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.
Read along as an attorney with The Law Office of Brodie Hacken takes you through their thoughts on Minnesota criminal defense, current cases, watershed decisions, and some fun facts and figures regarding criminal defense.
Showing posts with label criminal defense. Show all posts
Showing posts with label criminal defense. Show all posts
Tuesday, December 16, 2014
Monday, December 1, 2014
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.
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.
Tuesday, August 13, 2013
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.
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.
Thursday, April 26, 2012
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.
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.
Monday, April 9, 2012
Know Your Rights, Pt. 2: At Your Home
Today, we'll continue on with our dissection of your rights regarding contact with the police. Last week, we kicked this series off by look at what you have to do and what you don't have to do when pulled over in your vehicle. Today, we'll examine the less common but more "fraught-with-potential-disaster" situation of police showing up at your home in an effort to speak with you. Again, keep in mind, this information is intended to be used only as a rough guideline to use if you're put in a situation like this. If you encounter a situation where police show up at your home to speak with you about your involvement in a crime or your knowledge of a crime, the best thing you can do is contact a Minnesota criminal defense attorney immediately in order to best protect your rights.
We'll set the stage. You're at home on a lazy Thursday evening preparing dinner and watching your favorite television program (maybe "Family Feud with Steve Harvey") when, all of a sudden, there is a loud knock at your front door. You walk over to the door, look through the peep hole, and see two uniformed police officers standing on the other side. At this point, you're mind is racing. "What could they want?" you wonder. Every little misdeed you've ever committed is now at the forefront of your mind. Startled and vulnerable, you open the door. (Note: You're not required to open the door. You can tell them through the door that you'd prefer to not open it for them, but unless you've got marijuana smoke billowing out of your front door or something like that, just open the door.)
You greet the officers with a simple "Good evening." They ask if you are you, to which you reply "yes." The officer on your left (who's clearly in charge of this show) tells you that they're investigating a break-in that occurred down the street a couple of nights ago and were wondering you could answer a few questions for them. This is the beginning of when you need to be vigilant regarding your rights. What you tell the officers will be used by them to attempt to solve the mystery of the break-in. Whether or not you are a suspect in the crime doesn't matter. The job of police is to solve crimes, and if you give them a reason to wonder whether you were involved, they will.
Your response to their initial questions should be something along the lines of "I'm not sure I'll be of much assistance to you, officers, but I'll do my best to help." Police have a tough job, and offering to help them in any way you can will go a long ways. Whether you are a suspect or not, it's likely that you will be asked if the officers can come inside. You do not have to let them into your home, so it's completely up to you whether you choose to allow them in. There are two reasons officers want to come inside to question you. One is comfort, both theirs and yours. Sitting on your couch and talking is much more comfortable than standing outside in the cold to speak with you. You will probably be more comfortable, as well, because sitting in your living room with the police is a lot less intimidating than going to the station to give a statement. The second reason is that by gaining entrance to your home, the officers will have the opportunity to look around and see if any of the missing items from the burglarized house are in your home. I know the odds seem small that the actual thief would be dumb enough to leave stolen materials laying around their house, but you'd be surprised. Police don't use this trick because it's a waste of time. Even if you aren't the person who broke into the house in question, it's possible that you have the same television, pewter picture frame, or Target-issue lamp that the victims had taken from them. You can save yourself the hassle of proving that your property is, indeed, your property by just telling the officers that you're perfectly comfortable speaking in your doorway.
By talking to the officers at your doorstep, you might encourage them to be a little quicker with their line of questioning. If it's cold or there's precipitation falling, they likely won't take too much of your time. Unless you're a suspect, it's unlikely they'll ask you to accompany them to the station to speak, but we'll get to that scenario on Wednesday. For the time being, offer to speak to them at the doorstep. If you'd be more comfortable speaking with the door chain connected, feel free to do so. Do not walk outside and don't let them inside.
Now, once they start asking questions, it's very important to listen carefully to what kinds of things they are asking you. If, in your opinion, the questions they are asking you are intended to determine your level of involvement in the crime they are investigating, you should refuse to answer any more questions without your attorney present. Questions that should trigger this concern are things like "where were you the night of...," or anything that seems overly broad. If they ask something like "Do you know anything about the burglary?" you need to be wary about how long of an answer you give. This type of questions encourages the questioned party to offer up a lot of information without a specific path. The best thing to do is to keep your answers to any questions short to avoid offering up information you didn't intend to disclose.
If the officers are asking questions like "Did you see or hear anything out of the ordinary" or "Have you noticed any suspicious people in the neighborhood in recent days," it's unlikely they consider you anything other than a potential witness. Many times, people witness a crime without even realizing it. Police know this, so they ask these kinds of questions to see if you noticed something that you didn't realize might be connected with the crime. Feel free to answer these questions.
If you are the focus of a criminal investigation, the officers might not be so friendly. If the officers really want entrance into your home, they will say a lot of things to try to get you to consent. It's much easier for them to get permission to enter than it is for them to go to a judge and get a warrant. They'll say things like "This will go a lot easier if you just let us in," "We just want to ask you a few questions. You don't have anything to worry about," or "If you don't let us in, we'll just go get a warrant and try this again." Remember that no matter what the police say to you, they don't have the right to enter your home without your permission unless they have a warrant. Tell them to get the warrant and then come back. Again, if they want to talk to you bad enough, they will ask you to come with them to the station. I'll tell you what to do in that situation on Wednesday.
If the police just want to know if you saw anything that could be useful to them, the conversation will likely be pretty quick. If they are investigating you to determine if you had any involvement in the crime, it may be a more lengthy conversation if you allow it to continue. Again, if you believe that the line of questioning being utilized by police is an attempt to build a case against you or support a charge against you, refrain from answering any further questions and contact a Minnesota criminal defense lawyer immediately. Even if you KNOW you are not responsible for the crime in question, this won't protect you from being charged, or even from being convicted. Don't leave your freedom up to chance. Contact your local Minnesota defense attorney to make sure you are protected.
As always, none of the information contained within this article is intended to act as legal advice or advertising. Minnesota Criminal Law Blog is intended to be used for entertainment purposes only. If you are in need of legal advice or representation, stop looking to internet articles for answers and call or email a Minnesota criminal law attorney today.
We'll set the stage. You're at home on a lazy Thursday evening preparing dinner and watching your favorite television program (maybe "Family Feud with Steve Harvey") when, all of a sudden, there is a loud knock at your front door. You walk over to the door, look through the peep hole, and see two uniformed police officers standing on the other side. At this point, you're mind is racing. "What could they want?" you wonder. Every little misdeed you've ever committed is now at the forefront of your mind. Startled and vulnerable, you open the door. (Note: You're not required to open the door. You can tell them through the door that you'd prefer to not open it for them, but unless you've got marijuana smoke billowing out of your front door or something like that, just open the door.)
