Friday, May 25, 2012

Amy Senser Trial Update: Appeals Process Gets Interesting

The saga that is the Amy Senser vehicular homicide case seems as though it may have no end.  Last week, in an unsurprising move, Senser's defense attorney, Eric Nelson, filed a motion to have the jury verdict in Senser's case either overturn the verdict entirely or to issue a new trial.

The issue at the crux of this motion was a not found written by the jury that they wished to have read out loud before their final verdict was read in court.  The judge decided not to read the note, instead passing it off to the prosecutors and giving it no weight.  So, just what did this magic note say that's got everybody so riled up?

"We believe that Mrs. Senser thought she hit a vehicle, not a person."

Oh, boy.

This note brings up a number of different questions, most of which can be answered by examining the jury instructions given to the 12 members before being sequestered.  The instructions gave the jurors the duty to convict Mrs. Senser if knew she caused injury, death, or damage to another vehicle.  Inexplicably, Nelson did not object to the inclusion of the "damage to another vehicle" section of the instructions.  What this means, ultimately, is that the jurors' note doesn't change what their verdict would have been had they believed Senser hit a person.

Nelson really has no one here to blame but himself for this problem.  His whole defense strategy revolved around creating the idea that Mrs. Senser thought she hit something other than a person.  Ultimately, it worked, but the jury instructions allowed them to convict Senser, anyway.

I think the lack of an on-record objection from Nelson will likely be the downfall of this appeal, but what is clear is that there was confusion among the jurors.  If this appeal continues down the line to higher courts, I could see a scenario where it is remanded for a retrial due to this apparent confusion.  It's important for jurors to know exactly what they're convicting someone of as opposed to guessing at a moving target.

I doubt this appeals process will end anytime soon.  In the meantime, sentencing of Senser can proceed as scheduled.  If, by chance, the verdict is overturned, Senser would be released from jail and the prosecution would have to set up an entirely new trial.  That would be a HUGE victory for the defense, but such an outcome is still a long ways off (and unlikely to occur).

This case is a great example of why it's important to have a qualified Minnesota criminal defense attorney that you can trust.  If you have been recently charged with a crime, or if you are the subject of a criminal investigation, call or email a Minnesota criminal defense attorney as soon as possible in order to get someone working hard to protect your rights.

As always, no information on the Minnesota Criminal Defense Blog is intended to be construed as legal advice or legal advertising, nor does viewing this website create an attorney/client relationship between the content's author and the reader.  If you are in need of legal advice, stop surfing the internet for answers and speak with a licensed attorney in your jurisdiction as soon as possible.

Wednesday, May 23, 2012

Brooklyn Park Day Care Shooting -- New Developments

I wrote last week about charges being brought against the suspect in the deadly Brooklyn Park day care shooting from early April.  Yesterday, news got out that the reason the suspect, Eddie Mosley, wasn't already in jail for the criminal sexual assault he had recently been charged with was because Wright County (MN) officials decided to simply send him a summons in the mail as opposed to issuing a warrant for his arrest.

As you'll recall from my initial breakdown of the events in question, it was the alleged sexual assault that caused Mosley and a friend to hop in a car and drive from St. Louis, MO to Brooklyn Park in search of the accuser.  Mosley's apparent intent was to murder his 15 year old accuser in an effort to make the charges go away after pleas to the girl's mother (Mosley's half-sister) to convince her daughter to rescind her accusation proved ineffective.

Wright County officials stated that they chose to issue the summons in lieu of the arrest warrant because of the distance between the accused and his accuser.  They felt that the 600 mile buffer, coupled with the fact that the alleged victim was in the care of her mother, provided sufficient protection for the girl.  A prosecutor for the county said that such actions are not uncommon.  This, my friends, is where he's wrong.

Summons are usually only used to notify suspects of charges in minor, non-violent crimes.  When the crime involves an element of violence, such as sexual assault, it is common practice to issue a warrant for the suspect's arrest and file an order for expedition if they live in another state.  This wasn't a traffic violation, shoplifting, or trespassing.  Mosley was accused of raping a 15 year old child.

