The Deterioration of Due Process in American Society

Imagine walking down the sidewalk on a sunny fall day.  Leaves are crunching beneath your feet, wind is whistling through the tree branches above your head, and squirrels are chasing around after the few remaining acorns on the ground, preparing for the long winter ahead.  Life.  Is.  Good.

Then, out of nowhere, a police car slides up on the road beside you, activating its lights just as it slows to a stop.  Two officers step out of the car as they pull up to the curb.  Neither officer has anything in their hands.  They don't immediately look over in your direction, but you're the only one on the street, so you assume they must want to talk to you.

One of the officers walk in front of you, stopping you from continuing along your path.  The other stands at a 45 degree angle between you and the street, stopping you from going pretty much any other direction, as well.  The officer in front of you asks to see some identification.  You ask the officer what seems to be the problem.  He simply re-requests your identification, declining to give you any information about why he and his partner have stopped you.  You again ask what this is all about, at which point the officer standing behind you walks up to you, grabs your left arm, twists it behind your back, and forces you down to the ground harshly.  As that officer is putting handcuffs on you, the other officer reaches into your back pocket to remove your wallet.  He takes your driver's license out and takes it with him to the squad car to run a check on you as his partner sits on top of your prone body with his right knee digging into your spine.

The officer with your wallet comes back from the cruiser and tells his partner that you don't have any warrants or priors.  His partner doesn't ease up on your back in the least.  You are finally told that you meet the description of someone accused of breaking the law.  What law would that be, you ask?  You tell that that this is ridiculous.  You've never done anything illegal as far as you know.  They don't listen to you.  They don't respond to your question.  They don't have to.  You're told that you will be heading to jail immediately.  Both officers take every opportunity to rough you up on the way over to the car.  They shove you face first into the back seat.  You smash your forehead against the handle on the opposite side door, opening up a gash above your left eye.  The officer tells you they'll fix it once you're secured in your cell.  You're told to stop complaining or they'll give you another injury to make you forget about your eye.  You keep quiet all the way to the station.

Once you arrive at the jail, you're thrown into a cell by yourself.  You aren't given any time frame for how long you can expect to be there.  You ask when you'll get to see a judge, but aren't given an answer.  2 weeks go by.  No answers.  A month.  Nothing.  6 months.  Nothing.  Finally, after sitting in that cell for over 9 months without going in front of a judge, without being allowed to contact an attorney, without ever being given a chance to call your family and let them know where you are, and without ever being told what you are being accused of doing, the cell door is opened and you're released.  The officer tells you to get out of his site and not to do "it" again.

Sounds like a nightmare, right?  Sounds like something out of a dystopian novel by George Orwell or something, right?  The truth is that many countries around the world operate their justice system under rules of law very similar to the scenario above.  Innocent and guilty are words that mean nothing, because there is no determination of facts.  There is no jury of your peers.  There is no impartial judge presiding over your case.  There is simply you versus the government.  Many other countries have a system of due process ostensibly put in place, but the process is really nothing more than a skeleton with no real substance.  The reason this sounds foreign to us as US citizens is that we are afforded Due Process of the Law by the Constitution of our land.  US Due Process requires that we are given notice of any charges brought against us by the government, that we have an opportunity to grieve those charges, and that we are allowed to appeal the outcome of that grievance if our case is not resolved to our satisfaction.  We can't be incarcerated indefinitely without reason.  We have the right to a trial by our peers.  We have the right to face our accuser.  We have the right to be represented by a lawyer to ensure that our rights are upheld correctly.  All of these things are important tenets of our Due Process system in the US.  They are the reason that the above scenario seems impossible.

Or, should I say, it used to seem impossible.  Slowly but surely, our right to Due Process has been chipped away at in this country, leaving us with more protections than most, but less than we used to have.  A lot of people think this deterioration is a recent thing, but it goes back nearly a century.

After the bombing of Pearl Harbor in 1941, Japanese Americans were placed into Internment Camps as a result of an Executive Order by President Roosevelt that allowed local military commanders to designate certain zones "military areas" and gave those commanders the authority to remove any and all persons from those areas as they deemed it necessary.  Over 100,000 Japanese Americans -- American citizens -- were placed into camps as a result of this order.

Another well-known example of the government placing limitations on due process is the Patriot Act.  This is an act commonly attributed/blamed to/on George W. Bush, but it was actually strengthened and extended by Barak Obama, as well.  The Patriot Act significantly reduced the requirements for searches, seizures, wire taps, surveillance, and other covert acts when they are related to suspected terrorist activity.  This act has, in general, been used to justify the detention and surveillance of foreign citizens, but it has also been used as justification for searching the property and business records of US citizens.  Many of the detainees at Guantanamo Bay are being held indefinitely with no chance of trial under the Patriot Act.

The most recent example of such an infringement is the National Defense Authorization Act (NDAA), which was signed into law by President Obama on December 31, 2011.  The NDAA, in a nutshell, allows the US government to detain US citizens indefinitely without the right to due process if there is reason to suspect that the person being detained is involved with forces who oppose the US or their allies.  This has led to conversations among American decision makers as to whether the NDAA would allow them to target US citizens suspected of having ties to terrorist organizations for drone strikes.  This action would essentially eliminate any due process that citizen is guaranteed under the Constitution and allow for their execution without any formal arrest, trial, appeals, or other remedies.  That's a scary, scary path to consider.

The question that we have to consider is not regarding what has already happened, though.  What we really need to be worried about is where all this is heading.  The only way to truly stem the tide of this trend is to sway public opinion.  Based on the general public reaction to some recent smaller-scale incidents involving the concept of due process, it seems like we are a ways away from that reality.  In three such recent incidents, police officers took matters into their own hands by causing the death of people suspected of crimes.  Eric Garner, Mike Brown, and 12-year-old Tamir Rice have all fallen at the hand of police officers under varying circumstances prior to being given an opportunity to defend themselves in the courts.  While there has obviously been a fair amount of blow-back from the public in response to these issues, most of it has been race-related, not due process-related.  Removing the aspect of "white officer kills black man" from these scenarios still leaves us with a troubling number of people who are of the opinion that if you don't want to risk being killed by police, that you should try not committing a crime or resisting arrest in the first place.

