’s implied consent statute as applied to breath tests, in cases where the officer requesting the test would have had grounds to obtain a valid search warrant requiring the driver to submit to testing. The Court did not analyze the constitutionality of warrantless blood tests, however, basically setting the stage for Trahan.

State v. Trahan (2015). The Minnesota Court of Appeals then held that the search-incident-to-arrest exception did not justify a warrantless blood test, as a dissipating blood alcohol level was not an exigent circumstance.  Thus, a warrantless blood test would constitute an unreasonable search. The Court also held that the implied consent statute criminalizing test refusal was not narrowly tailored and thus violated defendant’s right to due process. The invasive nature of testing blood rather than breath was a distinction from Bernard.

This represents some quickly-changing case law for legal professionals to stay on top of (not to mention for non-professionals who might find themselves pulled over).  Use the links provided to brush up on the analyses of these cases.  Then stay tuned, as the Minnesota Supreme Court is likely to weigh in on the issues before long.