The penalty for 1st degree sexual assault in Minnesota is not more than 30 years in prison and a $40,000 fine.  The sentencing guidelines suggest a minimum of 144 months in prison, which equals 12 years.  It doesn't take much effort to consider the fact that, facing a penalty as severe as this, a person may do drastic things in order to clear their name.  If someone is depraved and indifferent enough to allegedly commit such an awful crime in the first place, what's to stop them from trying to do something just as depraved and indifferent to cover it up?

I believe that the end result of this will be the dismissal of a number of Wright County (MN) officials, as well as a civil suit against the county for failing to take appropriate measures to protect the well-being of the community.  This isn't something that will go away quietly.  Three innocent people are dead because a dangerous criminal was allowed to come in to court on his own timetable and decided to make a detour on the way.

The worst part of this, in my eyes, is that this incident and the way it was subsequently handled may cause pause in people when considering reporting sexual assaults.  Under-reporting of such crimes is already a problem.  Now, add to the existing issue the fact that the accusers may have to worry about their life if the county they live in decided to simply send a summons to the accused informing him/her of their court date.  The handling of Mosley's sexual assault charge sets a terrible precedent for what is acceptable reactions by court personnel.  It is important that the responsible parties are dealt with swiftly in order to reassure future rape victims that they can safely bring forth their story without the threat of being retaliated against.

If you or a loved one have recently been charged with a crime or are the subject of a criminal investigation, contact a Minnesota criminal defense attorney immediately.  A qualified, dedicated defense attorney can make sure that you do all the right things in your quest to clear your name, and can often help in avoiding charges altogether.  Call or email a Minnesota criminal defense attorney today.

As always, Minnesota Criminal Defense Blog is not intended to be construed as either legal advice or legal advertising, nor does visiting this website create an attorney/client relationship between the author and the reader.  If you are looking for legal advice, my suggestion is to stop surfing the internet for answers and speak with a licensed attorney in your jurisdiction.

Wednesday, May 16, 2012

Brooklyn Park Daycare Shooting -- Murder in the 2nd Degree?

So, as most of you have probably heard, there is a suspect in custody for the April 9th shooting of three people at a Brooklyn Park, MN day care.  A few emails have been trickling in wondering why the charge was for 2nd degree murder and not 1st degree.  I'll go over some of the specifics of the case (they get a bit gruesome, so be forewarned), and then say how I would charge the case if I were the Hennepin County attorney.

This whole incident stems from an accusation of felony sexual assault against the suspect, Eddie Mosley of St. Louis, MO.  Mosley allegedly drove to Brooklyn Park from St. Louis with a friend with the intent to seek out his teenage accuser and kill her in an effort to silence her claims.  (Editorial note:  When your plan for clearing your name from one criminal accusation involves committing another more heinous crime, it's time to reconsider this strategy.  Take a few breaths and regroup.)  Mosley apparently thought that the girl would be at DeLois Brown's day care center before school, so he went there in search of her.  When he arrived, the girl was not at the house.  What happened next is still something of a mystery, but Brown and her parents, James and Clover Bolden, were found murdered in an execution-style manner by a neighbor.  The three were found dead laying on a bed.  Mosley was gone by the time authorities showed up at the scene.

With those essential elements, we can look at how this crime could be charged.  In Minnesota, 2nd degree murder is intentional murder without the element of premeditation.  The maximum sentence for 2nd degree murder is 40 years, and even though there are three counts against the defendant, the sentence would run concurrent to each other.  1st degree murder in Minnesota is intentional murder with the element of premeditation and carries with it a life sentence.  The premeditation is the only element that separates these two crimes.  (Note:  There is an unintentional murder in the 2nd degree statute in Minnesota as well which has the same punishments, but it doesn't apply to this situation, so let's ignore that for the time being.)