When did we, as a nation, start to feel this way?  That is a tough question to answer.  Ultimately, it is a difficult issue to address.  John Adams, the second President of the United States, once wrote that we should aspire to be "a government of laws, not of men."  The idea behind that thought is that we should be governed by the laws as they are on paper as opposed to being governed by arbitrary decisions of individual government officials.  The further we get from Mr. Adams and his ideals, the further we get from that ideology as a whole.

Now, we seem to be all too quick to make excuses for government officials who make arbitrary decisions that affect life, liberty, and property for our citizens.  We make assumptions that favor the government official.  We hear a police officer describe a situation and take his words as the unimpeachable truth.  We listen to yet another prosecuting attorney tell us how the legal process has spoken as yet another grand jury fails to so much as even indict yet another police officer for causing yet another death to an unarmed citizen, and we nod our head in agreement.  We want the system to work, so we find ways to justify saying that it does.

The only way any of this changes is if we make it change.  Stop looking the other way when our government takes away our freedoms in the name of national security.  Stop justifying police killings by attacking the character and the intentions of the deceased.  Stop assuming that what your told by the government is the way things really are.  Until we can do those things and really look critically at our system, things are just going to get worse.

This is not a black vs. white thing.  It is not a liberal vs. conservative thing.  This is a debate that we should all be on the same side for.  We all want our freedom.  Freedom was what this country was founded upon.  Due process is a concept that keeps us free from arbitrary rule, and we are quietly watching it deteriorate around us.

It's time to make some noise.


As always, the content of this website is intended for entertainment purposes, only, and is not intended to be construed as legal advice or legal advertising.  If you are in need of legal advice, please contact a licensed attorney in your jurisdiction for personalized information.

Avoiding Confrontations with Law Enforcement -- Dos and Don'ts

The issue of confrontations with police officers -- whether physical in nature or involving weapons -- has been a major topic in the news lately.  The Mike Brown shooting in Ferguson, MO is far from the only issue police have had involving violent confrontations, but it certainly was a major rallying point for the public.  There are a lot of questions being asked about how to avoid these terrible situations.  Nobody wants to see continued incidents of violence involving police officers that end in injury or death to citizens.  Police don't want this.  Attorney's don't want this.  The courts don't want this.  But, most of all, the citizens that continue to be the victims in these situations don't want this.  So, what can be done to eliminate these situations?  What can you do, personally, to ensure that you are the next victim of police violence?

In order to figure out what has to be done to fix the problem, we must first understand what is causing the problem.  This is a much more complicated issue than a lot of people realize.  I'm not talking about incidents of violence that are clearly initiated by civilians.  When someone brandishes a weapon at a police officer, they're doing so with the knowledge that they might not come out of this encounter alive.  The incidents I'm referring to are the ones in which unarmed citizens are killed by law enforcement.  People who claim that the issue is overzealous police officers who are too quick to use their service weapons are ignoring that there are always two parties involved in these confrontations.  People who claim that the issue is citizens not respecting the police and acting inappropriately towards them aren't taking into consideration that the penalty for being insubordinate should not be death.  There is no easy answer to this issue, but there are some things that I believe the average citizen can keep in mind when dealing with police officers that can help to diffuse these situations before they explode into violence.  I'm going to give the same advice here that I give to my paying clients.  The following are three general things to remember when confronted by a police officer, and three actions that you can take (or not take) when confronted by a police officer to ensure that the situation doesn't end in tragedy.

THREE THINGS TO REMEMBER WHEN CONFRONTED BY POLICE OFFICERS

1.  Police officers are trained to treat every confrontation with a suspect as a potential life or death situation.  This might be something that seems crazy to the average person, but it's a completely reasonable stance to take for officers.  While the VAST majority of people who have encounters with law enforcement pose no threat to the officer's safety whatsoever, all it takes is for an officer to let his guard down at the wrong time to fall victim to someone who does pose a threat.  Mendota Heights, MN police offer Scott Patrick learned was shot and killed in August of 2014 during what probably seemed like an innocuous enough traffic stop.  Officer Patrick was unfortunate to just happen to stop a motorist who had numerous outstanding warrants for his arrest and was driving a car that was not yet registered to him, making it impossible for Officer Patrick to know who he was about to happen upon.  This is a very real concern for officers, and they often act accordingly in situations that seem routine to the average person.

2.  Police officers don't know you.  We, as citizens, expect to be given the benefit out the doubt when dealing with police, but it's important to remember that the officer (probably) doesn't know you.  Eventually, when they ask for your license and look up your criminal history on their computer, they'll know a little bit about you, but when they first confront you, they have no idea who you are or what you are capable of.  It's important to remember this when first encountering an officer who clearly thinks he/she has business with you.

3.  The majority of police officers are good people.  We tend to hear about the ones who do bad things.  This guy from Minneapolis, or these guys from Saint Paul.  What we don't hear about are all the times officers do amazing things.  Just like I try to remind people that the good lawyers vastly outweigh the slimy ones, the same can be said for police officers.

THREE ACTIONS YOU CAN TAKE (OR NOT TAKE) TO ENSURE YOUR SAFETY

1.  Keep your hands where the officer can see them.  This can be tougher to do than it seems.  Something as benign as putting your hands in your jacket pocket or reaching for your wallet can seem like an aggressive move to an on-edge officer.  Keep your hands out of your pockets, don't reach inside your jacket, don't put them behind your back if you're facing the officer, and don't reach under your shirt or into the waistband of your pants.  If the officer can see your hands, they don't have to worry about what they might be doing, and they'll be much less likely to act rashly due to feeling threatened.