You greet the officers with a simple "Good evening." They ask if you are you, to which you reply "yes." The officer on your left (who's clearly in charge of this show) tells you that they're investigating a break-in that occurred down the street a couple of nights ago and were wondering you could answer a few questions for them. This is the beginning of when you need to be vigilant regarding your rights. What you tell the officers will be used by them to attempt to solve the mystery of the break-in. Whether or not you are a suspect in the crime doesn't matter. The job of police is to solve crimes, and if you give them a reason to wonder whether you were involved, they will.
Your response to their initial questions should be something along the lines of "I'm not sure I'll be of much assistance to you, officers, but I'll do my best to help." Police have a tough job, and offering to help them in any way you can will go a long ways. Whether you are a suspect or not, it's likely that you will be asked if the officers can come inside. You do not have to let them into your home, so it's completely up to you whether you choose to allow them in. There are two reasons officers want to come inside to question you. One is comfort, both theirs and yours. Sitting on your couch and talking is much more comfortable than standing outside in the cold to speak with you. You will probably be more comfortable, as well, because sitting in your living room with the police is a lot less intimidating than going to the station to give a statement. The second reason is that by gaining entrance to your home, the officers will have the opportunity to look around and see if any of the missing items from the burglarized house are in your home. I know the odds seem small that the actual thief would be dumb enough to leave stolen materials laying around their house, but you'd be surprised. Police don't use this trick because it's a waste of time. Even if you aren't the person who broke into the house in question, it's possible that you have the same television, pewter picture frame, or Target-issue lamp that the victims had taken from them. You can save yourself the hassle of proving that your property is, indeed, your property by just telling the officers that you're perfectly comfortable speaking in your doorway.
By talking to the officers at your doorstep, you might encourage them to be a little quicker with their line of questioning. If it's cold or there's precipitation falling, they likely won't take too much of your time. Unless you're a suspect, it's unlikely they'll ask you to accompany them to the station to speak, but we'll get to that scenario on Wednesday. For the time being, offer to speak to them at the doorstep. If you'd be more comfortable speaking with the door chain connected, feel free to do so. Do not walk outside and don't let them inside.
Now, once they start asking questions, it's very important to listen carefully to what kinds of things they are asking you. If, in your opinion, the questions they are asking you are intended to determine your level of involvement in the crime they are investigating, you should refuse to answer any more questions without your attorney present. Questions that should trigger this concern are things like "where were you the night of...," or anything that seems overly broad. If they ask something like "Do you know anything about the burglary?" you need to be wary about how long of an answer you give. This type of questions encourages the questioned party to offer up a lot of information without a specific path. The best thing to do is to keep your answers to any questions short to avoid offering up information you didn't intend to disclose.
If the officers are asking questions like "Did you see or hear anything out of the ordinary" or "Have you noticed any suspicious people in the neighborhood in recent days," it's unlikely they consider you anything other than a potential witness. Many times, people witness a crime without even realizing it. Police know this, so they ask these kinds of questions to see if you noticed something that you didn't realize might be connected with the crime. Feel free to answer these questions.
If you are the focus of a criminal investigation, the officers might not be so friendly. If the officers really want entrance into your home, they will say a lot of things to try to get you to consent. It's much easier for them to get permission to enter than it is for them to go to a judge and get a warrant. They'll say things like "This will go a lot easier if you just let us in," "We just want to ask you a few questions. You don't have anything to worry about," or "If you don't let us in, we'll just go get a warrant and try this again." Remember that no matter what the police say to you, they don't have the right to enter your home without your permission unless they have a warrant. Tell them to get the warrant and then come back. Again, if they want to talk to you bad enough, they will ask you to come with them to the station. I'll tell you what to do in that situation on Wednesday.
If the police just want to know if you saw anything that could be useful to them, the conversation will likely be pretty quick. If they are investigating you to determine if you had any involvement in the crime, it may be a more lengthy conversation if you allow it to continue. Again, if you believe that the line of questioning being utilized by police is an attempt to build a case against you or support a charge against you, refrain from answering any further questions and contact a Minnesota criminal defense lawyer immediately. Even if you KNOW you are not responsible for the crime in question, this won't protect you from being charged, or even from being convicted. Don't leave your freedom up to chance. Contact your local Minnesota defense attorney to make sure you are protected.
As always, none of the information contained within this article is intended to act as legal advice or advertising. Minnesota Criminal Law Blog is intended to be used for entertainment purposes only. If you are in need of legal advice or representation, stop looking to internet articles for answers and call or email a Minnesota criminal law attorney today.
Friday, March 23, 2012
What Can a Defense Lawyer Do for You?
A common mistake among people dealing with criminal situations is that they aren't sure what good hiring an attorney would do them. Part of this is people not realizing when they should be talking to an attorney, what goes into a common representation, and where to find the right lawyer. I'll try to touch on these things in a little shorter than normal article.
Note: I intend for this to be somewhat short. I make no guarantees. Carry on...
First and foremost, knowing when you should contact an attorney isn't as easy as it seems. I think most people know that they should speak with a lawyer if they've been arrested for committing a crime and are being taken to jail, but such an incident shouldn't be the first spark in your mind that you need legal assistance.
While the nature of some crimes leads to an immediate arrest, some crimes involve a certain amount of police investigation before any charges are filed. If you are aware that police are investigating you regarding a crime that you may or may not have committed, that is a great time to speak with an attorney. Often, the person of interest in a criminal investigation waits too long to contact an attorney, speaks with the police a couple of times, and in doing so, incriminates his or herself without even realizing it. Police will use clever tactics to induce information from people they suspect of having committed a crime. If you haven't been charged, detained, or arrested, your Miranda rights are not yet vested. Police can ask you any question they'd like. You have no obligation to answer them, but they will try to make you believe that being cooperative will make things a lot easier. This is not always the case.
If you have been pegged as a person of interest in a criminal case, contact an attorney immediately. There are a couple of good reasons to do this.
1) If you have legal representation and make this known to the detective investigating the case, the police can no longer contact you directly. Any conversations they have with you would be unable to lead to any usable evidence unless you have your attorney with you. This protects you from having to answer questions by yourself. Getting the protection of an attorney is an important step to stopping the progress of the police investigation.
2) You're going to have a lot of questions that the internet won't be able to answer. Every criminal investigation is different. Having someone who has experience in the process guiding you and advising you through the process will prove invaluable. Trying to navigate this complicated process on your own could lead to you making mistakes and increasing the chances that you are charged with and convicted of a crime.
Now, it's understandable that you may be leery of hiring an attorney and paying a fair amount of money when it's not 100% clear that you're even going to be charged with a crime. This is an understandable concern. However, I can assure you that getting an attorney on your side up front could save you a lot of money in the end by keeping your case out of court. For instance, depending on the type of charge you are facing, I would probably charge you a flat fee for representation. If you are yet to be charged, my typical practice is to charge only half of the normal flat fee for the type of crime you are being investigated for. If you get charged, the other half will become due, but if you never get charged, you'll only owe half the normal fee. Flat fees are a popular thing among criminal defense attorneys right now as they grant protection to both them and the client. The lawyer is protected because he can ask for the money up front, ensuring he gets paid for his services. The client is protected because they won't have to worry about crazy high bills coming at the end of each month. They know exactly what their representation will cost and can budget accordingly. Aside from attorney fees, you could be responsible for things like court costs, filing fees, paralegal fees, investigator fees, or extra fees to the attorney for going to court. It quickly becomes easy to see why paying a little up front is more desirable than rolling the dice and risking being stuck with huge defense costs later.
