Minnesota Criminal Defense Blog

Minnesota Criminal Defense Blog Receives Top Criminal Law Blog Award

Jason C. Brown — Mon, 30 Nov 2009 21:00:59 -0600

Attorney.org has recognized the Minnesota Criminal Defense Blog as a top criminal law blog for 2009-2010. The Blog, published by defense attorney Jason C. Brown, of the Brown Law Offices, P.A. is the first of its kind in Minnesota.

Since going live in early 2008 over 17,000 unique readers have turned to the Minnesota Criminal Defense Blog for useful information, insight and commentary on criminal defense issues unique to Minnesota.

"Our goal in publishing a criminal defense blog is being realized," says Jason Brown. "I am able to reach thousands of unique readers each month and provide potential clients with much more than a name and phone number. Our blog, and web site, are packed with helpful information."

If you have a suggestion for a post, please contact us at your convenience. To keep up with Minnesota criminal defense issues via RSS or email, please click the appropriate link on the left side of any of our pages.

Minnesota Criminal Defense Attorneys Summarize Obstruction of Justice Charges Under Minnesota Law

Jason C. Brown — Thu, 03 Sep 2009 20:48:11 -0600

The act of obstructing justice takes many forms. Minnesota law defines "obstruction of justice" as the the interference with the work of law enforcement, including peace officers, prosecutors and federal authorities. There are a host of crimes in Minnesota that constitute obstruction of justice:

Escape;
Fleeing A Police Officer In A Motor Vehicle;
Warning A Subject of Police Investigation;
Witness Tampering; and
Interference With A Dead Body

An individual who: (1) escapes while in custody pursuant to a lawful arrest, in custody on a charge or conviction of a crime, or while detained on an allegation or adjudication of a delinquent act; (2) transfers to another, who is in lawful custody on a charge or conviction of a crime, or introduces into an institution in which the latter is confined, anything usable in making such escape, with intent that it shall be so used; (3) having another in lawful custody on a charge or conviction of a crime, intentionally permits the other to escape; (4) escapes while in a security hospital; or (5) escapes while on pass status or provisional discharge is guilty of criminal escape.

An individual who, by means of a motor vehicle, flees or attempts to flee a peace officer who is acting in the lawful discharge of an official duty, and the perpetrator knows or should reasonably know the same to be a police officer, is guilty of fleeing a police officer.

An individual, having knowledge that a subpoena has been issued, and with intent to obstruct, impede, or prevent the investigation for which the subpoena was issued, gives notice or attempts to give notice of the issuance of the subpoena or the production of the documents to a person is guilty of the crime of warning of police investigation.

Someone engaged in harming or otherwise threatening a witness, hoping to influence his or her testimony, is guilty of witness tampering.

Someone who interferes with the body or scene of death with intent to mislead the coroner or conceal evidence is guilty of the crime of interfering with a dead body.

Have you been charged with obstruction of justice? The Minnesota criminal attorneys with the Brown Law Offices, P.A. can help. We've handled thousands of cases and will fight to protect your rights. Contact us for a free consultation with one of our experienced lawyers. You can call (612) 789-2100 or submit your inquiry through our online consultation form.

Facing Misdemeanor Charges in Minnesota? Our Defense Attorneys Summarize the Process

Jason C. Brown — Wed, 08 Jul 2009 21:55:09 -0600

In Minnesota, a misdemeanor is punishable by up to 90 days in jail and a maximum fine of $1,000. The most common misdemeanor charges include moving violations such as failing to stop at a stop sign, underage driving under the influence, and driving after license revocation. Some of the more common non-motoring misdemeanors include fifth-degree assault, DWI, a first violation of an order for protection and theft charges involving merchandise valued at less than $500.

Once a citation is issued a court date will be assigned. Some citations may simply be taken care of by paying a fine prior to the court date. The first court appearance in a misdemeanor case is referred to as an "arraignment." The individual who has been charged will be advised of their rights and may enter a guilty or a not guilty plea. If a guilty plea is entered, the Judge will usually impose the sentence at that time. Penalties often include a fine, jail time, and other conditions during a period of probation.

If a not guilty plea is entered the case is set for a pre-trial hearing. At the pre-trial, the prosecuting attorney and the defense lawyer attempt to reach a resolution. If no resolution is reached at the pre-trial conference, the case is scheduled for a jury trial. In misdemeanor cases, both the State and the defendant may present evidence to a jury of six.

