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June 2015 Archives

Governor Dayton is a Coward and so is the Legislature

Many years ago Judge Garrity in Boston and Judge Merhige in Richmond, Virginia, along with a number of other courageous Federal Judges made decisions that put their lives in jeopardy for many years. Unpopular would be a massive understatement for what they became in their own hometowns where they had once been heroes. The integrated the schools and started mandatory bussing. Their lives were in real jeopardy for the rest of their careers. The reason was that they made mandated and irreproachable decisions called for by the Constitution. They had to make them because the Governors, Mayors and politicians would not risk their jobs or their lives to do what had to be done, unpopular that it was. Our legislature and our Governor will not act now despite having no reason other than their popularity (perceived) and eventual elections that must be decided in the future. None of their lives are in jeopardy and their absolutely mandated duty will soon be forgotten by even the most strident law and order supporter. They are going to leave their sworn duty to Federal Judge Donovan Frank, who by the way has always been properly tough on crime. You see, the State of Minnesota has a way to keep sex offenders off the street after they have served their time in prison for the crimes for which they have been convicted. They are, after a perfunctory hearing, committed to state custody for the treatment which is supposed to cure them. When they are cured they are to be released. We have hundreds of former prisoners in this treatment program which has been going on for years and years. The problem is that as of this writing only one person has ever been released and that person is strict supervision. Among the population there are women. There is no treatment program for women. Some of the "patients" have been held since they were teenagers. If nobody gets cured, there is no treatment program. Judge Frank has had the case in front of him for years and has made a finding that it is unconstitutional to hold people in custody because they may commit another crime if you don't do something to treat them successfully. Minnesota does not and has no plans to do so. Under the present system the population will continue to grow with no end in sight. The Judge has issued an edict to the State. Fix this program so that there is really treatment that reduces these people's risk of reoffending or else. Other states do not have the same problem. We know that when Tim Palenty was Governor the director of the program, who had certified that a number were no longer dangerous, he issued an edict that it would never be done while he was Governor. The director serves at the pleasure of the Governor, or equivalent. The State has put up a fight in front of Judge Frank and made all types of claims that they are working on the problem. He has cut through the nonsense not unlike General Sherman on the way to Atlanta. Their bleating responses are laughable because no sane person (maybe that is the answer) could make an argument that this is a constitutionally supportable methodology. In order for it to be a treatment program that meets constitutional muster their must be steps and achievements the patients make that ultimately can lead to release back into society. One must remember that there are only a small percentage of these people that are psychopathic (untreatable and unmanageable) and the rest must have a graduated methodology for graduation. Our Governor and our legislature know that revisions in the program to make it constitutional will not be met with enthusiasm by the public. Meanwhile the Judge has allowed the Governor to appear in front of him for some reason I am unaware of. Judge Frank hears people out but this should be laughable. Dayton is used to speaking not answering questions. He is getting his answers from the lady that runs the program and has no idea what she is doing either. I'm just saying 

Big Week for SCOTUS - Would the MN Supreme Court Done the Same?