Attorneys do a lot more for their clients than just defend them in the courtroom. Attorneys advise clients on the way to answer questions, how to deal with the police, and how to carry themselves in the community when they are publicly suspected of a crime. Your lawyer will be someone who you can confide in, knowing full well that they won't and can't tell anyone what you talk about. They will inform you about the law governing the claims being made against you, explain what you will have to accomplish in order to avoid being found guilty, and can usually offer a little insight as to what the prosecution is up to. When you hire a criminal defense attorney, you have at your disposal an almost endless supply of experience and knowledge that will give you the resources necessary to improve your chances of a good outcome in your case.
The other mistake people make in hiring an attorney is simply picking the one closest to them. While geography should be a consideration in your decision making process, it should not be the only criteria you are using to choose your lawyer. I would love everyone who lives in my city to choose me to be their attorney when they need a criminal lawyer, but the truth is I may not be the best fit for them. On the other hand, I live a long ways from someone from Mankato, but maybe my technique, style, and personality would be the perfect fit for someone from that area who is facing criminal charges. It really is important to use more than your local yellow pages to find a quality lawyer. Talk to friends. Check out the website of a few different firms. Talk to some lawyers over the phone. Send out some emails. You will learn a lot about an attorney by how quickly he responds to an email or whether he answers the phone when you call. If no one picks up, how long does it take them to call you back? You need to have some urgency when dealing with the potential of criminal charges, so you want an attorney who has that same urgency when it comes to connecting with potential clients. Use the resources at your disposal to find an attorney who can get you on the right track before charges are even brought. Having that step up will prove valuable.
Hopefully this helps you determine when it's the right time to speak with an attorney regarding your criminal situation. In summation, if you've been charged with a crime, if you're aware that you're a person of interest in a criminal investigation, or if you've been contacted by police regarding your role in the commission of a crime, it's time to touch base with a lawyer. My general rule of thumb to my clients is that if you're wondering whether you need an attorney, you should at the very least be talking to one. Many criminal attorneys (myself included) will offer you a free consultation in order to see if we like you, you like us, and what kind of defense strategy will be necessary. This is a valuable offer and should be taken advantage of if you're unsure as to how you should proceed.
If you or a loved one have been contacted by police regarding a criminal investigation, are a person of interest in a criminal investigation, or have recently been charged with a crime, get on the phone with a Minnesota criminal defense lawyer today to start assessing your prospects and figuring out your next move.
As always, the content of this blog is not to be construed as legal advice. This website is for entertainment purposes, only. If you or a loved one may be in need of legal advice or representation, contact a Minnesota criminal defense attorney today for quality, specialized legal service.
Note: I intend for this to be somewhat short. I make no guarantees. Carry on...
First and foremost, knowing when you should contact an attorney isn't as easy as it seems. I think most people know that they should speak with a lawyer if they've been arrested for committing a crime and are being taken to jail, but such an incident shouldn't be the first spark in your mind that you need legal assistance.
While the nature of some crimes leads to an immediate arrest, some crimes involve a certain amount of police investigation before any charges are filed. If you are aware that police are investigating you regarding a crime that you may or may not have committed, that is a great time to speak with an attorney. Often, the person of interest in a criminal investigation waits too long to contact an attorney, speaks with the police a couple of times, and in doing so, incriminates his or herself without even realizing it. Police will use clever tactics to induce information from people they suspect of having committed a crime. If you haven't been charged, detained, or arrested, your Miranda rights are not yet vested. Police can ask you any question they'd like. You have no obligation to answer them, but they will try to make you believe that being cooperative will make things a lot easier. This is not always the case.
If you have been pegged as a person of interest in a criminal case, contact an attorney immediately. There are a couple of good reasons to do this.
1) If you have legal representation and make this known to the detective investigating the case, the police can no longer contact you directly. Any conversations they have with you would be unable to lead to any usable evidence unless you have your attorney with you. This protects you from having to answer questions by yourself. Getting the protection of an attorney is an important step to stopping the progress of the police investigation.
2) You're going to have a lot of questions that the internet won't be able to answer. Every criminal investigation is different. Having someone who has experience in the process guiding you and advising you through the process will prove invaluable. Trying to navigate this complicated process on your own could lead to you making mistakes and increasing the chances that you are charged with and convicted of a crime.
Now, it's understandable that you may be leery of hiring an attorney and paying a fair amount of money when it's not 100% clear that you're even going to be charged with a crime. This is an understandable concern. However, I can assure you that getting an attorney on your side up front could save you a lot of money in the end by keeping your case out of court. For instance, depending on the type of charge you are facing, I would probably charge you a flat fee for representation. If you are yet to be charged, my typical practice is to charge only half of the normal flat fee for the type of crime you are being investigated for. If you get charged, the other half will become due, but if you never get charged, you'll only owe half the normal fee. Flat fees are a popular thing among criminal defense attorneys right now as they grant protection to both them and the client. The lawyer is protected because he can ask for the money up front, ensuring he gets paid for his services. The client is protected because they won't have to worry about crazy high bills coming at the end of each month. They know exactly what their representation will cost and can budget accordingly. Aside from attorney fees, you could be responsible for things like court costs, filing fees, paralegal fees, investigator fees, or extra fees to the attorney for going to court. It quickly becomes easy to see why paying a little up front is more desirable than rolling the dice and risking being stuck with huge defense costs later.
Attorneys do a lot more for their clients than just defend them in the courtroom. Attorneys advise clients on the way to answer questions, how to deal with the police, and how to carry themselves in the community when they are publicly suspected of a crime. Your lawyer will be someone who you can confide in, knowing full well that they won't and can't tell anyone what you talk about. They will inform you about the law governing the claims being made against you, explain what you will have to accomplish in order to avoid being found guilty, and can usually offer a little insight as to what the prosecution is up to. When you hire a criminal defense attorney, you have at your disposal an almost endless supply of experience and knowledge that will give you the resources necessary to improve your chances of a good outcome in your case.