2.  Don't use profanity or call the officer names.  Confrontations with police officers can certainly get heated, but it's important to remember that the language you use can ratchet up the intensity unnecessarily.  By using profanity or using slurs towards the officer, you're telling them that you don't respect their position.  Once an officer doesn't believe you care whether or not he's a police officer, they're going to assume that you'll treat them like you'd treat any regular citizen.  This can cause them to be more short-tempered and have a quicker trigger (no pun intended).  By watching your language and addressing the officer in at least a somewhat respectful manner, you will greatly increase your chances of exiting the situation without a violent confrontation.

3.  Do not go out into public under the influence of mood-altering substances.  This is a really important point that is completely under your control 100% of the time.  I know that people like to go out to bars and have a few with friends, but it's important to keep yourself under control.  A high percentage of violent encounters involving police also involve intoxicated citizens.  By controlling your alcohol intake or not doing any drugs (even marijuana) before heading out into public, you're going to A) improve your decision-making, which will limit the chance that police will have any business with you, and B) decrease the chance that you act inappropriately if you are confronted with the stress that accompanies dealing with law enforcement.  Remaining clear-headed could be the difference between walking away unscathed or getting into a fight with law enforcement that you are not going to win.


My point in writing this advice to everyone is not an effort to deflect blame belonging to police officers for these unfortunate situations that seem to be happening more an more.  In situations where unarmed citizens are killed by law enforcement, the officer absolutely should not escape culpability for the death.  However, we as citizens have to take responsibility for our actions.  If you follow these recommendations, you will decrease the chances of you finding yourself in a violent encounter with a police officer exponentially.

My heart goes out to all those who have lost loved ones in encounters like this.  There are a lot of people in the country who are using this opportunity to demonize law enforcement.  The truth is that we as a society have to play a role in ensuring that no more families have to know the pain of losing a member to violent encounters with police.  The best way for you to do your part is to be respectful and use discretion when dealing with police offers.  Remember that they have a tough job to do, and you being a sullen jerk after being pulled over isn't going to make it any easier.  Police officers aren't perfect, but the majority are out there doing their best.  Keep that in mind, treat them accordingly, and these kinds of preventable incidents will become a thing of the past.


As always, the information presented in this blog is to be used for entertainment purposes only and is not to be construed as legal advice.  If you or a loved one are in need of such advice, please contact a licensed attorney in your jurisdiction for personalized information.

Trial of the Month: Jeffery Trevino Murder Trial

As a Minnesota Criminal Defense Attorney, I like to stay up-to-date on the big upcoming trials in Minnesota.  Clearly, the one to keep an eye on right now is the murder trial of Jeffery Trevino.  If you're not familiar with the name, Trevino is the man accused of killing his wife and then leaving her car in the parking ramp of the Mall of America.  His wife, Kira Steger, was found in early May in the Mississippi River, although Trevino had been charged over 2 months prior to her discovery.

There appears to be the potential for some very emotional testimony from Steger's family members and co-workers during this trial, but the big issue may be how the evidence police found in the Trevino/Steger home is dealt with.  In the complaint, police note that there was blood in the home and evidence of an attempted clean up.  Trevino's defense attorney, John Conrad of Woodbury, MN, has indicated that forensic evidence regarding the couple's home may play a role in Trevino's defense, but has understandably not elaborated on that issue.

Ultimately, it's the forensic evidence that will most interest me about this case.  Any time cases get very scientific, I'm interested to see how juries handle the evidence.  Emotion is a much easier thing for everyday people to understand, so sometimes good scientific evidence is given less weight than powerful testimony by still grieving friends and family.  I'm very interested to see how this case plays out.

As the trial moves forward, I will try to give updates as to how the proceedings are going in this space.  So, if you want to get a Minnesota Criminal Defense Attorney's take on one of the most interesting criminal trials of the year, stay tuned for further details.

If you or a loved one are facing criminal charges ranging from DWI's to serious felonies, hiring a Minnesota Criminal Defense Attorney is of the utmost importance.  Call or email a criminal defense attorney practicing in your jurisdiction today to ensure the best possible defense moving forward.

Missouri vs. McNeely Decision and How it Affects You

In June, the US Supreme Court ruled on a number of cases that had been brought before them.  One of the most visible cases was Missouri v. McNeely.  McNeely is, at its core, a 4th Amendment "search and seizure" case.  I touched on this case last fall, and promised to give updates on its progress, so here we go!

The SCOTUS ruled against the state of Missouri in this case and affirmed the Missouri high-court's decision to throw out the results of blood tests that involve a warrantless blood draw from the suspect in DWI cases.  As you can see by reading my previous post, this is in line with what I assumed would happen.  Allowing law enforcement to forcibly take blood, urine, or breath would give them an unprecedented amount of discretion.  Because the Court ruled in favor of the private citizen, this decision becomes the unequivocal law of the land.  States will have to abide by the ruling set forth in McNeely or be subject to having their decisions overturned by Federal courts.

While this may seem like somewhat of a narrow ruling, nothing could be further from the truth.  I, along with hundreds of other DWI attorneys across the state of Minnesota, are excited about the possible ramifications this ruling will have on DWI law in our state.  Essentially, the general feeling is that the Court ruling that blood samples require either permission from the suspect or a warrant could extend to breath and urine tests, as well.  This would change the process for a DWI arrest immensely and could turn the entire area of law on it's head.

You may be asking yourself, "But, Brodie, won't cops just start calling judges to get warrants on their way back to the station and get permission to take samples that way?"  Maybe, but they're not doing it right now.  Police are not making it their policy to obtain warrants for any kind of BAC sample.  This means that if you are currently facing DWI charges, or if you are arrested in the near future for DWI and the police do not obtain a warrant to take your BAC sample, you may be in line to have your test thrown out and get off scot-free.  If you're in this situation, get yourself an Minnesota DWI attorney right now and allow them to file the correct paperwork to get your challenge of your BAC test rolling.  It's called a McNeely challenge, and attorneys all over the state of MN are filing dozens of them everyday.

