Monday, January 30, 2012

Ultimate Showdown! Private Defense Attorneys vs. Public Defenders

Many shoppers out there believe they have two options in choosing an attorney to defend them in a criminal case.  1) Hiring their own private defense attorney, or 2) Choosing to go with the public defender provided by the state/county.  People believe this to be true because of the case Miranda vs. Arizona which states that every accused person has the right to an attorney.  If one cannot afford an attorney, one will be provided for them.  It's that last sentence that gets a lot of people in trouble.

The general consensus among people unfamiliar with the legal system is that YOU get to decide whether or not you can afford a defense attorney.  This, as you may be realizing, is not the case.  Requirements vary depending on the state, county within the state, and type of crime you have been charged with, but in Minnesota, there are very strict income limits for people receiving free legal representation.  In other words, being able to afford an attorney is different than not wanting to pay for one.  Even if you don't make too much money, if you have assets you could liquidate (an extra vehicle, a boat, a cabin up north that you use for recreation, your first born child), the courts are well within their rights to ask you to liquidate them before they will offer you free legal services.  So, most people charged with crimes do not qualify for public defenders.  This leaves you with two options: 1) Hire your own lawyer, or 2) represent yourself pro se.  I would NEVER recommend representing yourself in any case that could carry with it significant fines or jail time.  The average citizen, as bright as he or she may be, simply is not equipped to deal with all the ins and outs of criminal defense.  They don't make us lawyers go to law school for three years before we can even sit for the bar for no reason.  Practicing law is tough and, in most cases, should be left to the professionals.  You wouldn't perform your own heart surgery.  You shouldn't defend your own criminal cases, either.

So, now you know that you likely don't qualify for public defender services.  But what if you do?  What if you have been struck down by the economy, are having a tough time making ends meet, and got mixed up in something for which you are being charged with a crime.  Should you go with the public defender if you qualify for one?  I know if I recommend "no," that may ring a bit hollow, seeing as BDH Law Office is a for-profit private law firm that benefits from people deciding not to employ a public defender.  However, I truly do believe that if you can scratch up enough money to pay for a private attorney, whether it be by borrowing from friends or family, or even asking from donations from people from your local church, it will be worth it for you in the end.

I would never disparage the work that public defenders do.  Public defenders are one of the reasons the legal system works.  They often work for much less than they are worth and work too hard for what they are paid. They don't get to choose their clients -- they care chosen for them.  They do an admirable job considering the circumstances under which they are required to operate.  If it wasn't for public defenders, innocent people would be sent to jail FAR more frequently.  The problem with accepting a public defender to defend your case is that the system is broken.  Funding for PD's has gone down significantly over the years and there simply aren't enough public defenders to handle the case load they are burdened with.  This lack of time, resources, and flexibility make juggling the workload very difficult for most PD's.  They put in every bit as much effort as a private attorney, but their time is simply stretched too thin for them to give every client they have the attention they deserve.  This often can lead to missed details, delays in your trial (if indeed your case goes to trial), and a weaker relationship between you and your attorney.

Private attorneys have the ability to limit their case load to a number of clients they are comfortable with.  If they don't have room, they often will refer you to an attorney who might.  You are paying for the services of a private attorney, unlike with a public defender, but you get a lot for your money.  You get someone who will put in the necessary time to make sure all the "i's" are dotted and "t's" crossed regarding your defense.  While there are obvious benefits to a public defender settling a case just to get it over with (lessening their caseload, helping their client end the proceedings quickly, creating more time for other clients), private attorneys need to be successful to continue to get clients.  The last thing any Minnesota criminal defense lawyer wants to do is get a reputation as someone who pleads out every case they handle.  A lawyer who recommends accepting a plea all the time isn't an attorney who seems willing to go to war for you.  You need a lawyer who will help you find the best possible outcome for your case and then fight to get it.  If your attorney feels the best you can do is accept a plea offered up by the prosecution, then so be it.  What you don't want is an attorney who is suggesting a plea because they don't have time to handle your case properly.

If you've been charged with a crime, be it a felony, misdemeanor, or DWI, it's important to have legal representation.  If you really cannot afford an attorney, then it's certainly better to work with a public defender to make sure you have a competent, experienced attorney on your side.  However, even if you do qualify to use a public defender, if you think you can make it work financially, hiring a private Minnesota criminal defense attorney is going to give you the piece of mind that you get from knowing someone is willing to battle for your rights.