The other mistake people make in hiring an attorney is simply picking the one closest to them. While geography should be a consideration in your decision making process, it should not be the only criteria you are using to choose your lawyer. I would love everyone who lives in my city to choose me to be their attorney when they need a criminal lawyer, but the truth is I may not be the best fit for them. On the other hand, I live a long ways from someone from Mankato, but maybe my technique, style, and personality would be the perfect fit for someone from that area who is facing criminal charges. It really is important to use more than your local yellow pages to find a quality lawyer. Talk to friends. Check out the website of a few different firms. Talk to some lawyers over the phone. Send out some emails. You will learn a lot about an attorney by how quickly he responds to an email or whether he answers the phone when you call. If no one picks up, how long does it take them to call you back? You need to have some urgency when dealing with the potential of criminal charges, so you want an attorney who has that same urgency when it comes to connecting with potential clients. Use the resources at your disposal to find an attorney who can get you on the right track before charges are even brought. Having that step up will prove valuable.
Hopefully this helps you determine when it's the right time to speak with an attorney regarding your criminal situation. In summation, if you've been charged with a crime, if you're aware that you're a person of interest in a criminal investigation, or if you've been contacted by police regarding your role in the commission of a crime, it's time to touch base with a lawyer. My general rule of thumb to my clients is that if you're wondering whether you need an attorney, you should at the very least be talking to one. Many criminal attorneys (myself included) will offer you a free consultation in order to see if we like you, you like us, and what kind of defense strategy will be necessary. This is a valuable offer and should be taken advantage of if you're unsure as to how you should proceed.
If you or a loved one have been contacted by police regarding a criminal investigation, are a person of interest in a criminal investigation, or have recently been charged with a crime, get on the phone with a Minnesota criminal defense lawyer today to start assessing your prospects and figuring out your next move.
As always, the content of this blog is not to be construed as legal advice. This website is for entertainment purposes, only. If you or a loved one may be in need of legal advice or representation, contact a Minnesota criminal defense attorney today for quality, specialized legal service.
Wednesday, March 7, 2012
Value vs. Cost, Part II: Why Going with the Cheapest Option Might Not Be a Good Idea
On Monday, I wrote in this space about finding value when choosing an attorney. The point of that article was to remind you of something you probably already know. Namely, that just because something is more expensive does not make it inherently better. But what about the other side of the spectrum? Is it safe to assume that something that is cheaper than a similar product is likely just as good, and therefore a better value? Not always.
When I was in law school, I had something of a shoestring budget. I lived in a house with three other guys. I was living off of student loans and a part time job, so I had to make sure that I was watching my bottom line. I love to eat peanut butter. It's one of my favorite things. Sometimes I'll wake up in the middle of the night and just eat a spoonful of it. As a result of my addiction, my peanut butter budget was becoming prohibitive during this frugal period of my life. I decided I needed to find a way to cut my PB costs, and since eating less of it wasn't an option, that meant buying the bargain basement store brand. "It's just peanut butter," I thought. "How much different could it be?" The answer was "very different." It was the worst thing I've ever tasted in my life. I made a sandwich, took one bite, spit said bite into the sink, and proceeded to take the rest of the peanut butter in the jar and fling it into the alley for the raccoons to eat. That garbage was not fit for human consumption. This experience taught me a hard lesson about value vs. cost.
I have since found generic peanut butter brands that are perfectly fine and usually purchase them instead of the Skippy's or Jiff's of the world and take the $.75 in savings with each trip to the store. I have found that not all generic peanut butters are disgusting, but the first one I tried sure was. How does this relate to hiring an attorney? Just like with cheap peanut butter, it's all about finding an attorney that both fits your budget and your taste.
In a perfect world, money would be no object for people when choosing an attorney. They would be able to meet with a handful of prospects, determine which one is the best fit for them, and happily write a check for whatever the agreed upon amount for representation ends up being. Unfortunately, that's not the way the world works. Most people need to shop for bargains for everything from toothpaste to houses. Attorneys are no different. So, how do you avoid getting the unpalatable attorney and having to learn your lesson the hard way? There are a few things you can do to "test" lawyers when you meet with them that can help you figure out whether they're inexpensive because they're bad or just because they're economical.
First of all, don't bring up cost with a lawyer before you talk about anything else. The last thing I want to hear from a potential client as soon as I answer the phone is "I'm just looking for a quote for..." What this tells me is that their plan is to call a ton of lawyers to find out which one will agree to do it for the least money. I don't want those clients. I believe the my rates are exceptionally reasonable, and I have even been known to cut folks a deal in certain situations, but a client that cares more about getting a good price than they do about getting good representation isn't one that I want to work with. Clients like that are often less interested in participating in their defense and are less likely to ever pay the reduced fee they are looking for. Don't be that kind of client. If for no other reason, bring up cost at the beginning of a consultation is not effective because most lawyers will want to hear what they're dealing with before they'll give you a quote. Attorneys know their services are expensive and cost prohibitive for a lot of people. If your case is interesting enough, some lawyers may be willing to meet you in the middle on fees. You'll never find out if they are open to that if you offend them by complaining about money right away.
Second, have good questions ready when you call or meet with an attorney. Most lawyers won't have all the answers for you during an initial consultation. That's what legal research is for. They should, however, be able to answer your basic questions regarding the type of punishment you could face, potential defense strategies, and your case's strengths and weaknesses. If you meet with a lawyer that doesn't seem to know much about your charge, that's a red flag. All attorneys will say things like "I'll have to look this up" or "this is somewhat unique, so I'll have to look at some cases," but those shouldn't be the only answers they offer. Look for an attorney who appears to be up on current laws, precedents, and techniques in the field. Attorney's who aren't will spend a lot of time looking up basic questions, which in the end will end up costing you money in billable hours.
Third, be extremely leery of any lawyer who's quote is significantly lower than other attorneys you meet with. If five lawyers quoted you between $2500 and $3000 for a certain case, be careful of the attorney who says he can do it for $1000. Rates that low can be indicators of three things:
1) This lawyer is so new to the game that he or she has no idea what their time is worth. While I don't think experience is all it's cracked up to be (experience is something older attorneys highlight, while younger attorneys highlight how hard they work and the attention they'll give you), you don't want someone handling your case who clearly has no idea what they're getting into.
2) This lawyer, for whatever reason, has so much trouble finding clients that when someone calls them with a case, they will agree to pretty much any fee arrangement just to sign the client. Aggressiveness is a good quality in a lawyer; desperation is not. An attorney that is so desperate to sign you to an agreement that they're willing to charge 40% of what everyone else charges for your case is an attorney you'll want to steer clear of.
3) This lawyer charges so little because he or she takes any and every case that comes across his desk and deals with a HUGE volume of work. I call this the Wal*Mart theory of lawyering. Wal*Mart can sell goods at reduced costs because they buy and sell so damn much of everything. Their profit margin on each item might be a little less than a smaller store, but the sheer volume of transactions make them on of the most profitable companies in the world. The issue with Wal*Mart is that their products and service aren't always top notch. The same goes for attorneys who overextend themselves. Being busy as a lawyer is a good thing, but being overworked is a bad thing. It all goes back to what I talked about in my article comparing private attorneys to public defenders. Public defenders aren't worse lawyers than private lawyers, but they are often hindered by their caseload. An attorney who has too many active clients is one who won't have enough time to dedicate specifically to you. Overworked lawyers are usually quick to suggest a plea, even when the chances of a successful trial are good, simply because it will get your file off their desk and give them a better per hour rate for their time. You want to work with a lawyer who is in demand, but isn't so swamped with work that they're going to neglect your case.