As always, the content of this blog is for entertainment purposes only and is not to be construed as legal advice, nor does reading this blog create an attorney/client relationship between the author and the reader.  If you or a loved one are dealing with a DWI charge and are looking for legal advice or representation, contact a Minnesota DWI Attorney as soon as possible.

US Supreme Court to Rule on Warrantless Blood Draws

One of my favorite things to do is read about the criminal cases the US Supreme Court decides to review each year.  While the Court can't rule on the facts of a criminal case, they often will grant certiorari in order to review Constitutional issues that lay within the framework of the case.  Of special concern to me is any cases that involve DWI's, seeing as I handle a large number of those cases.

On September 25th, the Supreme Court announced that they would review the case of Missouri v. McNeely.  This is a case that could have wide reaching implications for anyone who has a driver's license.  The basic facts of the case are that Tyler McNeely was arrested under suspicion of drunk driving.  The arresting officer immediately took McNeely to a nearby hospital in order to get a blood sample from McNeely.  McNeely objected to having his blood drawn, but the officer forcibly took the sample, anyway.

The issue here is whether the officer should have to obtain a warrant to compel the driver to provide a blood sample.  In most states, this is the case.  While implied consent laws revoke drivers' right to refuse a test, they do not revoke one's ability to refuse.  As we've discussed before in this space, you are more than welcome to refuse blood, alcohol, or urine testing at the station, but doing so will result in an additional criminal charge being added to your rap sheet.  Under existing laws, you can only be compelled to have blood drawn if you were involved in an accident that led to damage to property, bodily harm, or the death of another person.  Absent those special circumstances or other exigent circumstances (such as the person suspected of DWI being unconscious and being unable to consent to such testing), law enforcement cannot compel you to give a sample for testing without first obtaining a warrant signed by a judge.  As you can imagine, finding a judge who's willing to read and sign a warrant at 3 am is a difficult task.  For obvious reasons, law enforcement officers would love to have the opportunity to forcibly take blood samples from suspected drunk drivers without first obtaining a warrant.

The crux of the issue is the consideration of the 4th Amendment, which guards against unreasonable searches and seizures.  Determining whether a search and seizure is unreasonable is a balancing test that weighs the level of intrusion towards the suspect against the benefit to the State.  Courts have held that for bodily fluids, tissues, or other internal materials to be obtained absent a warrant, the State must show that there were exigent circumstances that required immediate action.  They must prove that waiting for a warrant would render any subsequent search and seizure moot.  This means that the average DWI offender would not be subject to a warrant-less seizure of blood in order to obtain a BAC under the current precedent.

If the Court finds in favor of Missouri in McNeely, this standard may be completely thrown out.  It would allow states to allow their law enforcement officers to forcibly take blood from anyone suspected of DWI.  This would largely do away with gross misdemeanor refusal charges in Minnesota, but would result in a pretty significant infringement on the expectation of privacy held by the citizens of the state.

Something to consider, however, is that no state would be forced to adopt the Supreme Court's ruling in McNeely if they find in favor of Missouri.  While states cannot enact laws, legislation, or court rulings that limit the rights of people more than federal laws, legislation, and court rulings, they can expand the rights of citizens beyond federal guidelines.  However, Supreme Court rulings usually carry quite a bit of weight in state courts, meaning that judges may be hard pressed to rule against the State in similar cases moving forward.

If you are concerned about the restricting and limiting of individual rights by the federal government, this decision will certainly be one to keep your eye on.  Ultimately, I have a hard time believing the Supreme Court will rule in favor of Missouri and allow law enforcement to forcibly take blood samples from unwilling suspects without first getting a warrant.  Law enforcement has been granted a number of exceptions to the warrant requirement in the past, with most of them revolving around the idea of expediting the search and seizure process in situations where time is of the essence.  Alcohol testing does need to be done as quickly as possible to guard against the BAC falling too far below the level it was at when the suspect was operating the vehicle.  However, most studies show that alcohol in the blood dissipates at a rate of .015-.020 percent per hour.  As such, Minnesota law currently holds that a person can only be charged with DWI if their BAC is measured within 2 hours of their initial traffic stop.  If this ruling is overturned, law enforcement will have a much easier time getting samples from suspects, which will have a huge effect on your rights when pulled over for a traffic violation.

I will give updates on this case when any new information comes out.

As always, the content of this blog is for entertainment purposes only and is not to be construed as legal advice, nor does reading this blog create an attorney/client relationship between the author and the reader.  If you or a loved one are dealing with a DWI charge and are looking for legal advice or representation, contact a Minnesota DWI Attorney as soon as possible.

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.

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.

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.

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.

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.

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.

Amy Senser Trial Update: Amy to Take the Stand

After a weekend of recess from court for Amy Senser, the defendant in Minnesota's most high-profile criminal trial, Senser herself will take the stand today in her own defense.  This move, while not necessarily surprising, will probably be the "make or break" moment in this trial.

Again, Senser is faced with three felony charges stemming from an incident on the Riverside ramp off of I-94.  One is for leaving the scene, one is for failure to call for help immediately, and one is for gross negligent operation of a vehicle.  The first two crimes require the suspect to know that their accident could have reasonably resulted in severe bodily harm or death or another person, whereas the negligence charge does not.  However, for Senser to be found guilty of grossly negligent driving, the prosecution will have to show that her driving would "shock the conscience."  This will be a difficult standard to meet, seeing as there were no witnesses of the accident.  The prosecution did introduce testimony from someone who was trailing Senser on I-94 a few miles before the accident, but ultimately, Senser's testimony will have more to do with this charge than any other evidence.