An interesting aspect of the premeditation requirement of 1st degree murder is that it's not necessary for you to have intended to kill the person you actually killed.  Minnesota statute 609.185(a)(1) reads:

"(a) Whoever does any of the following is guilty of murder in the first degree and shall be sentenced to imprisonment for life: (1) causes the death of a human being with premeditation and with intent to effect the death of the person or of another;"

In the case of the day care killings, if the police are correct in their assertion that Mosley went to the home with the intent to murder his accuser in another case, that would seem to be sufficient premeditation to warrant a murder 1 charge as opposed to the murder 2 charges currently against him.  Mosley may not have intended to kill the people he ended up killing, but if he indeed did intend to kill someone, than he would be guilty of 1st degree murder.

My hunch is that prosecutors in Hennepin County have made the decision that an initial charge of murder in the 2nd degree is more likely to hold up in court while they continue their investigation of the murders.  It's entirely possible that Mosley will end up being charged with 3 counts of murder in the 1st (I'd even go so far as to call it likely), but perhaps prosecutors were afraid that an initial charge of the harsher crime would result in the suspect being released for lack of evidence.  Since they don't have to include the element of premeditation in their murder 2 charges, it makes it a little easier to charge.  As the investigation continues, if the prosecution comes across more evidence that lends itself to premeditation of murder on the part of the defendant, they can bring the harsher charges at that time.

So, while some people may be upset right now that the man who allegedly murdered three innocent people in cold blood is being charged with "only" murder 2, the case is far from over.  I'll keep an eye on this case as it goes on and give updates from time to time, especially if any changes in the charges occurs.

If you or a love one have been charged with a crime (any crime, not just murder!) or are the subject of a criminal investigation, you need the assistance of a qualified Minnesota criminal defense attorney.  Don't wait for the police to come to your door with handcuffs to call a lawyer.  Speak with one today in order to increase your chances of success in defending your innocence.

As always, none of the material on Minnesota Criminal Defense Blog is intended as legal advice or legal advertising, nor does viewing this website create an attorney/client relationship between the author and the reader.  If you are in need of criminal defense advice, stop surfing the internet and speak to a licensed attorney in your jurisdiction.

Wednesday, May 9, 2012

Traffic Violations -- When You Need a Lawyer

Almost 3 of every 4 phone calls I take are related to a traffic violation of one type of another.  Some of those calls are regarding more serious charges like DWI's and careless/reckless driving, but the vast majority are regarding small tickets, such as speeding tickets and stop sign violations.  One of the questions people ask first is whether or not they really need a lawyer to help them deal with a traffic violation.  I'll try to give some straight forward and honest answers to this question and hopefully help people better understand what a Minnesota traffic attorney can do for them when faced with this type of issue.

If you have been charged with a traffic violation that doubles as a misdemeanor charge (such as DWI, careless/reckless driving, hit-and-run, etc...), you definitely should hire a Minnesota traffic attorney.  Any misdemeanor charge can carry with it a penalty of up to $1000 and 90 days in jail.  These types of offenses also often carry with them license suspensions or revocations, as well.  When you're dealing with penalties this severe, there is no "savings" to be realized by avoiding hiring an attorney.  Call a couple of Minnesota criminal defense attorneys, find one you trust, and let them help you move forward in your case.  It'll be well worth your investment.

As for more minor "petty misdemeanor" tickets, whether or not you really need an attorney depends greatly on your circumstances.  There are only a couple of situations that I encounter where I recommend people hiring an attorney to handle their petty misdemeanor traffic cases.  One situation is when the accused has multiple traffic violations on their record, and adding another would hinder their ability to hold car insurance.  The other is when someone uses their license to earn a living.  Let's look at both of those situations separately.