Basically, you need to use common sense when hiring an attorney, just the same as you need to when purchasing a car, house, or peanut butter. If you feel comfortable with a lawyer and they meet your budget, your search is over. If you feel comfortable with someone but they charge more than you're really prepared to spend, you need to decide whether it's worth the extended cost to get representation you'll be comfortable with. If someone is in your price range but doesn't exactly instill you with confidence in their ability to handle your case efficiently and effectively, you're probably better off continuing your search.
There's no doubt that finding the right attorney can be an arduous process. Whether you've been charged with a DWI, felony, misdemeanor, traffic violation, or a juvenile crime, contact a Minnesota criminal defense lawyer today to get someone working on your behalf.
As always, none of the proceeding information is intended to act as legal advice in any way. If you have been charged with a crime, or you believe you may soon be charged with a crime, contact a Minnesota criminal defense attorney immediately regarding your situation to get the advice and guidance you need.
When I was in law school, I had something of a shoestring budget. I lived in a house with three other guys. I was living off of student loans and a part time job, so I had to make sure that I was watching my bottom line. I love to eat peanut butter. It's one of my favorite things. Sometimes I'll wake up in the middle of the night and just eat a spoonful of it. As a result of my addiction, my peanut butter budget was becoming prohibitive during this frugal period of my life. I decided I needed to find a way to cut my PB costs, and since eating less of it wasn't an option, that meant buying the bargain basement store brand. "It's just peanut butter," I thought. "How much different could it be?" The answer was "very different." It was the worst thing I've ever tasted in my life. I made a sandwich, took one bite, spit said bite into the sink, and proceeded to take the rest of the peanut butter in the jar and fling it into the alley for the raccoons to eat. That garbage was not fit for human consumption. This experience taught me a hard lesson about value vs. cost.
I have since found generic peanut butter brands that are perfectly fine and usually purchase them instead of the Skippy's or Jiff's of the world and take the $.75 in savings with each trip to the store. I have found that not all generic peanut butters are disgusting, but the first one I tried sure was. How does this relate to hiring an attorney? Just like with cheap peanut butter, it's all about finding an attorney that both fits your budget and your taste.
In a perfect world, money would be no object for people when choosing an attorney. They would be able to meet with a handful of prospects, determine which one is the best fit for them, and happily write a check for whatever the agreed upon amount for representation ends up being. Unfortunately, that's not the way the world works. Most people need to shop for bargains for everything from toothpaste to houses. Attorneys are no different. So, how do you avoid getting the unpalatable attorney and having to learn your lesson the hard way? There are a few things you can do to "test" lawyers when you meet with them that can help you figure out whether they're inexpensive because they're bad or just because they're economical.
First of all, don't bring up cost with a lawyer before you talk about anything else. The last thing I want to hear from a potential client as soon as I answer the phone is "I'm just looking for a quote for..." What this tells me is that their plan is to call a ton of lawyers to find out which one will agree to do it for the least money. I don't want those clients. I believe the my rates are exceptionally reasonable, and I have even been known to cut folks a deal in certain situations, but a client that cares more about getting a good price than they do about getting good representation isn't one that I want to work with. Clients like that are often less interested in participating in their defense and are less likely to ever pay the reduced fee they are looking for. Don't be that kind of client. If for no other reason, bring up cost at the beginning of a consultation is not effective because most lawyers will want to hear what they're dealing with before they'll give you a quote. Attorneys know their services are expensive and cost prohibitive for a lot of people. If your case is interesting enough, some lawyers may be willing to meet you in the middle on fees. You'll never find out if they are open to that if you offend them by complaining about money right away.
Second, have good questions ready when you call or meet with an attorney. Most lawyers won't have all the answers for you during an initial consultation. That's what legal research is for. They should, however, be able to answer your basic questions regarding the type of punishment you could face, potential defense strategies, and your case's strengths and weaknesses. If you meet with a lawyer that doesn't seem to know much about your charge, that's a red flag. All attorneys will say things like "I'll have to look this up" or "this is somewhat unique, so I'll have to look at some cases," but those shouldn't be the only answers they offer. Look for an attorney who appears to be up on current laws, precedents, and techniques in the field. Attorney's who aren't will spend a lot of time looking up basic questions, which in the end will end up costing you money in billable hours.
Third, be extremely leery of any lawyer who's quote is significantly lower than other attorneys you meet with. If five lawyers quoted you between $2500 and $3000 for a certain case, be careful of the attorney who says he can do it for $1000. Rates that low can be indicators of three things:
1) This lawyer is so new to the game that he or she has no idea what their time is worth. While I don't think experience is all it's cracked up to be (experience is something older attorneys highlight, while younger attorneys highlight how hard they work and the attention they'll give you), you don't want someone handling your case who clearly has no idea what they're getting into.
2) This lawyer, for whatever reason, has so much trouble finding clients that when someone calls them with a case, they will agree to pretty much any fee arrangement just to sign the client. Aggressiveness is a good quality in a lawyer; desperation is not. An attorney that is so desperate to sign you to an agreement that they're willing to charge 40% of what everyone else charges for your case is an attorney you'll want to steer clear of.
3) This lawyer charges so little because he or she takes any and every case that comes across his desk and deals with a HUGE volume of work. I call this the Wal*Mart theory of lawyering. Wal*Mart can sell goods at reduced costs because they buy and sell so damn much of everything. Their profit margin on each item might be a little less than a smaller store, but the sheer volume of transactions make them on of the most profitable companies in the world. The issue with Wal*Mart is that their products and service aren't always top notch. The same goes for attorneys who overextend themselves. Being busy as a lawyer is a good thing, but being overworked is a bad thing. It all goes back to what I talked about in my article comparing private attorneys to public defenders. Public defenders aren't worse lawyers than private lawyers, but they are often hindered by their caseload. An attorney who has too many active clients is one who won't have enough time to dedicate specifically to you. Overworked lawyers are usually quick to suggest a plea, even when the chances of a successful trial are good, simply because it will get your file off their desk and give them a better per hour rate for their time. You want to work with a lawyer who is in demand, but isn't so swamped with work that they're going to neglect your case.
Basically, you need to use common sense when hiring an attorney, just the same as you need to when purchasing a car, house, or peanut butter. If you feel comfortable with a lawyer and they meet your budget, your search is over. If you feel comfortable with someone but they charge more than you're really prepared to spend, you need to decide whether it's worth the extended cost to get representation you'll be comfortable with. If someone is in your price range but doesn't exactly instill you with confidence in their ability to handle your case efficiently and effectively, you're probably better off continuing your search.
There's no doubt that finding the right attorney can be an arduous process. Whether you've been charged with a DWI, felony, misdemeanor, traffic violation, or a juvenile crime, contact a Minnesota criminal defense lawyer today to get someone working on your behalf.