Senser's testimony will be important because this entire case is based on what she did or didn't know.  If the prosecution can get her to slip up during cross-examination, it could mean a victory for Hennepin County.  Senser essentially has to take the stand in order for her defense (didn't know she hit someone) to even be entered into evidence.  There will be some interesting things to keep an eye on today:

1.  Will the prosecution grill her about her drinking the evening of the accident?
One of the big question marks in this case is whether alcohol was a factor in this deadly accident.  If the prosecution can get Senser to admit to having a few drinks on the night in question, it will turn this into a nearly impossible conviction into essentially a slam dunk.  Don't expect this to be the case, however.  Defense attorney Eric Nelson wouldn't be putting Senser on the stand if she was going to admit to consuming alcohol that night.  She will deny drinking, but how convincing will she be?

2.  How will Amy Senser do when questioned about "getting lost?"
For a person living in Edina who is supposed to be on their way to downtown St. Paul, going west on I-94 in downtown Minneapolis wouldn't be the most efficient path.  Senser explains her unusual route by claiming that she was lost on her way to the Xcel Center and was trying to find her way back onto eastbound I-94.  Senser has lived in the metro for years, so getting lost on the Twin Cities' main drag is a bit surprising.  Her husband, former Viking tight end Joe Senser, already testified that such an event was not out of character for her, but it was hard to tell if he was referring to her actually getting lost or her claiming that she'd gotten lost.  How Senser holds up when pressured on the timeline of that evening will go a long ways towards determining the outcome of this case.

3.  Will Senser be "believable" with her testimony?
So much attention gets put on what people say as opposed to how they say it.  The true test of any witness is whether they can get the jury to buy into their story.  Senser's biggest challenge will be to keep her story consistent, stay even-keeled, and to avoid embellishing on the questions asked of her.  The worst thing a defendant on the stand can do is answer more than the questions asked.  This is probably the biggest benefit to hiring a Minnesota criminal defense attorney when facing criminal charges of this nature.  A good lawyer will prepare you for what you can expect while you're on the stand and can get you ready to be successful when the questions get intense.

Monday is sure to be an exciting day in the Amy Senser criminal vehicular homicide trial.  We should know a lot more about her chances of earning an acquittal after she steps down either today or tomorrow.  If you've got any questions regarding the case, you can leave them in the comments section or you can shoot me a line via email.  I can't promise I'll be able to respond to every email or comment, but I'll surely do my best.

If you or a love one are dealing with criminal charges or are the subject of a criminal investigation, don't wait too long to speak with a Minnesota criminal defense attorney.  Minnesota criminal defense attorneys can help you get your defense on the right track from the start so you have the best chance to be successful.

As always, all material on Minnesota Criminal Defense Blog is intended to be for entertainment purposes, only.  It is not intended to be construed 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 seeking legal advice, contact a licensed attorney in your jurisdiction to get the specialized legal service you require.

Knowing Your Rights, Part 4: Stopped on the Street

Welcome to the final installment of this series intended to examine your rights when speaking with police officers in different situations.  In previous installments, we've looked at what you do and don't have to do during a traffic stop, when the police come to your front door, and when you meet with officers at the police station.  This week, we'll take a look at your rights when stopped while walking on the street/sidewalk.

As a general rule, police don't stop people on the street just to have a chat about something.  If you're stopped by an officer while walking down the sidewalk, chances are they suspect that you have either committed a crime, are currently committing a crime, or are about to commit a crime.  This changes the dynamic of your meeting, in that you need to be a little more on guard in this situation than you do when police come to your home.  Similar to a traffic stop, you need to assume you're being investigated in regards to a crime, and subsequently, you need to act accordingly.

Just like in other the other situations we've covered, you're under no obligation to speak with police if they stop you on the street.  You never have to answer an officer's questions other than to give him or her your identifying information.  The big difference when you've been stopped on the street when compared to the other scenarios is that a Supreme Court case called Terry v. Ohio.  The case sets legal precedent that officers can engage in custodial searches of criminal suspects on the street that included a pat down of their outer clothing and the removal of any potential dangers they discover.  If this sounds pretty broad to you, that's because it is.  There are specific circumstances that must be realized in order for the officer to have this power, but they aren't very stringent.  Basically, if the officer has a reasonable suspicion that the suspect may have a weapon on his person, he's allowed to conduct the search.  This "reasonable suspicion" can be founded based on the experience of the officer, the observations he's made, the behavior of the suspect, or any other number of things that don't have very strong roots.

Personally, I feel that Terry represents a pretty significant infringement on the rights of US citizens.  It gives officers a right to a search that is less restrictive than the right the courts have to issue a search warrant.  The reason it exists is noble.  It is intended to make a dangerous job safer.  Police officers must always be vigilant and aware of the presence of a weapon for obvious reasons.  Allowing them this search privilege is intended to reduce their chances of being hurt (or worse) while questioning a suspect.  I don't have any facts or figures as to whether this aim has been successful, but it certainly has good intentions.

The problem, as I see it, is that this "reasonable suspicion" doesn't have to be based in much fact.  It's difficult to get the results of a search conducted subsequent to a Terry stop.  The reason for this is that the discretion of police officers is rarely questioned by the court when the issue involves protecting their safety.  This, again, is a noble theory, but the end result is that a lot of otherwise inadmissible evidence is allowed due to this decision.

What this means for you is that if the officer decides to pat you down when he stops you on the street, you don't have much to say about it.  The best thing to do if this occurs is to simply comply with the orders of the officer and allow the search.  If the rationale for the search is poor, any evidence found can be challenged in court by your Minnesota criminal defense attorney.

One of the biggest issues people face when stopped by police in this fashion is that it's hard to know whether or not they're being detained.  If you face this quandary yourself, this is a great time to break out your "am I free to leave?" question.  We talked about this tool when discussing your rights down at the station, but they hold equally well, here.  If you are not under arrest and are not being detained, you have every right to leave.  If you're not free to leave, then you shouldn't be speaking with the officer.  It's a simple concept that becomes hard to execute when you're in the moment.  Knowing what you do and don't have to say is a huge advantage in this situation.  By determining whether you are free to leave, you will better understand the motives of the officer and be able to more effectively protect your rights.