There are a number of situations in which conduct involving a misdemeanor charge will carry a felony penalty as a result of the offender's prior record. For instance assault in the fifth degree is a felony if the offender has two or more prior convictions for assaultive behavior. Likewise, theft crimes of more than $200 but less than $500 are felonies if the defendant has at least one prior conviction.

The criminal defense lawyers with the Brown Law Offices, P.A. are here to help you. We've handled countless misdemeanor cases in Minnesota. Contact us for a free consultation with one of our experienced Minnesota misdemeanor defense attorneys: 763.323.6555 or submit your inquiry through our online consultation form.

Minnesota Criminal Attorneys Prepare for Modifications to the Minnesota Rules of Criminal Procedure

Jason C. Brown — Sun, 03 May 2009 19:41:50 -0600

In an effort to make the Minnesota Rules of Criminal Procedure more useful, the Minnesota Supreme Court has taken a complete re-write of the rules under advisement and will hold a hearing relative to these revisions on June 30, 2009 at 2:00 PM. A complete copy of the proposed rules may be found at the Minnesota Supreme Court web site.

According to Barbara Jones, associate editor with the Minnesota Lawyer newspaper, what started as a re-working of Rule 26 evolved into a complete overhaul of the present Minnesota Rules of Criminal Procedure over a 19 month time frame. If the new rules are accepted by the Supreme Court, the hope of the Rules Committee is to have these in use and publication by the fall of 2010.

The amended Minnesota Rules of Criminal Procedure would contain a more user-friendly approach to the criminal process, including a number of checklists to accompany various hearings, such as omnibus and arraignment appearances. The present framework has been in place since 1975, with many piecemeal amendments made along the way.

Minnesota Juvenile Offender Certified as Adult in Second Degree Murder Case

Jason C. Brown — Wed, 22 Apr 2009 15:48:04 -0600

The Minnesota Court of Appeals has affirmed a district court order certifying a 17 year old defendant as an adult in a second degree murder case. The relevant opinion is entitled In re the Welfare of MED. Judge Klaphake drafted the opinion.

In a certification proceeding, the Court of Appeals will review the district court’s findings for a clear error utilizing an abuse of discretion standard. Because the minor was 17 years old at the time of the offense and the offense was one that would result in a presumptive prison commitment under the sentencing guidelines, it is presumed that the proceeding would be certified for adult prosecution. Consequently, the child has the burden of rebutting this presumption by demonstrating by clear and convincing evidence that retaining the proceeding in the juvenile court serves the public safety. If the child does not rebut the presumption, the court must certify the matter in adult court.

Judge Klaphake wrote:

Appellant failed to present evidence to support his contention that public safety would be served if he remained in the juvenile system. The offense charged is serious and appellant has a steady history of juvenile offenses, including both misdemeanors and a felony adjudication. Appellant participated in limited programming at Prairie Lakes Youth Program (PLYP) after his arrest; according to PLYP records, appellant 'has not done well,' 'has had several problems with the program and has had consequences for his thinking and actions,' and 'has had an above average amount of consequences.'

The Court found that the minor defendant provided no clear and convincing information to rebut this information or to demonstrate that public safety would be served by retention in the juvenile system. Therefore, the Court affirmed the district court’s order.

Under Minnesota law, to try a minor as an adult, a certification hearing must take place. The prosecutor will note his or her intention to move the case into adult court through a motion at the first juvenile court appearance. Once requested, a certification study often takes place. During this study, experts will examine a child's criminal history, meet with the accused and offer recommendations about the appropriate forum to try the case.

Defense Lawyer Q&A: Your Rights and Obligations in Dealing with Law Enforcement

Jason C. Brown — Wed, 18 Mar 2009 20:30:36 -0600

Do I have to answer the questions asked by the police?

You have the constitutional right to remain silent. It is not a criminal act to refuse to answer questions. It is a good idea to talk to a lawyer before agreeing to answer questions. You do not have to talk to anyone, even if you have been arrested or are in jail. Only a judge can order you to answer questions.

Can I talk to a lawyer?

You have the right to talk to a lawyer before you answer questions, whether or not the police inform you of that right. The job of a criminal lawyer is to protect your rights. Once you say that you want to talk to an attorney, officers should stop asking you questions. Even if you do not have a lawyer, you may still tell the officer you want to speak with one before answering questions. If you have a lawyer, keep his or her business card with you. Show it to the officer, and ask to call your lawyer. Remember to get the name, agency and telephone number of any investigator who visits you, and give that information to your lawyer.

Can the police search my home or office?