As always, none of the proceeding information is intended to act as legal advice in any way. If you have been charged with a crime, or you believe you may soon be charged with a crime, contact a Minnesota criminal defense attorney immediately regarding your situation to get the advice and guidance you need.
Monday, January 30, 2012
Ultimate Showdown! Private Defense Attorneys vs. Public Defenders
Many shoppers out there believe they have two options in choosing an attorney to defend them in a criminal case. 1) Hiring their own private defense attorney, or 2) Choosing to go with the public defender provided by the state/county. People believe this to be true because of the case Miranda vs. Arizona which states that every accused person has the right to an attorney. If one cannot afford an attorney, one will be provided for them. It's that last sentence that gets a lot of people in trouble.
The general consensus among people unfamiliar with the legal system is that YOU get to decide whether or not you can afford a defense attorney. This, as you may be realizing, is not the case. Requirements vary depending on the state, county within the state, and type of crime you have been charged with, but in Minnesota, there are very strict income limits for people receiving free legal representation. In other words, being able to afford an attorney is different than not wanting to pay for one. Even if you don't make too much money, if you have assets you could liquidate (an extra vehicle, a boat, a cabin up north that you use for recreation, your first born child), the courts are well within their rights to ask you to liquidate them before they will offer you free legal services. So, most people charged with crimes do not qualify for public defenders. This leaves you with two options: 1) Hire your own lawyer, or 2) represent yourself pro se. I would NEVER recommend representing yourself in any case that could carry with it significant fines or jail time. The average citizen, as bright as he or she may be, simply is not equipped to deal with all the ins and outs of criminal defense. They don't make us lawyers go to law school for three years before we can even sit for the bar for no reason. Practicing law is tough and, in most cases, should be left to the professionals. You wouldn't perform your own heart surgery. You shouldn't defend your own criminal cases, either.
So, now you know that you likely don't qualify for public defender services. But what if you do? What if you have been struck down by the economy, are having a tough time making ends meet, and got mixed up in something for which you are being charged with a crime. Should you go with the public defender if you qualify for one? I know if I recommend "no," that may ring a bit hollow, seeing as BDH Law Office is a for-profit private law firm that benefits from people deciding not to employ a public defender. However, I truly do believe that if you can scratch up enough money to pay for a private attorney, whether it be by borrowing from friends or family, or even asking from donations from people from your local church, it will be worth it for you in the end.
I would never disparage the work that public defenders do. Public defenders are one of the reasons the legal system works. They often work for much less than they are worth and work too hard for what they are paid. They don't get to choose their clients -- they care chosen for them. They do an admirable job considering the circumstances under which they are required to operate. If it wasn't for public defenders, innocent people would be sent to jail FAR more frequently. The problem with accepting a public defender to defend your case is that the system is broken. Funding for PD's has gone down significantly over the years and there simply aren't enough public defenders to handle the case load they are burdened with. This lack of time, resources, and flexibility make juggling the workload very difficult for most PD's. They put in every bit as much effort as a private attorney, but their time is simply stretched too thin for them to give every client they have the attention they deserve. This often can lead to missed details, delays in your trial (if indeed your case goes to trial), and a weaker relationship between you and your attorney.
Private attorneys have the ability to limit their case load to a number of clients they are comfortable with. If they don't have room, they often will refer you to an attorney who might. You are paying for the services of a private attorney, unlike with a public defender, but you get a lot for your money. You get someone who will put in the necessary time to make sure all the "i's" are dotted and "t's" crossed regarding your defense. While there are obvious benefits to a public defender settling a case just to get it over with (lessening their caseload, helping their client end the proceedings quickly, creating more time for other clients), private attorneys need to be successful to continue to get clients. The last thing any Minnesota criminal defense lawyer wants to do is get a reputation as someone who pleads out every case they handle. A lawyer who recommends accepting a plea all the time isn't an attorney who seems willing to go to war for you. You need a lawyer who will help you find the best possible outcome for your case and then fight to get it. If your attorney feels the best you can do is accept a plea offered up by the prosecution, then so be it. What you don't want is an attorney who is suggesting a plea because they don't have time to handle your case properly.
If you've been charged with a crime, be it a felony, misdemeanor, or DWI, it's important to have legal representation. If you really cannot afford an attorney, then it's certainly better to work with a public defender to make sure you have a competent, experienced attorney on your side. However, even if you do qualify to use a public defender, if you think you can make it work financially, hiring a private Minnesota criminal defense attorney is going to give you the piece of mind that you get from knowing someone is willing to battle for your rights.
As always, none of the proceeding is intended to act as legal advice in any way. If you have been charged with a crime or fear that you may be charged with one soon, please contact a Minnesota criminal defense lawyer immediately to set yourself up with the best possible opportunity to succeed in your defense.
The general consensus among people unfamiliar with the legal system is that YOU get to decide whether or not you can afford a defense attorney. This, as you may be realizing, is not the case. Requirements vary depending on the state, county within the state, and type of crime you have been charged with, but in Minnesota, there are very strict income limits for people receiving free legal representation. In other words, being able to afford an attorney is different than not wanting to pay for one. Even if you don't make too much money, if you have assets you could liquidate (an extra vehicle, a boat, a cabin up north that you use for recreation, your first born child), the courts are well within their rights to ask you to liquidate them before they will offer you free legal services. So, most people charged with crimes do not qualify for public defenders. This leaves you with two options: 1) Hire your own lawyer, or 2) represent yourself pro se. I would NEVER recommend representing yourself in any case that could carry with it significant fines or jail time. The average citizen, as bright as he or she may be, simply is not equipped to deal with all the ins and outs of criminal defense. They don't make us lawyers go to law school for three years before we can even sit for the bar for no reason. Practicing law is tough and, in most cases, should be left to the professionals. You wouldn't perform your own heart surgery. You shouldn't defend your own criminal cases, either.
So, now you know that you likely don't qualify for public defender services. But what if you do? What if you have been struck down by the economy, are having a tough time making ends meet, and got mixed up in something for which you are being charged with a crime. Should you go with the public defender if you qualify for one? I know if I recommend "no," that may ring a bit hollow, seeing as BDH Law Office is a for-profit private law firm that benefits from people deciding not to employ a public defender. However, I truly do believe that if you can scratch up enough money to pay for a private attorney, whether it be by borrowing from friends or family, or even asking from donations from people from your local church, it will be worth it for you in the end.
I would never disparage the work that public defenders do. Public defenders are one of the reasons the legal system works. They often work for much less than they are worth and work too hard for what they are paid. They don't get to choose their clients -- they care chosen for them. They do an admirable job considering the circumstances under which they are required to operate. If it wasn't for public defenders, innocent people would be sent to jail FAR more frequently. The problem with accepting a public defender to defend your case is that the system is broken. Funding for PD's has gone down significantly over the years and there simply aren't enough public defenders to handle the case load they are burdened with. This lack of time, resources, and flexibility make juggling the workload very difficult for most PD's. They put in every bit as much effort as a private attorney, but their time is simply stretched too thin for them to give every client they have the attention they deserve. This often can lead to missed details, delays in your trial (if indeed your case goes to trial), and a weaker relationship between you and your attorney.