If you've been saddled with a bunch of tickets in the past 5 years, chances are you've seen an increase in your insurance premiums.  If you continue to pile up tickets, it's possible for your insurance company to deny you further coverage, meaning that you could be out in the cold and be unable to operate your vehicle.  If you are at the breaking point with your insurance (or simply can't afford any more premium increases), having a Minnesota traffic attorney work with you on your case could help you get the ticket lowered to a reduced charge, at the very least.  If you have reason to believe that you were wrongly issued a citation, an attorney can help you fight said ticket in the courts and get you the best deal possible.  By reducing your ticket (or getting it dismissed altogether), a Minnesota traffic attorney can help you keep your insurance premiums consistent, saving you thousands of dollars in the process.

If you are someone who uses their license to earn a living, having a Minnesota traffic attorney could help your cause quite a bit, as well.  Truck drivers, taxi drivers, mail carriers, delivery drivers, and heavy equipment operators all have a vested stake in keeping their license clean.  Tickets can cost you your job, safety bonuses, or the opportunity to find a higher paying position in the future.  A Minnesota traffic attorney can analyze your case to determine whether there are any aspects of your situation that can be challenged.  If no such elements exist, a dedicated attorney can still help you negotiate a deal with prosecution that can lessen the charge you are convicted of and help keep your license pristine.  If you're family depends on you keeping a clean license to survive financially, take the time to speak with an attorney to see what options you have.

So, now that we know who the people are who can benefit from a Minnesota traffic attorney, why is it that the average person with a speeding ticket won't?  Basically, it boils down to finances.  If you've been issued a citation for a petty misdemeanor ticket, don't have multiple other tickets, or have a professional interest in keeping your license clean, hiring an attorney will probably just be an added expense to your case.  The vast majority of speeding tickets are very difficult to challenge.  If you decide to take your ticket to court, there is very little likelihood that the judge will take your word over the police officer's.  There isn't much a lawyer is going to be able to do to change this fact.  The basic ticket in Minnesota costs $128.00.  A Minnesota traffic attorney is likely to charge you at least a couple hundred dollars for their services.  This cost can be justified under some circumstances, but rarely is this the case for your basic traffic ticket.

If you find yourself the recipient of a basic speeding ticket/stop sign ticket/red light ticket, you've got a couple different options.  First, you can choose to pay the ticket online/over the phone/in the mail.  You'll be pleading guilty to the charge on the ticket, but you'll eliminate the chances of having to pay any late fees or penalties for neglecting to pay the ticket.  For all intents and purposes, that ticket will be on your record for five years.  If you receive no further tickets during that period, it's unlikely that your insurance will be effected (assuming you weren't going 40 over the limit).  For most people, this option is easiest, as it doesn't require you to take a morning off work and go down to the courthouse.  However, your second option is to appear for your court date and attempt to challenge the ticket.  Often, the citation you receive will have a court date printed on the ticket.  If it doesn't, there will be a phone number for you to call to get one.  The benefit to taking this path to dealing with your ticket is that prosecutors tend to be willing to negotiate with people who show up.  If you've never been to traffic court before, imagine a zoo without working fences.  People everywhere.  Children running up and down the aisles.  Lines at the clerk's desk to check in.  It's pretty awful.  This actually works in your favor when dealing with a ticket.  The prosecutor has to talk with all of those people before they go in front of the judge.  He's going to do what it takes to get you out of his office as quick as possible.  This could mean reducing your fine, reducing your charge, giving you a payment plan (if the money is an issue for you), or offering you an adjudication which would allow you, through good behavior, to have the ticket removed from your record after a year (while still paying the full fine).  These options are all significantly better than simply paying the ticket and moving on.  If you have the ability to attend your court date for any traffic ticket, take the time to do so.  It could save you big bucks.

If you or a loved one have been issued a traffic ticket and are wondering if there's anything a Minnesota traffic attorney can do for you, call or email one today in order to get the process started.

As always, none of the content on Minnesota Criminal Defense Blog is intended to act as either legal advice or legal advertising, nor does viewing this website create an attorney/client relationship between the author and the reader.  If you have legal questions or are in need of advice, stop surfing the internet for answers and call a license attorney in your jurisdiction.