The police, or other law enforcement agents, cannot search your home unless you give them permission, or unless they have a search warrant. A search warrant is a court order that allows the police to conduct a specified search. Interfering with the search probably will not stop it and you might get arrested. But you should say clearly that you have not given your consent and that the search is against your wishes. Your roommate or guest can legally consent to a search of your house if the police believe that person has the authority to give consent. Police and law enforcement need a warrant to search an office, but your employer can consent to a search of your workspace without your permission.

What if the police have a search warrant?

If you are present when agents come for the search, you can ask to see the warrant. The warrant must specify in detail the places to be searched and the people or things to be taken away. Call a lawyer as soon as possible. In addition, ask if you are allowed to watch the search. If you are allowed to, you should. Take notes, including names, badge numbers, what agency each officer is from, where they searched and what they took. If others are present, have them act as witnesses to watch carefully what is happening.

Do I have to answer questions if the police have a search warrant?

No. A search warrant does not mean you have to answer questions.

What if the police do not have a search warrant?

You do not have to let the police search your home, and you do not have to answer their questions. The police cannot get a warrant based on your refusal to cooperate.

What if the police do not have a search warrant, but insist on searching?

Do not get in the way of the search. If someone is there with you, ask him or her to witness that you are not giving permission for the search. Call an attorney as soon as possible. Get the names and badge numbers of the searching officers.

What if I speak to the police anyway?

Anything you say to law enforcement can be used against you and others. Keep in mind that lying to a government official is a crime. Remaining silent until you consult with a lawyer is not. Even if you have already answered some questions, you can refuse to answer other questions until you have representation.

What if the police stop me on the street?

Ask if you are free to go. If the answer is yes, consider just walking away. If the police say you are not under arrest, but are not free to go, then you are being detained. The police can pat down the outside of your clothing if they have reason to suspect you might be armed and dangerous. If they search any more, say clearly, “I do not consent to a search.” They may keep searching anyway. You do not need to answer any questions if you are detained or arrested with one important exception. The police may ask for your name once you have been detained, and you can be arrested in some states for refusing to provide it.

What if the police stop me in my car?

Keep your hands where the police can see them. You do not have to consent to a search. But if the police have probable cause to believe that you have been involved in a crime or that you have evidence of a crime in your car, your car can be searched without your consent. Clearly state that you do not consent. Officers may separate passengers and drivers from each other to question them and compare their answers, but no one has to answer any questions.

Do I have to answer questions if I have been arrested?

No. If you are arrested, you do not have to answer any questions. Ask for a lawyer right away. Repeat this request to every officer who tries to talk to or question you. You should always talk to an attorney before you decide to answer any questions.

At the Brown Law Offices, P.A., our Minnesota criminal defense lawyers understand how to protect your rights. To contact our firm, call 763-323-6555 or complete a free online consultation form.

Minnesota Court of Appeals Affirms Aggravated Robbery Conviction Despite Defendant's Alleged Denial of a Speedy Trial

Jason C. Brown — Fri, 13 Mar 2009 19:59:50 -0600

In an unpublished decision issued on March 10, 2009, the Minnesota Court of Appeals affirmed aggravated robbery conviction despite a claim by the defendant that he was denied the right to a speedy trial. Judge Worke wrote the decision in State v. Dahir.

Under the state and federal constitution, in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial.” Minnesota courts apply a four-part test to determine whether a defendant’s speedy-trial right has been violated: (1) the length of the delay; (2) the reason for the delay; (3) whether and when the defendant asserted his right to a speedy trial; and (4) the prejudice to the defendant caused by the delay.

In Minnesota, following a speedy-trial demand, the trial shall commence within 60 days of the demand unless good cause is shown. Delay beyond 60 days raises a presumption that a defendant’s speedy-trial right has been violated, and requires further inquiry into whether a violation has occurred. Judge Worke opined that "Appellant made a speedy-trial demand on August 7, 2007. Appellant’s trial commenced nearly four months later on December 3, 2007; therefore, further inquiry is necessary to determine whether a violation has occurred."

The reason for delay is closely related to the length of delay, and different weights are assigned to different reasons. A deliberate attempt to delay trial to harm the defense is weighed most heavily against the state. But, the Court found "that is not the case here because the delay was caused by court-calendar congestion and the fact that a new judge took over appellant’s case." While delays caused by overcrowded courts are weighed against the state because the state is ultimately responsible for such circumstances, this type of delay weighs less heavily against the state.

Assertion of the right to a speedy trial need not be formal or technical, and it is determined by the circumstances. A court must assess “the frequency and intensity" of a defendant’s assertion of a speedy trial demand. However, Dahir demanded his right to a speedy trial and, at the same time, waived that right to the extent that his trial would occur slightly beyond the 60-day period. His attorney then agreed to a November 14 or a December 3 trial date, and the trial commenced on December 3. Judge Worke found this factor is neutral because, despite Dahir's clear demand, his attorney agreed to the continued trial date.