(Quick aside:  Traffic violations are essentially all Terry stops as well.  What this means is that if an officer has a reasonable suspicion that you are carrying a weapon when he stops you in your vehicle, the same search rules apply.  When dealing with a vehicle, the officer is also authorized to check the passenger compartment for weapons.  This gives him access to your center console, glove box, the compartments in your doors, and under the seat.  If any of these compartments are locked, he no longer has access to them.  The point of giving him access is to take away your access to weapons.  If the compartments are locked, you couldn't exactly quickly grab something from these places.  So, this privilege extends to the vehicle, as well, but is most commonly exercised in on the street stops.)

So, to recap, police stops of pedestrians are usually a little more purposeful than other interactions.  They aren't stopping you to shoot the breeze.  They likely have a suspicion that you were, are, or are going to be involved in the commission of a crime.  You are required to identify yourself to the officer, but are not obligated to say anything else.  This included saying where you are going, where you just came from, what you are doing, or anything of that nature.  If the officer continues to question you after you've told him you'd prefer not to answer any questions, ask the officer if you're free to leave.  If he says you are, take the opportunity to do so.  If he says you are not, then politely tell him that you will not speak to him without a Minnesota criminal defense attorney present.  If he has reasonable suspicion that you have a weapon, he will be able to pat you down and search your clothing.  You should comply with this search and worry about what he may find later.  As with any other situation, it's important to remain polite and courteous with the officer at all times.  Being difficult and disrespectful will get you nowhere.

So, if you are stopped on the street by a police officer and are detained, or if you believe that further investigation may follow, contact a Minnesota criminal defense attorney immediately in order to best serve your interests.  Many times, by contacting a lawyer before being charged with a crime, your lawyer can advise you in a way that will avoid any charges ever being brought.  It's impossible to call a lawyer too soon when dealing this these kind of issues.  Take care of yourself and get someone in your corner making the right decisions.

As always, the content of this website is not intended to act as legal advice or legal advertising, nor does the viewing of it create an attorney/client relationship between the author and the reader.  If you or a loved one are in need of legal advice, contact a licensed attorney in your jurisdiction for specialized legal advice.

Amy Senser Trial Continues...

Since writing about Amy Senser's trial before it began last week, I've been getting a few emails from people with questions regarding the actual trial itself.  I thought I would touch on a few of these quickly today before sending out the final installment of the "Know Your Rights" series tomorrow.

Again, my opinion on this trial is just that; opinion.  I have no inside information about the case.  I do not know Eric Nelson (Senser's defense attorney), nor do I know the prosecutors on the case.  I'm simply looking at this from the point of view of a Minnesota criminal defense attorney and opining on it as I see fit.

I've been getting emails for the past 2 days regarding the strategy behind Joe Senser's testimony.  A few people have noted to me that his testimony seems to be against his wife as opposed to in favor of her.  I'm not so sure this is the truth.  Some of his testimony this morning (4/26) may seem a bit peculiar, but it appears to be very carefully crafted, to me.  He testified that his wife is "fiercely independent" and that it was not uncommon for her to get lost/flake out/do her own thing.  This sounds like he's ripping on his wife, but what he's really doing is helping her to make the case that she just didn't know what had happened.  If she's a cold, calculating, reliable person, it makes it harder for the defense to suggest that she simply didn't know that she hit a person with her vehicle that night.  By painting her as an aloof, self-serving, flaky person, the defense can more easily make the claim that she didn't have actual knowledge that what she hit was a person, nor would she have considered stopping to investigate.  Remember, the issue at trial isn't whether she hit the victim.  The issue is whether she knew she hit the victim.  Joe Senser's testimony isn't going to do his wife any favors in regard to the negligence charge against her (inattentiveness is not a defense to negligence), but it will help her in the charges against her regarding leaving the scene of an accident which she knowingly may have resulted in significant bodily harm or death to another person.

Joe Senser's Wednesday testimony did even more to help her wife, despite his claim that he "knew" that she had hit more than a traffic barrel.  Joe Senser's understanding of the situation is, again, not what is at issue.  His testimony furthered the theory that Amy Senser was adamant that she couldn't have struck a person.  She was steadfast in her claims to her husband that she hit construction equipment, even after seeing a report on television of the deadly accident.  His skepticism aside, his recounting of her reaction to the incident lends to the defense's case.  So, while Joe Senser's testimony may not shine the most flattering light on his wife's personality, it has gone a long way towards helping Amy Senser and her attorney poke holes in the prosecution's case.

The most difficult thing for any prosecutor to prove is the intent/knowledge of a defendant.  It's not always that difficult to prove that a certain event occurred, but a major element of nearly every criminal charge is mens rea, which is Latin for "guilty mind."  In the Amy Senser trial, the mens rea necessary to prove is that Mrs. Senser knew she hit a person and made a conscious decision to leave the scene and continue driving.  The strategy of the prosecution has been to use circumstantial evidence to piece together the events of the evening and make an appeal to the jury to put themselves in Amy Senser's shoes.  Basically, they want the jury to ask themselves "If I was driving 50 mph and struck a person, wouldn't I know that I did it?"  The psychology behind this is that people (in general) like to rate themselves against others.  If you can get them to put themselves in the shoes of Amy Senser, they're going to want to believe they would have acted properly in this situation.  You want them to think "I would have stopped," or "I wouldn't have hit the person in the first place."  If the prosecution can accomplish this goal, they greatly increase their chances of getting a guilty verdict.