This was a great week in our United States Supreme Court. In fact, it has been beyond that. First, they recognized the necessity that the Government prove that a person charged with illegal analog drugs know that in fact that the drugs are illegal analog drugs, and that the belief that they are something else that is legal provides the defendant with a defense. Ergo, the lack of specific intent to violate the law. Next the Big Court found that the Armed Career Criminal Act was void for lack of specificity and thus violative of due process of law. Then they found that discrimination in housing can be found upon a conclusion supported by circumstantial evidence without the production of direct evidence. And lastly, they ruled that States cannot ban same sex marriage. A banner week. Now can we turn to our very own Minnesota Supreme Court and how they did rule and how we project they would have ruled on the same subjects. First, specific intent was found to be completely unnecessary in State v. Wenthe. If you are a priest and you have sex with a member of the congregation you are guilty of a sex crime whether you believed you were the person's pastor or not. Specific intent doesn't impress the majority of our Supreme Court, with the exception of Justice Page, who has labeled this decision as dangerous and new and usupportable law. It's worse than that. It is evidence that our Supreme Court has little or no understanding of the basic tenets of criminal law as it has been developed down through the ages. How would they have ruled if they had been presented with the same questions that our United States Supreme Court was presented with as detailed above. Since they don't cotton to the venerable reasoning that gives us the necessity for specific intent in most crimes, they would have held that if the pills in your hand were inscrutable then you must be guilty of something. You see bad people go around with pills and they must be guilty. There is no way they (MN. Sup Ct.) would have held the Armed Career Criminal Act unconstitutional because they would have manipulated the language, twisted the meaning and claimed they could understand it so why didn't everybody else. After all, look at the folks it was meant to apply to and fact that it calls for life in prison should be of no moment. Well, in re same sex marriage, if our state had prohibited it. Gosh, it's the will of the legislature and who are they to oversee that. (which of course is their job) Chief Justice Gildea, Justice Anderson, Justice Stras, Justice Dietzen would have affirmed the right of the legislature to regulate State licensure and would see no problem. Justice Lillihaug and Justice Wright I am unable to predict and Justice Page would have dissented seeing that type of statute as discriminatory, as it clearly is. We live in a state with a Supreme Court that leaves something to be desired. Again, we would be far better off if our Court was under the leadership of Chief Justice Roy Moore of Alabama. He follows the dictates of the Ten Commandments and his Supreme Being. I really don't know who our Court follows with one exception. It seems, in my humble opinion, the Minnesota Supreme Court decides what result they want and then backs into it. Anybody care to disagree? Take a look at United District Court Judge Schiltz's opinion in the post conviction case of State v. Bobadilla. (Bobadilla v. Carlson, 570 Fed. Sup. 2nd 1098, Aff'd, 575 Fed 3rd 785). The Judge found that the Minnesota Supreme Court disregarded settled Federal Law and manipulated the facts to reach their desired end. It appeared in that case, that Justice Page was the only Justice that read the case law from the federal courts and understood it. What could be worse conduct by a State Supreme Court. They decided they didn't care for Mr. Bobadilla and manipulated the facts and law to keep him in prison. Make you feel safe? 

Court finds Minnesota Sex Offender Program unconstitutional

In the U.S., we like to believe in the rule of law and due process. We believe many of the elements of the Constitution provide fundamental safeguards that prevent the unbridled power of the state from smothering individual rights and hauling people off to prison camps like those operated by the Nazi government of Germany or the gulag of the Soviet Union.

Always remember to whom you are speaking

A federal criminal indictment is no minor event. Title 18 of the U.S. Code contains the majority of the criminal statutes. And likely you do not want to find out which one of the thousands of section of Title 18 that you have been charged with violating. But as they say on TV, "Wait, there's more." There are many, many sections of the federal statues and agency regulations, a violation of which can bring about a federal prosecution.

More on finality in criminal cases

Courts have to deal with the practicality of the day-to-day operations of their practice and procedure. Appeals have to be exhausted and decisions have to be completed. But when testimony is flawed, and a defendant is sentenced to life in prison or given the death penalty, it seems rather empty for a court to pretend that administrative niceties are more important.

Finality in a criminal case? What's it worth?

In criminal cases, finality is important. From a prosecutor's perspective, there is a desire to close a case with a conviction or plea agreement, and send the suspect to jail or prison. On the defense side, obtaining acquittal, dismissal or a favorable plea agreement is equally important. But at a deeper level, it is more important to see that justice is done.

Importance of the Lawyer/Client Relationship

I tried a first degree murder case last week in Minneapolis. It is important to illustrate the relationship between lawyer and client. During the State's case we completely decimated their witnesses. The supposed eye witnesses were revealed on cross examination to be liars of the first order. The ballistic witnesses were shown to be nothing but incompetents and the jury was sending signals to this experienced trial lawyer that we were winning. The client was facing life without parole if convicted of the major charge. At the conclusion of the State's case the defendant was presented with an offer to plead guilty to an unintentional homicide and do eight years in prison. He asked me what I thought and I told him I believed that we were going to win. He asked me if I could guarantee him that we would win. The answer, of course, was no. He thought about it and asked my advice again and I told him if it was my choice I would go on with the trial. He decided to take the offer. Whether to plead guilty or not is the client's choice. The lawyer can advise but the decision is the client's after consultation and if I was wrong I go home and he goes to prison forever. The jury was interviewed afterwards and would have acquitted him but that is after acquired knowledge and I cannot fault my client's decision. If I was wrong I would not have done the time for him. It is a personal decision he made and who knows if the decision would have really been as I now believe when the rubber hit the road for the jury. Criminal trials are passion plays for lawyer and client. The relationship is personal and close and it must be a good solid relationship. It is between me and my clients.

Super Lawyers Best Lawyers American College of Trial Lawyers American Board of Criminal Lawyers Joseph S. Friedberg - Best Lawyers | Lawyer of the Year 2013 | Criminal Defence White Collar Minneapolis National Board of Legal Speciality Certification Minnesota Law & Politics Minnesota State Bar Association Certified Specialist | Criminal Law