Whether a defendant has been prejudiced by a delay encompasses three concerns: (1) preventing oppressive pretrial incarceration, (2) minimizing the anxiety of the accused, and (3) limiting impairment of the defense. Dahir argued that he experienced prejudice because he was subject to pretrial incarceration and could not make bail, was the subject of anxiety and his defense was "likely harmed" because of the delay. All three arguments failed.

The Court concluded that Dahir's "constitutional right to a speedy trial was not violated." Certain factors, such as the length of the delay and his assertion of the right to a speedy trial, favor him. But because the trial date was continued for reasons beyond the control of the state and because [he] was not prejudiced by the delay, he is not entitled to relief."

The criminal attorneys with the Brown Law Offices, P.A. are leaders in representing criminal defendants. Cynthia Brown, a founding partner in the firm, is a former Minnesota prosecutor and criminal investigator who has been interviewed by ABC News. To contact our firm, please call 763-323-6555 or complete a free case consultation form.

Voluntary & Involuntary Manslaughter Under Minnesota Law

Jason C. Brown — Tue, 03 Feb 2009 19:44:20 -0600

In Minnesota, manslaughter is defined as the killing of a person in a manner less culpable than murder. The relevant manslaughter statutes differentiate the seriousness of the offense based upon the state of mind of the defendant at the time of the killing. Manslaughter may be voluntary or involuntary under Minnesota law.

In a voluntary manslaughter situation, the perpetrator must have an intent to cause death or serious injury. Liability for the death, however, may be reduced in light of the specific circumstances surrounding the actions and the state of mind of the individual who is charged. For example, a "heat of passion" killing (such as responding with deadly force upon witnessing an abusive act upon a child) may involve a voluntary manslaughter charge.

With involuntary manslaughter (sometimes involving negligent or criminal vehicular homicide) no intent to kill or cause serious injury is necessary. Instead, the death of another may result from reckless disregard for the rights and safety of others - such as causing the death of a driver in a motor vehicle accident.

Under the Minnesota manslaughter statutes there are three types of manslaughter charges:

Certain Minnesota DWI Charges Result in the Forfeiture of Your Automobile

Jason C. Brown — Sun, 11 Jan 2009 11:56:35 -0600

Under Minnesota's DWI statutes, the vehicle owned by certain drunk drivers may be subject to forfeiture and sale. Typically a third DWI violation within a ten-year period results in the loss of a car, but, with one or more enhancing factors, a person’s second or even first DWI might qualify as well.

Motor vehicles operated by a drunk driver are subject to forfeiture in Minnesota if:

The vehicle was used in the commission of a designated offense and the driver was convicted of that offense or failed to appear at trial; or
The driver had an alcohol concentration of .20 or more; or
The vehicle was used in conduct resulting in license revocation and the driver either fails to seek administrative or judicial review of the revocation in a timely manner or the revocation is sustained upon review.

A second or third car or truck owned by the offender, but not driven while intoxicated, are not subject to forfeiture.

As protection for a vehicle owner who borrowed their vehicle to the offender, Minnesota law provides that a motor vehicle is subject to forfeiture only if the true owner knew, or should have known, of the unlawful or intended use of the vehicle to drive intoxicated.

After the forfeiture process is compete, law enforcement may keep the vehicle for official use. Security interests or lease terms, if any, are protected, and the lien holder may choose to sell the vehicle at its own auction or agree to a sale by the arresting agency. A proportionate share of the proceeds, after the deduction of certain expenses, goes to the lending institution.

If you have been charged with drunk driving in Minnesota and your vehicle may be subject to forfeiture, contact attorney Jason Brown for information about your legal rights and recovery of your property: 763-323-6555 or submit our free consultation form.

An Overview of Minnesota Felony Cases

Jason C. Brown — Sun, 28 Dec 2008 21:36:56 -0600

Felonies are punishable by over one year to life imprisonment and a maximum fine indicated in the relevant Minnesota statute. Felony offenses are the most serious of all crimes and are pursued very aggressively by the State. Common felonies include the possesssion of sale of large quantities of narcotics, rape, assault, criminal sexual conduct, arson, murder and theft. In felony cases, the county attorney 's office is the prosecuting authority. In some cases, the Minnesota Attorney General's office will get handle things.

Because of the serious conduct involved with felony offenses, a number of court appearances will take place.