As always, none of the proceeding is intended to act as legal advice in any way.  If you have been charged with a crime or fear that you may be charged with one soon, please contact a Minnesota criminal defense lawyer immediately to set yourself up with the best possible opportunity to succeed in your defense.

Wednesday, January 25, 2012

Details on the Amy Senser Criminal Case

If you're a Minnesotan who occasionally watches the news or reads a newspaper, you've probably seen at least a little something about the hit-and-run allegations against Amy Senser, wife of former Minnesota Vikings tight end and restaurateur Joe Senser.  Amy Senser is alleged to have struck a man near the Riverside exit ramp off westbound I-94 while the man was pouring fuel into his vehicle.  There has been a lot of conjecture and curiosity surrounding this case, as is common with situations like this in the homey state of Minnesota.  I've had a number of people asking me for my opinion on the proceedings recently, so I figured I would touch on a few things in this space regarding the impending criminal case against Mrs. Senser (I'll leave the juicy civil proceedings to someone  more versed in that area of law).  Now, keep in mind, I am not in any way involved in this case, so the facts that I will be using will be what has been reported to the media.  There are usually facts withheld from the media until the time the case goes to trial, so it is likely that we are not aware of every little detail regarding the case.

A lot of people are confused by the defense's theory of the case.  Mrs. Senser's attorney has stated that the defense is not disputing the fact that Mrs. Senser's car was the vehicle that struck the victim, nor are they disputing that she was driving the car at the time.  Most people hear this and say, "Why are we having a trial here?  If she's the one who hit and killed the man, then she's guilty, right?"  Wrong.  The actual causing of death is not the crime here.  There are qualifiers that must be met in order for a person to be criminally liable for injuring or causing the death or another by hitting them with a vehicle.  Those qualifiers include things like operating the vehicle in a grossly negligent matter, in a negligent manner while under the influence of drugs or alcohol, being above the legal limit of .08 BAC, or when the driver in question leaves the scene of the accident.  Simply getting in an accident and causing someone's death is not enough to be guilty of criminal vehicular homicide in Minnesota.  The bare minimum mens rea (lawyer-talk and Latin for "guilty mind") is that of gross negligence.

In the Senser case, the State won't be forced to prove that she was driving the car that killed the victim (that is being stipulated to by the defense), but they will have to prove that she had acted in a manner that was grossly negligent.  The position of the defense is that Mrs. Senser did not have actual knowledge that she hit anyone with her vehicle.  If this assertion is true, the element of gross negligence would be out the window, as would be the fleeing from the scene of a felony element of the crime.  Basically, the point of all this is that in order for Mrs. Senser to be guilty of a crime, she has to have known that she committed the crime, or have acted in such a grossly negligent matter that it was foreseeable that her actions could cause harm to or the death of a person.  This can be an extraordinarily difficult thing to prove, as there were few, if any, eye witnesses at the scene of the crime.  Without knowing the level of care being taken by Mrs. Senser in the moments leading up to and following the accident, the prosecution will have a hard time proving gross negligence.

The preceding statement assumes, however, that the defense can show that it's reasonable that Mrs. Senser didn't know she hit anything.  Mrs. Senser, through her attorney, claims to have thought she hit a piece of construction equipment and didn't think anything else of it.  Because of this claim, the actions of Mrs. Senser immediately following the accident will be closely scrutinized at trial.  The prosecution claims that after the accident, Senser "sped off" and drove around for about half an hour, all the while talking on the phone with her husband, her daughter, and her daughter's friend (with whom she was suppose to be attending a Katy Perry concert).  There were over a dozen calls to her cell phone from these three people during that half hour period.  The defense claims that these calls were made because Mrs. Senser had gotten lost due to not being able to take her normal route east because of road construction.  Her family was simply assisting her in finding her way.

I find this to be a very interesting explanation for the phone calls, as Mrs. Senser has, presumably, lived in the Twin Cities metro area for a very long time, making it somewhat curious (to me, at least) that she would have trouble finding her way around when she was driving in I-94.