Private attorneys have the ability to limit their case load to a number of clients they are comfortable with. If they don't have room, they often will refer you to an attorney who might. You are paying for the services of a private attorney, unlike with a public defender, but you get a lot for your money. You get someone who will put in the necessary time to make sure all the "i's" are dotted and "t's" crossed regarding your defense. While there are obvious benefits to a public defender settling a case just to get it over with (lessening their caseload, helping their client end the proceedings quickly, creating more time for other clients), private attorneys need to be successful to continue to get clients. The last thing any Minnesota criminal defense lawyer wants to do is get a reputation as someone who pleads out every case they handle. A lawyer who recommends accepting a plea all the time isn't an attorney who seems willing to go to war for you. You need a lawyer who will help you find the best possible outcome for your case and then fight to get it. If your attorney feels the best you can do is accept a plea offered up by the prosecution, then so be it. What you don't want is an attorney who is suggesting a plea because they don't have time to handle your case properly.
If you've been charged with a crime, be it a felony, misdemeanor, or DWI, it's important to have legal representation. If you really cannot afford an attorney, then it's certainly better to work with a public defender to make sure you have a competent, experienced attorney on your side. However, even if you do qualify to use a public defender, if you think you can make it work financially, hiring a private Minnesota criminal defense attorney is going to give you the piece of mind that you get from knowing someone is willing to battle for your rights.
As always, none of the proceeding is intended to act as legal advice in any way. If you have been charged with a crime or fear that you may be charged with one soon, please contact a Minnesota criminal defense lawyer immediately to set yourself up with the best possible opportunity to succeed in your defense.
Sunday, January 8, 2012
The Increasingly Odd Joran Van der Sloot Case
I think most people are familiar with the trial of Dutch national Joran Van der Sloot taking place in Peru. Van der Sloot is accused of murdering Stephanie Flores. He was also a top suspect in the Natalie Holloway killing back in 2005, but was never formally charged with the still unsolved crime.
This case has been back in the news recently, and the trial for Van der Sloot was scheduled to begin on Friday, Jan. 6. It was expected that Van der Sloot was going to plead guilty in light of his confession to the crime to Peruvian police, despite his attorney consistently telling the media that his client's confession was the result of police coercion and a language barrier.
There was no official guilty plea entered on Friday, however, as Van der Sloot instead requested more time to more thoroughly consider his plea. This is interesting for a couple reasons. First, Van der Sloot is still expected to plead guilty in order to garner a more favorable sentence, so it's unlikely this delay will result in any change of strategy. His decision to delay this plea is indicative of a lack of preparation on the part of the defense team. Second, all indications are that Van der Sloot was prepared to plead guilty when he walked into the court room, but was not in agreement with all the charges laid against him. His confusion regarding what he was pleading guilty to is something that should be avoidable.
Ultimately, it is unlikely this delay in the proceedings will have any real affect on the outcome of the trial, but if Van der Sloot comes back on Wednesday and pleads not guilty, many questions will rise regarding the rationale behind his plea.
An important element to conducting a competent legal defense is preparation. The attorney and their client should show up to any hearing regarding their case ready to participate fully. This is important for a few reasons. First, it creates an air of confidence that judges, jury members, and the prosecution will pick up on. As the great Tony Soprano once said, "More is lost by indecision than wrong decision," and he knows a thing or two about defending criminal charges. Second, being prepared can make your representation cheaper. Being on the ball can lower the billable hours your attorney is working, meaning that you will get the same effective counsel for less of your hard-earned money. Lastly, delays due to a lack of preparation will drag out the proceedings, meaning that this experience will take up more of your life than it has to. Delaying unpleasant situations is as American as apple pie, but the truth is that in the legal world, it's best to get things over with as fast as possible, assuming you aren't sacrificing the quality of your defense for expedition.
It isn't hard to avoid being a part of snafus like this. One of the jobs of a criminal defense attorney is to make sure that his or her client is fully prepared and informed. If you're in need of representation regarding a criminal charge, be the charge is something straight forward like a DWI or something complex like felony assault, contact a Minnesota criminal defense lawyer as soon as possible so you aren't wasting valuable time.
Friday, December 30, 2011
2011's Most Interesting MN Supreme Court Ruling on a Criminal Defense Appeal
One of my favorite things to do when I have a few extra minutes (usually over my morning coffee) is to head over to the MN Supreme Court rulings and read through the recent criminal defense appeals that have gone to a decision. This is a great way for Minnesota criminal defense attorneys to stay up to date on the ever-changing precedents regarding criminal defense, while at the same time learning some do's and don'ts of representing clients.
My favorite case of the year was the review of a conviction of a Minneapolis man for aiding and abetting first degree premeditated murder for the benefit of a gang. The case involved a drive by shooting perpetrated allegedly by one gang against another. The usual appeals were present (insufficient assistance of counsel, statutory bar of conviction, insufficient evidence, etc...), but what made this case so interesting was that the principle party who fired the shots was only convicted of 2nd degree murder, whereas his accomplice was convicted of aiding and abetting first degree murder. The reasonable assumption is that if the actual murderer was found to have not committed 1st degree murder, his accomplice could therefore not be found to have aided and abetted such a crime.
This was the argument made by the appellant's attorney, citing Minn.Stat. 609.05, claiming that it precluded the appellant's conviction of this specific crime. Unfortunately, the statute does the exact opposite of that, in that it expressly prohibits such a charge under these circumstances. The pertinent section reads,
"person liable for the crimes of another may be charged with and convicted of the crime although the person who directly committed it has not been convicted, or has been convicted of some other degree of the crime or of some other crime based on the same act."
Clearly, Minnesota statutory law was in favor of the state in this situation, meaning that the appellant's attorney was likely grasping at straws with this objection. The eyewitness evidence was pretty overwhelming in this case, and both the appellant and his attorney were likely doing whatever they could think of to get his sentence reduced from life without possibility of release to something involving the possibility of parole.
Other interesting nuggets from this case involve how differently juries and judges can see the same facts. In the trial for the trigger-man, the defense elected for a bench trial. The judge in that case concluded that there was insufficient evidence to prove premeditation on the part of the shooter, as well as to prove the group he was a member of qualified as a "gang" under the relevant Minnesota statute. Given the exact same facts (presumably), the jury in the accomplice's trial found sufficient evidence to support both of those claims, making a conviction at the level of 1st degree murder easier to justify. In cases like this where there is the possibility of a high amount of prejudice against the defendant and a high level of emotion, it would not be unreasonable for the defense to ask for a bench trial as opposed to a jury trial. Jury's tend to feed off the emotion of the proceedings more than will a judge, who has made impartiality his living.