With the trial winding down, I suppose it's time to offer up my opinion on how things will end.  I believe that it's going to be difficult for the prosecution to prove beyond a reasonable doubt that Amy Senser left the scene of an accident that she knew resulted in the severe bodily harm or death to another person.  I think the circumstantial evidence is impressive, but ultimately, circumstantial evidence doesn't usually win trials.  Without a witness who can testify to her knowledge, all the prosecution has is circumstantial evidence.  The appearance of the vehicle, the missing text messages, the failure to pick up her daughter, and her erratic behavior following the incident likely won't be enough to slam the door on this case.  I think Mrs. Senser is acquitted of all three felony charges against her.  If she is convicted of anything, it will be the gross negligence charge.  Negligence is always an easier charge to get to stick because it is so all-encompassing.  I think the task in front of the prosecutors is just a little too daunting.  I believe their strategy has been sound throughout, but I feel like this specific charge is extremely difficult to prove.

Amy Senser isn't the only person in this state facing criminal charges.  If you or a loved one have been charged or may soon be charged with a misdemeanor, gross misdemeanor, or felony charge, do what Amy Senser did and call or email a Minnesota criminal defense attorney to get someone on your side.

As always, content on the Minnesota Criminal Defense Blog is not intended to be viewed as legal advice or legal advertising.  Use of this website does not create an attorney/client privilege between the author and the reader.  If you are in need of legal advice, call or email a Minnesota criminal law attorney to get personalized advice tailored to your exact situation.

Amy Senser Trial Update

We'll take a break this week from the series on your rights, finishing that up next week with your rights when police stop you while on foot in public.  In the mean time, I want to take a quick peak at the Amy Senser trial in Hennepin County in light of the flurry of activity with that case in the past couple days.

I had an article almost completed yesterday on the surprising ruling by the judge in the case that would have allowed the prosecution to use Senser's unwillingness to speak with investigators against her in trial.  It was a very odd ruling and was against most precedent on the subject.  The 5th Amendment of the Constitution protects us from self-incrimination.  It gives us the right to decline to speak with law enforcement officials in order to protect our interests.  However, as I was about to start writing my final paragraph, I took a quick constitutional over to the Star Tribune's website, only to see that the judge had reversed his ruling and had allowed the motion by the defense to preclude the prosecution from using Senser's silence against her.  As an advocate of justice, I was pleased.  As a writer who had spent the better portion of my morning researching the precedent behind the ruling and the consequences of such a decision, I was a little bitter that my hard work was for naught.  Either way, Thursday was an important day in the Amy Senser trial.  Here are a few of the big decisions made by the judge regarding motions made by both the defense and the prosecution.  I won't go through all 16 of them, just three that I found particularly important.

1.  The defense's motion to disallow the prosecution from using Amy Senser's silence as incriminating evidence was ultimately upheld.  What this means is that the old adage of "what you say can and will be used against you in a court of law" doesn't hold up to what you don't say.  This isn't anything new.  Any attorney worth his or her salt would have instructed Mrs. Senser to refrain from contact with investigators.  This was a case in which there is a dearth of concrete evidence.  There is a lot of circumstantial stuff that points to Mrs. Senser's guilt, but without her statements to bind everything together, I think it's going to be very difficult for the prosecution to prove that she knew she hit Mr. Phanthavong.  Her knowledge of having hit a person is necessary to create the duty for her to stop and attend to the victim.  By not allowing into evidence the fact that Mrs. Senser didn't speak with investigators, it takes away the theory that her silence has been intended to hide something.  This is important for the defense in a case that will be built so much around what the prosecution can prove, not what the defense can disprove.  I think the judge's reconsideration of this motion was clearly the correct ruling.  It's good that he was able to realize his mistake before this went to trial.  Such an error would have given the defense a clear issue to appeal upon a guilty plea.  Kudos to the judge for doing the right thing and reversing his initial decision.

2.  A motion to prevent the defense from introducing evidence that Mr. Phanthavong had a large amount of cocaine in his system at the time of his death was upheld.  This isn't a surprising ruling.  Such evidence would be more useful to the defense in a civil trial, where they could argue that the victim was guilty of contributory negligence, which would lessen the culpability of Mrs. Senser.  In a criminal case, however, such evidence would clearly be prejudice against the prosecution.  Whether Mr. Phanthavong had cocaine in his system does not change the alleged actions of Mrs. Senser.  If she indeed knew that she hit a person on that night, the condition of the person has nothing to do with her decision to flee the scene.  The only purpose for such evidence would be to prove that the accident itself was not the fault of Mrs. Senser, but since that fact isn't at issue in this trial, the prejudicial effect of such evidence outweighs its exculpatory elements.

3.  Judge Mabley has agreed to allow the prosecution to show video clips of vehicle-pedestrian accident recreations.  Not having seen the actual video, I can't comment on its content.  I can say, however, that recreation videos like this are typically the bane of defense attorneys' existence.  They tend to be incredibly prejudicial towards the defense and paint the picture the prosecution wants painted.  Senser's attorney, Eric Nelson, has said that he feels the clips do not accurately depict the crash scene.  The prosecution, on the other hand, says that the videos are intended only to bolster the credibility of a specific expert witness they plan to call and that it should be viewed by the jury in that limited scope.  I understand the point made here by the prosecution, but I can assure you that it is nearly impossible to tell something to the jury but inform them only to consider it through a limited lens.  Once the jury learns something, it colors the way they think about the case in its entirety.  However, I assume that Judge Mabley took into consideration any prejudicial affect these videos could have and weighed that against their necessity.  I will say that this is something to keep an eye on during the trial.

There were numerous other motions ruled on by Judge Mabley, but most of them were either pretty straight-forward or inconsequential.  This thing is close to getting very interesting, however, as the trial won't be too much farther down the road.  I'll keep adding commentary to the proceedings as it moves along, as this case interests me greatly.  As a defense attorney, it's always useful to get a high-profile case to follow in order to get some insight into how other lawyers handle certain situations.  In our profession, you either continue to learn new techniques or you become obsolete.  I'm excited to see how everything plays out in this trial.