There are a number of other pieces of circumstantial evidence indicating that Mrs. Senser may have been under the influence at the time of the accident.  There are eyewitnesses who claim to have seen a vehicle meeting the description being driven erratically on I 94 around the time in question.  Her daughter's friend texted her mother about Mrs. Senser being unable to pick them up from the concert and indicated that she thought Mrs. Senser may have been drinking.  There was a phone call placed from Joe Senser's cellphone to a Twin Cities drug and alcohol abuse center the next morning.  None of these things prove beyond a reasonable doubt that Mrs. Senser was intoxicated at the time, but it would not be surprising if a jury finds sufficient evidence to convict based on that inference by the prosecution.

In my opinion, Mrs. Senser's defense attorney has done a good job of listening to his client and laying out a relatively feasible set of events that will challenge the prosecutions ability to prove beyond a reasonable doubt that Mrs. Senser acted in a grossly negligent manner or that she was under the influence of intoxicates at the time of the accident.  This case will boil down to the amount and credibility of the circumstantial evidence presented by the prosecution, as well as the witness testimony.  To me, there seems to be a lack of cold, hard evidence proving that Mrs. Senser knew (or reasonably should have known) that she struck a person on the night in question.  It will be up to the prosecution to prove that she did.

Is it reasonable for Mrs. Senser to have failed to notice the blood on the front of her car?  Is it reasonable that she believe the object she struck was not a vehicle or a person, but a piece of equipment?  Eyewitnesses say that the victim's car had it's flashers on that night, so it's reasonable to assume that Mrs. Senser at least saw the car sitting near the off-ramp.  There are a lot of unanswered questions regarding what Amy Senser did and didn't know that night, and the resolutions to those questions will decide her fate.

One thing I can say with certainty is that Mrs. Senser did the right thing by contacting a criminal defense attorney the first moment she felt like she could potentially be in some trouble.  If you ever find yourself in a similar situation, it is imperative that you get in contact with a qualified, talented, and dedicated criminal defense attorney immediately.  Don't wait until you've been charged with an actual crime and have come to the realization that you may have already said too much.  Protect your rights by getting a Minnesota criminal defense lawyer in your corner.  

Monday, January 23, 2012

Does it Matter Which Lawyer You Hire?

I was spending some time with a longtime friend of mine the other day when an interesting topic came up.  We were talking about the first OJ trial and how we remembered getting to watch it at school from time to time.  I mentioned how dumb the whole bloody glove thing was, when he then said "What was dumb was OJ spending so much money on all those lawyers.  If the facts are the facts, does it really matter who's representing you?"

I was somewhat astonished, given the fact that he knows what I do and that a big part of getting clients is differentiating myself from the masses.  None the less, he was serious.  As we were flipping through the channels on the TV, we stumbled across the movie "The Exorcism of Emily Rose" on cable.  Perfect.  I stopped for a minute to explain to him how this movie shows just how important it is to have a good lawyer.

Now, if you've seen the movie, disregard the outcome of the case in this analysis.  If you haven't seen the movie, I think it came out in 2005, so get to it.  It really is a good flick, albeit a great example of bad lawyering.  Either way, stop reading now if you don't want the film to be spoiled for you.

Laura Linney played the part of the hard-nosed defense attorney representing the kind-hearted priest who has been charged with negligent homicide for supposedly causing the death of Emily Rose while administering the exorcism ritual.  The first time I saw this movie, I thought the defense attorney did a great job of taking an alternate angle at this case and creating doubt in an area where there usually wouldn't be any.  After watching it again a few months ago, my perception changed, as it was now colored by my experience as a defense attorney.  Despite the defense "prevailing" in this case, I saw two HUGE things that would have been great grounds for an ineffective assistance of counsel case if the priest had (really) lost the decision.

1.  The basis of the defense's strategy was proving that Emily Rose did not suffer from a medical condition, but was indeed possessed by a demon.  Alright.  The real problem here is that Linney, understanding the impending resistance against this defense, claimed that the jury would be able to find validity in this defense even if they themselves did not believe in demons.  Of course, the very idea of this is ridiculous.  If a juror does not believe that demons exist, how likely is it that they will decide that the theory of demonic possession creates the required reasonable doubt in the prosecution's case?  The answer, of course, is not very likely.

Rule #1 in criminal defense is to avoid defenses that force the jury or judge into making a leap of faith in order to buy your premise of the events in question.  Honestly, if your necessary theory of defense involves convincing the jury to believe in demons, ghosts, Bigfoot, or the Boogieman, you may want to begin discussing plea bargains with the prosecution.  If your client is not accepting of a plea, then its best to prepare them for an untenable result.  Resorting to asking people to believe in invisible entities should under no circumstances be an option for a competent attorney.