This case illustrates just how complicated and nuanced criminal cases can be, and how important it is to have a competent criminal defense attorney on your side. While not every case has the repercussions of a murder trial, there is no such thing as a minor criminal conviction. Any conviction can cost you privileges, freedom, and the ability to gain employment, so regardless of what crime you are being charged with, be sure to contact a Minnesota criminal defense attorney immediately to set up a plan of action regarding your case. Doing so could be the difference in guilt or innocence.
If you want to read more MN appellate court rulings, check out http://law.justia.com/cases/minnesota/. Here you can find both Court of Appeals rulings as well as Supreme Court rulings.
Here's hoping everybody has a happy, safe, and crime-free New Year!
My favorite case of the year was the review of a conviction of a Minneapolis man for aiding and abetting first degree premeditated murder for the benefit of a gang. The case involved a drive by shooting perpetrated allegedly by one gang against another. The usual appeals were present (insufficient assistance of counsel, statutory bar of conviction, insufficient evidence, etc...), but what made this case so interesting was that the principle party who fired the shots was only convicted of 2nd degree murder, whereas his accomplice was convicted of aiding and abetting first degree murder. The reasonable assumption is that if the actual murderer was found to have not committed 1st degree murder, his accomplice could therefore not be found to have aided and abetted such a crime.
This was the argument made by the appellant's attorney, citing Minn.Stat. 609.05, claiming that it precluded the appellant's conviction of this specific crime. Unfortunately, the statute does the exact opposite of that, in that it expressly prohibits such a charge under these circumstances. The pertinent section reads,
"person liable for the crimes of another may be charged with and convicted of the crime although the person who directly committed it has not been convicted, or has been convicted of some other degree of the crime or of some other crime based on the same act."
Clearly, Minnesota statutory law was in favor of the state in this situation, meaning that the appellant's attorney was likely grasping at straws with this objection. The eyewitness evidence was pretty overwhelming in this case, and both the appellant and his attorney were likely doing whatever they could think of to get his sentence reduced from life without possibility of release to something involving the possibility of parole.
Other interesting nuggets from this case involve how differently juries and judges can see the same facts. In the trial for the trigger-man, the defense elected for a bench trial. The judge in that case concluded that there was insufficient evidence to prove premeditation on the part of the shooter, as well as to prove the group he was a member of qualified as a "gang" under the relevant Minnesota statute. Given the exact same facts (presumably), the jury in the accomplice's trial found sufficient evidence to support both of those claims, making a conviction at the level of 1st degree murder easier to justify. In cases like this where there is the possibility of a high amount of prejudice against the defendant and a high level of emotion, it would not be unreasonable for the defense to ask for a bench trial as opposed to a jury trial. Jury's tend to feed off the emotion of the proceedings more than will a judge, who has made impartiality his living.
This case illustrates just how complicated and nuanced criminal cases can be, and how important it is to have a competent criminal defense attorney on your side. While not every case has the repercussions of a murder trial, there is no such thing as a minor criminal conviction. Any conviction can cost you privileges, freedom, and the ability to gain employment, so regardless of what crime you are being charged with, be sure to contact a Minnesota criminal defense attorney immediately to set up a plan of action regarding your case. Doing so could be the difference in guilt or innocence.
If you want to read more MN appellate court rulings, check out http://law.justia.com/cases/minnesota/. Here you can find both Court of Appeals rulings as well as Supreme Court rulings.
Here's hoping everybody has a happy, safe, and crime-free New Year!
Sunday, December 4, 2011
Let's Get This Rolling!
Welcome! You have stumbled upon Minnesota's newest legal blog covering the topics of criminal law and defense. Hopefully you are here for entertainment purposes only, but if you have been charged with a crime and are looking for answers, hopefully you'll be able to find something of use within these pages!
BDH Law Office is a criminal defense firm located just minutes north of St. Paul, MN. From the smallest traffic offense to the most severe felony charge, criminal proceedings are full of nuance and pitfalls that can really hurt your reputation, impede your rights, and even hinder your ability to find employment. In this blog, you will have the opportunity to read about cases in the news that we find interesting, see questions asked by other readers, and learn about common misconceptions and myths regarding criminal defense. I'll be posting to this blog 3 or 4 times a week, so check back often to stay up to date with all the goings on in Minnesota criminal law!
In the mean time, feel free to check out the other social network outlets for the BDH Law Office. Our Twitter handle is @bdhlawoffice. Follow us on Twitter to get updates about our practice, as well as info and opinions regarding the world of criminal law. Join our group on Facebook at facebook.com/bdhlawoffice. Be a part of the discussion boards, participate in polls, and even chat directly with an attorney.
You can also check out our entry on LawGuru under Minnesota law firms. The official website of BDH Law Office can be found at bdhlawoffice.com. You can read more about our firm, our areas of practice, and our attorneys. You can even fill out a contact form with a short summary of your situation directly to an attorney at BDH Law Office in order to have your case reviewed. Whether we feel like we can help you or not, a BDH Law Office attorney will be in touch with you within the hour to discuss your situation with you.
Nothing on this blog is intended act as legal advice. It is solely for entertainment purposes. If you have been charged with a crime or believe you will be charged with a crime, no amount of internet research will be sufficient to ensure the success of your case. Contact a Minnesota criminal defense attorney immediately to get specific advice and guidance regarding your situation.
Thanks, everyone!
BDH Law Office is a criminal defense firm located just minutes north of St. Paul, MN. From the smallest traffic offense to the most severe felony charge, criminal proceedings are full of nuance and pitfalls that can really hurt your reputation, impede your rights, and even hinder your ability to find employment. In this blog, you will have the opportunity to read about cases in the news that we find interesting, see questions asked by other readers, and learn about common misconceptions and myths regarding criminal defense. I'll be posting to this blog 3 or 4 times a week, so check back often to stay up to date with all the goings on in Minnesota criminal law!
In the mean time, feel free to check out the other social network outlets for the BDH Law Office. Our Twitter handle is @bdhlawoffice. Follow us on Twitter to get updates about our practice, as well as info and opinions regarding the world of criminal law. Join our group on Facebook at facebook.com/bdhlawoffice. Be a part of the discussion boards, participate in polls, and even chat directly with an attorney.
You can also check out our entry on LawGuru under Minnesota law firms. The official website of BDH Law Office can be found at bdhlawoffice.com. You can read more about our firm, our areas of practice, and our attorneys. You can even fill out a contact form with a short summary of your situation directly to an attorney at BDH Law Office in order to have your case reviewed. Whether we feel like we can help you or not, a BDH Law Office attorney will be in touch with you within the hour to discuss your situation with you.
Nothing on this blog is intended act as legal advice. It is solely for entertainment purposes. If you have been charged with a crime or believe you will be charged with a crime, no amount of internet research will be sufficient to ensure the success of your case. Contact a Minnesota criminal defense attorney immediately to get specific advice and guidance regarding your situation.
Thanks, everyone!
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