Upon arrest, defendants make their bail appearance. The bail amount is set and release conditions are imposed. If a defendant cannot post bail on their own, they can obtain a bond through a bondsman or remain incarcerated pending trial.

The next step involves the arraignment hearing. In an arraignment, the court will ensure that a defendant understands their rights and what they are charged with.

The next appearance is called an "omnibus" hearing and involves a challenge to probable cause and the evidence obtained by the state in violation of your constitutional rights.

Once the omnibus issues are addressed, the case is set for a pre-trial conference. At that hearing, negotiation takes place between the prosecutor and defense attorney. If a plea agreement is reached, it is read into the record. If a plea cannot be reached, a trial date will be set.

If convicted, the matter is set for sentencing. The state will conduct a pre-sentence investigation to examine the background of the defendant and make a recommendation concerning the sentence that should be imposed.

A conviction for felony often impacts a defendant's ability to obtain employment, secure student loans, serve in the military, vote and possess a firearm. It is far more difficult to expunge a felony conviction than a misdemeanor or gross misdemeanor convication.

The felony defense lawyers with the Brown Law Offices, P.A. have years of experience in handling felony charges in Minnesota, including drug offenses, criminal sexual conduct, fraud, manslaughter and others. To contact our attorneys, call 763-323-6555 or submit a free consultation form.

Minnesota Court of Appeals Affirms Upward Departure in First-Degree Criminal Sexual Conduct Case

Jason C. Brown — Tue, 16 Dec 2008 21:16:22 -0600

In a published decision, State v. Abrahamson, issued on December 9, 2008, the Minnesota Court of Appeals affirmed the district court's upward departure in sentencing an individual convicted of first-degree criminal sexual conduct. Judge Schellhas wrote the opinion, without dissent.

Abrahamson was charged with three counts of criminal sexual conduct, one count of possession of substances with intent to manufacture methamphetamine, one count of exposing a child to methamphetamine activity, and one count of endangerment of a child. Pursuant to a plea agreement, he admitted that from 1999 through August 2005, he engaged in multiple acts of sexual abuse of his child. Abrahamson also admitted to possessing materials that could be used to manufacture methamphetamine in his home.

At sentencing, the prosecutor asked for an upward durational departure, arguing that the offense occurred over a period of five to six years; (2) the minor victim was treated with particular cruelty; (3) the minor victim was forced to watch pornographic movies; (4) the minor victim was told that appellant wanted to photograph her without clothes; (5) there was use of and exposure to illegal drugs; and (6) overall, the conduct was far more egregious than the usual child-sexual-abuse case.

The district court agreed with the prosecutor and opined:

The Court does find that there are some things that were listed by [the prosecutor] as bases for departure depending on how I decide this case, and those for the sake of argument would include the longevity and the extent of the crime, the fact that multiple acts involving the same vulnerable young girl took place over years of time, the multiplicity of trauma and the sex acts that this child was exposed to involving oral sex, feigned anal sex, appliances and the like all exceedingly damaging and harmful to a young child. The third factor that [the prosecutor] called to the Court’s attention I think has some merit for discussion purposes is the fact that [appellant] utilized methamphetamine and marijuana as well as promises to “groom” this child for his victimization and also used the viewing of pornographic movies so as to lower the child’s natural inhibitions and/or fears regarding the adult nature of the acts that were being suggested and perpetrated by [appellant]. I think all of those things do support a motion as brought by [the prosecutor].

Abrahamson appealed. Judge Schellhas reiterated that a district court "may depart from the sentencing guidelines if substantial and compelling circumstances are present." She stated that "A district court’s discretion is broad, and only a rare case warrants reversal of the refusal to depart."

The Court found that variety in the sexual acts is a valid reason for departure and that the sharing of pornographic materials with the victim constituted a valid aggravating factor because Abrahamson's use of pornography with the child demonstrated that he committed the criminal sexual conduct in a "particularly serious way."

In Minnesota, factors relevant to dispositional departures include a defendant's amenability to probation, the defendant’s age, prior record, remorse, cooperation, attitude while in court, and the support of friends and/or family. These are known as the Trog factors. While these factors were argued by Abrahamson's counsel, the Minnesota Court of Appeals found no basis for a downward dispositional departure.

St. Paul Prostitution Bust Part of Larger Craigslist Crackdown

Jason C. Brown — Mon, 17 Nov 2008 20:58:21 -0600

The Minneapolis Star Tribune reports that a multi-state crackdown on prostitution ads found on Craigslist is underway. Law enforcement in 40 states have reached an agreement with the internet advertiser concerning its "erotic services" category. No surprise that the State of Minnesota is on board, in light of the recent St. Paul prostitution sting operations that have taken place, resulting in the arrest of dozens.