2.  Let's assume that Laura Linney did a great job during her voir dire (jury selection) and found 12 people who claimed they didn't believe in demonic possessions, but agreed that such a thing was possible.  This gave her the ammunition she needed to go ahead with her attempt to prove that Emily Rose was possessed, not ill. The only question is, how should we prove that demonic possessions exist?  Get a crazy looking lady with weird clothes and an accent to ramble on about religious rituals from 3rd world countries?  Sure!  Linney's character proceeds to send an "exorcism expert" to the stand to testify on how "uncrazy" the idea of possession is.  She was hard to understand, provided testimony that was unrelatable, and was generally bizarre.

Another great rule of thumb is to not send an expert witness to the stand who will immediately be judged negatively based on their appearance, profession, or the content of their information.  Sending up what equates to a "witch doctor" is probably not a great idea.  In fact, it's possible that such a witness being a linchpin for your case could cause a motion for a directed guilty verdict on behalf of the prosecution.  A good lawyer would have found someone a little less objectionable and gotten the necessary expert witness from a more reliable source.  This might not seem like a big deal, but when you are paying an expert witness for their testimony, you had better be sure that they are going to provide a positive impact on your defense, as opposed to more fodder for the jury to question.

Ultimately, as you either know or have guess by now, the priest was found guilty of negligent homicide but was sentenced to only the time he had already served.  The jury, apparently, didn't believe in the demons enough to acquit him, but did believe that he seemed like a nice guy, so they recommended he not do any additional time.  This, if clarification is even necessary, is not a likely outcome of a guilty verdict in a murder case.  You may be wondering, however, that if the priest didn't have to go to jail, didn't he kind of win?  Well, kind of.  But he now has a criminal record of being guilty of negligent homicide, so good luck to him in finding a new parish to lead, or any other kind of job.

Being an advocate for your client is what being a lawyer is all about.  Any attorney that won't allow you input on how your defense will be handled should not be someone you work with.  Finding an attorney that will listen to your needs, work with you in creating a strategy, and act as an effective advocate is essential if you are facing criminal charges.  Don't settle for the first lawyer in the phone book under the assumption that all lawyers are not the same.  We aren't.  If you don't want to be betting your freedom on the jury's belief in the Easter Bunny, contact a Minnesota criminal defense attorney today for a free consultation regarding your case.

Monday, January 16, 2012

Do DWI's Really Get Dismissed?

I would guess that over half the legal questions I get asked (at least those not regarding people like OJ Simpson, Michael Jackson, or Jerry Sandusky) are about DWI's in one way or another.  This isn't surprising, seeing as in 2010, almost 30,000 DWI's were issued to drivers on Minnesota roads, according to the Minnesota Department of Public Safety's "Impaired Driving Stats" (you can check out all the stats for 2010 here).  42% of those DWI's were issued to drivers who had already been charged with at least one prior DWI.  Clearly, DWI's affect a large subsection of the population and are, therefore, a popular discussion topic as soon as folks find out what I do for a living.

The most common question is whether, even if you fail the field sobriety test or submit a Breathalyzer test that registers above Minnesota's legal limit of .08 BAC, the case can still be dismissed or the charges reduced?  The short answer is yes.  Being guilty of impaired driving doesn't necessarily mean that a DWI charge will hold up against you.  Obviously, being in the wrong makes things more difficult, and your best bet is to always find a designated driver or call a cab, but there can be ways to avoid the devastating effects of a DWI conviction.

Make no mistake:  DWI convictions are bad news.  Even the lowest DWI charge in Minnesota (4th degree DWI -- first offense with no aggravating factors or test refusal) is a gross misdemeanor that can carry with it a 90 day jail sentence and a $1,000 fine.  Subsequent offenses or aggravating factors can hike the penalties up exponentially and make for a very uncomfortable time in front of the judge.  Hiring a Minnesota DWI lawyer should be your first step when facing a DWI conviction.  However, just being guilty doesn't necessarily mean you're guilty.


The most common way to get a seemingly valid DWI charge dismissed is by challenging the grounds for the initial traffic stop.  Because we live in a country and a state that protects the rights of citizens, the ends do not always justify the means in the law enforcement world.  If you are stopped by a police officer and are subsequently found to be driving while impaired, it is still necessary for the officer to have stopped you for a valid reason.  Simply being drunk or impaired upon being stopped does not give the police officer rationale for stopping you in the first place.