Thursday, May 3, 2012

Amy Senser Trial: Senser Found GUILTY on 2 of 3 Felony Charges

The Amy Senser hit-and-run saga has come to an end today with the jury on the case coming back with guilty verdicts on the charges of leaving the scene of the accident and failing to immediately report the accident.  Senser was found not guilty on the third felony charge, which was driving in a grossly negligent manner.  State guidelines for the charges Senser was found guilty of recommend a four year prison sentence.  Senser was released on her original bail until her scheduled sentencing on July 9th.

I predicted in this space a little less than a week ago that it would be difficult for the prosecution to get a conviction in this case, and it was nothing but that.  However, the prosecution's theory of the case clearly won over the jury to the point that they decided it simply wasn't reasonable for Senser to be unaware that the object she hit was a person.

For those of you still trying to get caught up on this thing, for Senser to be guilty of the two charges she was convicted on, she had to knowingly leave the scene of an accident that she knew was likely to have caused significant bodily harm or death to a person and fail to report said accident to the police.  The defense theory throughout the case was not that Senser didn't strike the victim with her SUV, but that she had no reason to believe that what she'd hit was a person.

I was obviously not in the jury room during deliberation, but if I had to guess, I would assume that the bottom line for the jury was that the collision was severe enough that it warranted more than a shrug of the shoulders and a "whoopsy daisy" to Senser's husband the next morning.  Photos showed the extent of the damage to the front of the Senser's SUV to be significant.  Senser herself said that the crash was somewhat jarring.  Experts testifying on behalf of the prosecution opined that given the specifics of the crash, Mr. Phanthavong's body would have appeared above the hood of the SUV after contact for at least a moment or two.  Senser testified that her speed at the time of the accident was roughly 50 mph.  When you combine all of these elements, it would be easy to see how the jury could conclude that Senser either had to have known that she hit something significant, or that such an accident at least required her to stop and investigate.

I based my prediction last week on the theory that it would be difficult for the prosecution to prove that Senser knew she'd hit a person without a reasonable doubt due to the lack of physical evidence, witnesses, or testimony stating as much.  In the end, it turns out that they didn't have to.  The prosecution did a great job of painting a picture for the jury that allowed them to put themselves in Senser's shoes and determine what would be a reasonable reaction to a collision of this magnitude.  Clearly, the decided that driving away without giving the incident a second thought did not qualify as "reasonable" in their minds.

The length of jury deliberation was not surprising, given the high profile nature of the case.  You'll often hear the adage that a long deliberation is good for the defense (at least that's what prosecutors say).  Defense attorneys will tell you that the opposite is true; that a long deliberation is indicative of a jury trying to hammer out a conviction.  I'm not sure there's a right or wrong way to look at this, but in this case, my hunch is that most of the deliberation was spent going over the prosecution's expert testimony and deciding whether or not it added up to knowledge.  In the end, it did, and they convicted.

This is a huge win for the prosecution, as they were ridiculed by some (including me to some extent) for their decision to charge so aggressively in this instance.  Criminal vehicular homicide has long been a difficult conviction to get based on the foggy nature of what someone knows and what they don't know.  If any good is going to come out of this, it's that a precedent has not been set that fleeing from an accident isn't going to get you out of trouble.  You can still be convicted of a crime.

The general consensus was that Senser was hiding something by fleeing; either her being intoxicated or her being under the influence of some sort of narcotic due to a headache of which she'd been complaining.  Ultimately, the reasons for her decision won't matter.  It's a good day for Hennepin County prosecutors, and a bad day for the Senser family.

If you or a loved one find yourself charged with a crime or are the subject of a criminal investigation, it is imperative that you speak withe a qualified Minnesota criminal defense attorney as soon as possible.  Don't wait around for police to convince you to say something you shouldn't.  Get the help you need to be successful in your case.

As always, the contents of Minnesota Criminal Defense Blog are intended for entertainment purposes only and are not designed to be legal advice or legal advertising.  The viewing of this website does not create an attorney/client relationship between the author and the reader.  If you are in need of legal advice, stop surfing the internet for answers and speak with a licensed attorney in your jurisdiction.