As part of Craigslist's agreement with attorneys general around the country, anyone who posts an "erotic services" ad will be required to provide a working phone number and pay a fee with a valid credit card. The Web site will provide that information to law enforcement if subpoenaed. Blogcatalog has put together a comprehensive list of prostitution cases involving Craigslist from across the country.

In Minnesota, prostitution involves participation in sexual activity in exchange for money. Minnesota prostitution statutes contain five types of charges:

Prostitiution among consenting adults may be charged as a misdemeanor or gross misdemeanor, depending upon the circumstances. Conviction for a misdemeanor will result in a fine of up to $1,000 and 90 days in jail. The penalty for a gross misdemanor includes a fine of up to $3,000 and one year in jail.

Minneapolis has taken things a step further. Defendants convicted of prostitution in Minneapolis will have their photograph published on the Minneapolis Prostitution Solicitation Convications page online.

Minnesota Burglary Charges & Defenses

Jason C. Brown — Mon, 10 Nov 2008 20:24:59 -0600

Burglary (often referred to as breaking and entering) involves entry into a building for the purpose of engaging in criminal activity ( most often theft). In Minnesota, burglary charges are determined by the type of building that was entered and what acts were performed once inside the building.

The Minnesota burglary statute contains four degrees of burglary:

Burglary in the first degree. Whoever enters a building without consent and with intent to commit a crime, or enters a building without consent and commits a crime while in the building, either directly or as an accomplice, commits burglary in the first degree and may be sentenced to imprisonment for not more than 20 years or to payment of a fine of not more than $35,000, or both, if: (a) the building is a dwelling and another person, not an accomplice, is present in it when the burglar enters or at any time while the burglar is in the building; (b) the burglar possesses, when entering or at any time while in the building, any of the following: a dangerous weapon, any article used or fashioned in a manner to lead the victim to reasonably believe it to be a dangerous weapon, or an explosive; or (c) the burglar assaults a person within the building or on the building's appurtenant property.

Burglary in the second degree. Whoever enters a building without consent and with intent to commit a crime, or enters a building without consent and commits a crime while in the building, either directly or as an accomplice, commits burglary in the second degree and may be sentenced to imprisonment for not more than ten years or to payment of a fine of not more than $20,000, or both, if: (1) the building is a dwelling; (2) the portion of the building entered contains a banking business or other business of receiving securities or other valuable papers for deposit or safekeeping and the entry is with force or threat of force; (3) the portion of the building entered contains a pharmacy or other lawful business or practice in which controlled substances are routinely held or stored, and the entry is forcible; or (4) when entering or while in the building, the burglar possesses a tool to gain access to money or property.

Burglary in the third degree. Whoever enters a building without consent and with intent to steal or commit any felony or gross misdemeanor while in the building, or enters a building without consent and steals or commits a felony or gross misdemeanor while in the building, either directly or as an accomplice, commits burglary in the third degree and may be sentenced to imprisonment for not more than five years or to payment of a fine of not more than $10,000, or both.

Burglary in the fourth degree. Whoever enters a building without consent and with intent to commit a misdemeanor other than to steal, or enters a building without consent and commits a misdemeanor other than to steal while in the building, either directly or as an accomplice, commits burglary in the fourth degree and may be sentenced to imprisonment for not more than one year or to payment of a fine of not more than $3,000, or both.

A common defense in burglary cases is that the suspect had a legitimate reason for being on the premises. Another defense to burglary involves a lack of intent upon entry into a building.

Jury Selection Tips in Criminal Cases

Jason C. Brown — Sat, 01 Nov 2008 20:49:25 -0600

Thanks to the professionals with DecisionQuest, a jury consulting firm with offices across the country (including right here in the Twin Cities), for their jury selection tips. In a recent article entitled "Jury Selection: Myths and Realities," they provide the following suggestions to criminal defense attorneys and their clients during voir dire:

Do try to make a good impression, but do not worry about whether certain members of your team are present or whether a jury consultant is sitting with you. It is important to have the client present, simply because his or her absence can be interpreted as not caring about the case. Do warn observers who are witnesses that they should come dressed appropriately in case they are introduced. Try to appear respectful of jurors’ time and their privacy, and be organized in your questioning.
Do ask the judge for some form of individual sequestered questioning to avoid having to ask important but potentially embarrassing or personal questions in front of the panel. It is optimal to be able to talk individually with each potential juror, but this process may not be allowed in all jurisdictions. The justification can often be made that your particular case involves issues that must be discussed privately.
Do come up with a profile of unfavorable and favorable jurors recognizing that experiences that are relevant to the case are more important than demographics. Pay particular attention to the occupational and socioeconomic status of participants, but recognize that people are sensitive about being judged based on what they do to earn a living. Because it is usually necessary to make some judgments based on individuals’ demographic characteristics, especially if voir dire is brief, consider the life experiences that individuals may have had that are related to their demographics.
Do prioritize strikes focusing on the “worst jurors,” and have a system for rating jurors that the team can agree to use. I use a five-point rating system, the continuum of which goes from “two minuses” to “two pluses” with neutral in between.
Do make sure that, if possible, you get a chance to see and hear each juror speak, even if it is just introducing him or herself. However, do not waste time thoroughly interviewing jurors who are so far down the list that it is highly unlikely that you will ever get to them. Obviously, you don’t want to make anyone in the “back row” feel different, but often the process involves following up with jurors scattered throughout the gallery as well as in the box. It is important to hear from each juror, but a great deal of time is sometimes wasted talking with jurors who will never be selected.
Do encourage openness and honesty as norms, versus being fair and impartial, to create an atmosphere in which jurors feel free to express their potential biases. In the end, the jurors can be encouraged to be fair and impartial in their approach to the case, but after an atmosphere of disclosure is created.
Do keep in mind that jurors will often say that they can be impartial, but you must trust your gut about whether or not that is true. Remember, most people are bad judges of their own biases, and may even believe they can overcome them, but sometimes their situation or their demographics would suggest otherwise.
Do use the opportunity to present your case in a positive, or at a minimum, neutral light, and use voir dire to inoculate jurors about potentially negative issues in the case.
Do ask the judge to request a sufficiently large panel of jurors to have comfort that if jurors do express biases, there will be enough jurors to complete your panel in the appropriate timeframe.
Do not place undo emphasis on the non-verbal behavior of a juror, with the exception of grooming, clothing choices, and surreptitious indicators. Remember that the world has changed, and most jurors do not come to court in their “Sunday Best” anymore. The norm for a given age group and in society is important to consider. Body piercing, for example, is not an automatic sign of a rebellious personality in young people; it is actually quite typical.
Have at least one other person who is skilled at jury selection attend with you to take notes, to remind you of missed questions or jurors, to observe the panel, and to provide another opinion. Jury selection is far too complicated a process to engage in alone.

Great tips. Jury selection is one of the most difficult things to accomplish in a criminal case. It makes a huge difference if you have the right panel deciding your case. Jury consultants are just one of many options to consider.

Pleading Guilty: What You Must Acknowledge to the Court

Jason C. Brown — Tue, 14 Oct 2008 19:54:44 -0600

A plea in Minnesota must be made knowingly, voluntarily and intelligently. This means that the defendant in a criminal case must acknowledge that they understand all of their rights and, more importantly, the fact that they are waiving them. In every case, this is done verbally (on the record) and in writing (through a signed Petition to Enter Plea of Guilty in Minnesota).

The following must be acknowledged by the defendant prior to the acceptance of a plea agreement:

I feel that I have had sufficient time to discuss my case with my attorney.
I am satisfied that my attorney is fully informed as to the facts of this case.
My attorney has discussed possible defenses to the crime that I might have.
I am satisfied that my attorney has represented my interests and has fully advised me.
I know that I could now move that the complaint against me be dismissed for lack of probable cause and I know that if I do not make such a motion and go ahead with entering my plea of guilty, I waive all right to successfully object to the absence of a probable cause hearing.
I also know that I waive all right to successfully object to any errors in the probable cause hearing when I enter my plea of guilty.
That I have a right to a pre-trial hearing before a judge to determine whether or not the evidence the prosecution has could be used against me if I went to trial in this case.
That if I requested such a pre-trial hearing I could testify at the hearing if I wanted to, but my testimony could not be used as substantive evidence against me if I went to trial in this case.
That I do not now request such a pre-trial hearing and I specifically now waive my right to have such a pre-trial hearing.
That whether or not I have had such a hearing I will not be able to object tomorrow or any other time to the evidence that the prosecutor has.
That if I wish to plead not guilty I am entitled to a trial by a jury on the issue of guilt, and all jurors would have to agree I was guilty before the jury could find me guilty.
That if I plead guilty I will not have a trial by either a jury or by a judge without a jury.
I have been told by my attorney and I understand that if I wish to plead not guilty and have a trial by jury or trial by a judge I would be presumed innocent until my guilt is proved beyond a reasonable doubt.
That if I wish to plead not guilty and have a trial the prosecutor would be required to have the witnesses testify against me in open court in my presence and that I would have the right, through my attorney, to question these witnesses.
That if I wish to plead not guilty and have a trial I would be entitled to require any witnesses that I think are favorable to me to appear and testify at trial.