A recent case I found illustrates this well.  A driver was seen to be traveling in an interesting manner by an officer in St. Peter, MN.  The driver made a couple of u-turns, delayed at a light, and changed directions a few times for seemingly no reason.  As the court opinion states (you can check that out here), however, the driver never committed a traffic violation that would give the officer reason to pull him over.  Simply driving with nowhere to go is not a crime, and therefore, the charges were dismissed for lack of probable cause for a traffic stop.

In this case, once stopped by the officer, the driver failed to pass a field sobriety test.  There seems to be little question that the driver was intoxicated at the time of his stop, but because the officer was found to have no evidence for the basis of his stop, the charges against the intoxicated driver were dismissed.  The case outlined here is just one in many cases of this kind.  Law enforcement must have a reason to make a traffic stop.  It cannot be based solely on suspicion or curiosity.

Seems easy enough, right?  Wrong.  The problem is that your average citizen likely doesn't know what constitutes a legal traffic stop, what they can be stopped for, or how to respond to an officer's requests during a stop.  A lot can go wrong if you try to defend your DWI charge on your own.  Your best bet, as it is with any criminal charge, is to contact an experienced Minnesota criminal defense lawyer.  If you have recently been charged with a DWI and have yet to contact an attorney, do it as soon as possible to ensure that everything can be done to win your case is done.

As always, this article in and of itself should not be construed as any kind of legal advice.  Every criminal defense situation is different.  If you have a situation that requires legal advice, please contact a Minnesota criminal defense attorney and make sure you have all the help you will need.

Sunday, January 8, 2012

The Increasingly Odd Joran Van der Sloot Case

I think most people are familiar with the trial of Dutch national Joran Van der Sloot taking place in Peru.  Van der Sloot is accused of murdering Stephanie Flores.  He was also a top suspect in the Natalie Holloway killing back in 2005, but was never formally charged with the still unsolved crime.

This case has been back in the news recently, and the trial for Van der Sloot was scheduled to begin on Friday, Jan. 6.  It was expected that Van der Sloot was going to plead guilty in light of his confession to the crime to Peruvian police, despite his attorney consistently telling the media that his client's confession was the result of police coercion and a language barrier.  

There was no official guilty plea entered on Friday, however, as Van der Sloot instead requested more time to more thoroughly consider his plea.  This is interesting for a couple reasons.  First, Van der Sloot is still expected to plead guilty in order to garner a more favorable sentence, so it's unlikely this delay will result in any change of strategy.  His decision to delay this plea is indicative of a lack of preparation on the part of the defense team.  Second, all indications are that Van der Sloot was prepared to plead guilty when he walked into the court room, but was not in agreement with all the charges laid against him.  His confusion regarding what he was pleading guilty to is something that should be avoidable.  

Ultimately, it is unlikely this delay in the proceedings will have any real affect on the outcome of the trial, but if Van der Sloot comes back on Wednesday and pleads not guilty, many questions will rise regarding the rationale behind his plea.  

An important element to conducting a competent legal defense is preparation.  The attorney and their client should show up to any hearing regarding their case ready to participate fully.  This is important for a few reasons.  First, it creates an air of confidence that judges, jury members, and the prosecution will pick up on.  As the great Tony Soprano once said, "More is lost by indecision than wrong decision," and he knows a thing or two about defending criminal charges.  Second, being prepared can make your representation cheaper.  Being on the ball can lower the billable hours your attorney is working, meaning that you will get the same effective counsel for less of your hard-earned money.  Lastly, delays due to a lack of preparation will drag out the proceedings, meaning that this experience will take up more of your life than it has to.  Delaying unpleasant situations is as American as apple pie, but the truth is that in the legal world, it's best to get things over with as fast as possible, assuming you aren't sacrificing the quality of your defense for expedition.

It isn't hard to avoid being a part of snafus like this.  One of the jobs of a criminal defense attorney is to make sure that his or her client is fully prepared and informed.  If you're in need of representation regarding a criminal charge, be the charge is something straight forward like a DWI or something complex like felony assault, contact a Minnesota criminal defense lawyer as soon as possible so you aren't wasting valuable time.