If you or a loved one find yourself in the middle of a criminal investigation, you should follow Amy Senser's lead and contact a Minnesota criminal defense attorney before you offer any information to law enforcement.  Doing so could be the difference between innocence and guilt.

As always, the contents of this blog are not intended to be legal advertising, legal advice, nor does the reading of this information create an attorney/client relationship between yourself and the author.  If you are in need of legal advice, stop browsing the internet for information and get on the phone with a qualified Minnesota criminal defense attorney.  Your situation is unique and you should treat it as the serious threat to your liberty that it is.

Know Your Rights, Pt. 3: At the Station

Welcome to part three of my four part series that examines and explains your rights while talking to police in different settings and situations.  If you haven't read parts one or two yet, you can find out what you should and shouldn't do when you're pulled over in your vehicle and when police show up at your home.

While traffic stops may be the most common type of interaction between citizens and law enforcement, and home visits may be the most invasive, being asked to accompany officers to the police station for questioning is probably the most frightening.  Whenever someone is in an enclosed room with police, being questioned about their knowledge of or their role in a crime, tensions are sure to be high.  The key to being successful in this scenario is knowing your rights and exercising them as necessary.  This entry will walk you through the situation and give some helpful hints along the way.

(A quick aside:  While reading this post will surely better equip you to deal with being questioned by police, it is my professional advice that you never attempt to handle this situation on your own.  Call a Minnesota criminal defense attorney to accompany you to the station and sit with you during questioning.  You may think the Q&A session is going to be cordial, breezy, and non-confrontational, but things could turn quickly.  Detectives are very good at hiding their intentions during questioning for as long as possible.  Their job is to make you feel comfortable enough to tell them what they want to hear.  The best way to make sure you aren't lulled into a false sense of security is to have an experienced lawyer by your side to keep vigilant for you.)

This situation starts like this:  You're having your conversation at your front door with Officer Friendly when he gets frustrated by your refusal to allow him in and is tired of standing in the cold.  He tells you that he thinks this would go a lot easier down at the station.  He even offers to give you a lift in his squad car.  What should you do?

First and foremost, unless he's ready to arrest you, you have no obligation to go to the station to answer any questions.  You may certainly choose to do so, but you are not required to go with the officer.  He may phrase the request as a statement by saying something along the lines of "Why don't we hop in the car and head down to the station to finish this up."  Don't be fooled by the officer's wording.  Unless he's ready to slap cuffs on you and arrest you for committing the crime, he is asking you if you'd like to go with him.  As always, being polite is important here, but be firm in your decision.  The officer will use different techniques to try to convince you to come with him.  Be strong.  If you don't want to go, don't go.

If you don't mind going to the station to speak with police, it's completely acceptable to head "downtown," so to speak.  There are a few things I would recommend before agreeing to this, however.

1)  Refuse to ride with the officer.  If he gives you a ride down there, he (or someone else) is going to have to drive you back.  Take your own vehicle so that if at any point you become uncomfortable with the line of questioning you are 100% free to leave.  You're free to leave the station at any point as long as you're not being detained, but if you don't have means of transportation at your disposal, you're at the mercy of whether the officer feels like returning you home.  He's under no obligation to do so.  Avoid the walk of shame.  Follow the officer in your car instead of riding with him.

2)  On the way to the station, contact an attorney.  Have the number to a local, qualified criminal defense lawyer before you leave the house and make the call while on the road (doing so within the law in your jurisdiction, of course).  Tell the attorney the situation, that you're heading downtown to answer questions right now, and find out whether he or she will be able to meet you there if anything unforeseen happens.  The attorney may offer to meet you down there immediately.  Whether or not you decide to agree to this is up to your best judgment, but having a lawyer by your side the whole time couldn't hurt.  You'll pay for this time, but if it keeps you from saying something incriminating or answering a question you really should answer, it'll be well worth it.

3)  As long as questions remain focused on what you heard, saw, or have been told regarding the incident in question, you should feel free to answer questions.  If, however, questions turn to queries regarding your whereabouts on the day in question, whether you have any actual knowledge of the incident, or whether you were involved in the crime, it's time to clam up.  The only reason an officer would ask questions like this is if they have reason to believe you were involved, or they are looking for a reason to believe you were involved.  In either case, it's best not to confirm their suspicions.  If your lawyer isn't present, state to the officer that you won't be answering any more questions for him or any other officer unless you are in the presence of your attorney.  If your attorney is not available at that moment, ask the officer if you are free to leave.  If he says that you are, get up and walk out the door.  Your conversation with police is over for now.


The main thing to remember in this situation is that giving your side of the story isn't going to save you from anything.  In the history of time, I'm not sure a suspect offering his account of the situation has ever prevented anyone from being charged with a crime.  If the police have enough evidence to charge you, they will.  Nothing you say will change their mind.  The only effect talking will have is to give them extra ammunition with which to support their charge and the prosecutions case against you.  Why give them that?  By demanding your Minnesota criminal defense attorney be by your side during any questioning sessions, you ensure that you will have the guidance to help you avoid saying something you shouldn't.  I know that, since most people are law abiding citizens, having an attorney present any time you speak with police seems like overkill.  Trust me, you won't hold that belief for long once you've been through the ringer.  Most people think talking to police is no big deal, but when folks get in front of an authority figure who is speaking to them in an accusatory manner, that confidence can go out the window quickly.  Having an attorney who has been through this process time and time again will be a huge assist in the process.  Don't let your pride get in the way of your rights.

If you or a loved one choose to go to the police station to speak with detectives regarding a crime, call or email a Minnesota defense lawyer and ask for their assistance.

As always, all material contained within this website is intended for entertainment purposes, only.  It is not intended to act as legal advice or advertising, and in no way does it create an attorney-client relationship between the author and the reader.  If you have questions regarding a criminal law matter, contact a criminal defense attorney in your jurisdiction to give you specific assistance.

Coming Monday, April 16th:  Know Your Rights, Pt. 4:  Stopped in Public