The entry of a plea is a serious matter that cannot easily be undone. The failure to fully understand your rights at this state of the criminal process, however, could potentially facilitate a withdrawal of a plea. For that reason, the state will proceed very cautiously in making sure that the record reflects that you fully understand the nature of the proceedings and the rights you are waiving.

Assault Crimes & Defenses in Minnesota

Jason C. Brown — Mon, 22 Sep 2008 15:22:00 -0600

Assault charges in Minnesota involve a crime of violence against another person. Assault cases are pursued according to the seriousness of the injury suffered by the victim and the relationship between the victim and the defendant. Minnesota assault statutes contain six types of assault charges:

Defenses to assault charges include consent, punishment, self-defense, defense of another, prevention of a crime and the defense of property.

Minnesota Arson Charges & Defenses

Jason C. Brown — Wed, 10 Sep 2008 14:53:04 -0600

An act of arson in Minnesota involves voluntarily, maliciously and willfully setting fire to the property of another, or burning property that you own for an inappropriate purpose, such as fraudulent insurance claims.

The severity of the offense is deterimined by assessing the dollar value of the property or nature of the injury or death to the victim of the fire. Other factors that contribute to the degree of arson charges include whether the structure was inhabited by a person, the time of day in which the fire occurred, and the proximity of a person's residence to the burned structure. Minnesota arson statutes outline six arson crimes:

For years, fire investigators have been instructed to look for key "indicators" of arson activity. Crazed glass, melted copper wiring, and melted steel were all said to indicate an unusually hot fire, consistent with the use of accelerants. Uneven burn patterns were said to indicate multiple ignition points, another indicator of arson. These methods of fire investigation appear to provide a "scientific" basis for expert opinions as to whether arson is involved in a particular case. However, more up-to-date research suggests that much of the conventional wisdom of these theories are simply wrong.

New Minnesota DWT Law Among Toughest in the Country (But Still A Petty Misdemeanor)

Jason C. Brown — Thu, 31 Jul 2008 08:58:13 -0600

As of tomorrow, it is against the law to text while driving. Included in the legislation is the use of e-mail and internet services on mobile devices. The new law defines an electronic message as a "self-contained piece of digital communication that is designed or intended to be transmitted between physical devices." Basically, no data sending or requests while operating a motor vehicle - whether moving or sitting in traffic or at a stop sign.

And so begins the era of "DWT."

A dozen other states across the county have adopted similar laws. Violation constitutes a petty misdemeanor. The new law is a direct response to a siginificant increase in traffic accidents stemming from the use of portable electronic devices.

What Happens at a Pre-Trial Hearing?

Jason C. Brown — Tue, 22 Jul 2008 21:13:49 -0600

A “pretrial” hearing is a person’s last court appearance on a criminal charge prior to trial. At this hearing, the parties generally have gathered all the information they need to fully negotiate the case, including crime victim input.

In negotiating the case, the prosecuting attorney will consider the following factors:

Severity of the crime and its impact upon the victim and/or community;
Criminal history of the defendant;
Defendant’s age and physical and/or mental health;
Whether the defendant expresses genuine remorse;
Defendant’s willingness to make restitution;
Victim’s preferences in how the case should be handled; and
The likelihood of conviction at trial.

If the parties are unable to resolve the case, a trial date will be set. Ongoing negotiation with the prosecutor will continue pending trial.

Minnesota Misdemeanor Offenses: Will I Be Arrested or Cited?

Jason C. Brown — Wed, 02 Jul 2008 21:04:27 -0600

In Minnesota, a person first enters the criminal justice system through a variety of means. The most common means are through arrest, citation, or tab charge by a police officer. Pursuant to
the Minnesota Rules of Criminal Procedure, police officers must issue citations to persons subject to lawful arrest for misdemeanors unless it reasonably appears to the officer that arrest or detention is necessary to prevent bodily harm to the accused or another or further criminal conduct, or that there is a substantial likelihood that the person will fail to respond to a citation.

In addition, pursuant to statute, a police officer may not arrest someone for a misdemeanor offense unless the officer personally observes the person commit, or attempt to commit the offense. Police officers may exercise discretion, within the constraints of the law in determining whether to make an arrest or whether to issue a citation.