Wednesday, May 2, 2012

Amy Senser Trial: Jury Deliberations

We're winding down the trial of the year here in Minnesota as the Amy Senser case went was handed off to the jury Tuesday afternoon.  One of the things folks seem most confused about is what, exactly, is the jury deciding?  I'll go through the things the jury must determine real quickly this morning.  If we get a verdict today, I'll post a response to that, as well.

I think one of the most frustrating thing for a lot of people regarding this case is the fact that Senser has stipulated to the fact that she was driving the vehicle that killed Mr. Phanthavong.  I have gotten some emails from people asking me how this admission doesn't end this case and constitute a guilty plea.  The easy answer is that whether or not she killed the victim isn't at trial.  Hitting someone with your car and killing them isn't necessarily a crime.  Crime requires an element of intent or negligence, which isn't necessarily satisfied by the act of killing someone.  Accidents do happen, and getting into an accident isn't a crime.  The alleged crime in Amy Senser's case would be if she knew she hit Mr. Phanthavong, knew that she likely had caused him severe bodily harm (or worse), and made a decision to drive away without telling anyone.  The jury's job is to decide whether she knew she hit a person.  They're not deciding whether or not they think she should have known, or whether she may have known.  This knowledge has to be certain in the eyes of the jurors in order to convict Senser of the first two felony charges (leaving the scene and failing to report).  If they determine that there is a reasonable doubt regarding whether she knew she hit a person, she must be found not guilty of both of these charges.

As for the third charge, gross negligent operation of a vehicle holds a different standard.  The jury would have to decide that, based on the evidence of the case, Mrs. Senser was driving in a manner that would "shock the conscience."  This typically involves driving at an excessive speed, not being in control of your vehicle, weaving in and out of traffic, squealing your tires when you turn, and other things of that nature.  Without any witnesses that saw the accident, it's probably going to be difficult to have enough evidence to get a conviction on this charge.  Amy Senser did testify that she was looking over at a bridge when she was turning onto the Riverside ramp, which would indicate that her eyes were not on the road at the time.  This momentary glance away from the road is at the crux of her explanation of how she failed to see Mr. Phanthavong.  It's possible that the jury could come back and say that this action constitutes negligent driving, but I'm not sure such a decision could withstand a motion for directed verdict by the defense.  Gross negligence is a hard standard to meet, and without further evidence (which we're not getting at this point), it's going to be tough to expect the jury to come back with anything other than a "not guilty" on this charge.

So, in summation, the jury will really be deciding two things.  The first is whether or not Amy Senser knew she hit a person that night.  If they determine that she did, then they must find her guilty of leaving the scene and failing to report.  If they determine that she did not know she had hit a person, then they must find her not guilty of both charges.  Second, they must decide if her driving was so erratic that it would constitute gross negligence.  If they determine that it was, then they must find her guilty of gross negligent operation of a vehicle.  If they determine that it was not or that they do not have enough information to make a clear determination, then they must find her not guilty.

This should be an exciting day at the Hennepin County Courthouse.  If there is a verdict today, stop back here afterwards to read my response and reaction to the case.

If you or a love one have been charged with a crime or are the subject of a criminal investigation, don't hesitate to call a Minnesota Criminal Defense Attorney to help you through your difficult situation.  Hiring a lawyer before charges come, as Mrs. Senser did, can often keep you from saying or doing things that you shouldn't.  Don't try to take on criminal charges on your own.  Call or email a Minnesota Criminal Defense Attorney today.

As always, all content on the Minnesota Criminal Defense Blog is for entertainment purposes, only, and is not intended to be legal advice or legal advertising.  Reading Minnesota Criminal Defense Blog does not create an attorney/client relationship between the author and the reader.  If you are in need of legal advice or legal representation, stop surfing the internet for answers and contact a licensed attorney in your jurisdiction for personalized service.