The Minnesota Society for Criminal Justice (MSCJ) is the oldest association of criminal defense lawyers in Minnesota.  It is a lawyers’ College, meeting each month - sharing information and continuing legal education, providing  support for litigation to help protect the rights of Minnesotans.

Leading the Way.

The Minnesota Society for Criminal Justice also fights for justice both legislatively and through the courts.  For example, the MSCJ Source Code Coalition led by MSCJ has been litigating the most significant and expensive fight against Minnesota’s unfair DWI laws in history:  the CMI-Minnesota Intoxilyzer machine computer source code litigation in Minnesota.

Minnesota Society for Criminal Justice attorneys fight for the civil rights and constitutional rights of the People against the government.

It used to be “drunk driving” was a crime. Then in the 1970s the criminal laws were expanded to include “per se impaired driving laws.”   Per se roughly translates from the Latin to “the thing itself” or “by itself.”  A per se drunk driving law is a law that makes driving with an arbitrary alcohol-level a crime – even if the driver is not drunk, not impaired at all. That’s why you don’t hear the term “drunk driving” much anymore.  But why should it be a crime to drive when driving skills are not impaired?

Ok.  So the laws are unfair, and morally bankrupt – punishing the innocent and their families for no good purpose.  Fine.  There it is.  So how can you protect yourself and your family from this potential injustice?

What can a person do during a DWI stop to protect their rights?

This is mostly a question that criminal defense lawyers hear at a party.  Why?  Because almost all people stopped and later charged with DWI didn’t do any of these things.  But it can make for great conversation at a party.  There are a few different approaches and answers to the question.  So let’s narrow our hypothetical, and provide one.

Since most people stopped for a possible DWI have an alcohol concentration of less than 0.15, have no priors, and have not exhibited impaired driving conduct – let’s start with all of those assumptions, as well as assuming Minnesota laws.  Given the low speed limits these days and the most drivers travel faster than the speed limit most of the time, let’s assume a police officer stops the driver for speeding late one Friday or Saturday.   The police squad car take-down lights are visible in the rear-view mirror.  Now what?

The Police Officer Approaches the Vehicle

Police are trained to observe all of your actions and note any that could be interpreted as supportive of suspicion of impairment (and ignore the rest).  At this phase these include:

• odor of alcohol
• eyes – “bloodshot, watery”
• couldn’t find or fumbled with driver’s license and insurance card
• admitted drinking, coming from a bar, a party

What are some potentially effective countermeasures, then? If the window is not open, or open about an inch or so – that is plenty to pass the drivers license and insurance card through, but not enough to expose the odor of alcohol.  You can refuse to do lower the window to force the officer to make a forceful command to do so, making it difficult for them to argue you did so voluntarily.  When speaking to the police officer through the almost closed window, the driver can avoid eye contact.  This prevents the officer from being able to observe the cliché “bloodshot watery eyes” they imagine come only with drinking.  It’s a good idea to have the drivers license and insurance card in hand immediately after stopping, well before the police officer walks up to the vehicle to request those.  They are in your hands already, which are in plain sight on the steering wheel.  If asked “have you been drinking tonight?” you are not required to answer or answer responsively.  It is a bad idea to lie, for many reasons.  It is also a bad idea to admit facts the officer can use to build “probable cause” to ask you out of the car, or for arrest later.

If you were stopped for speeding, the police officer should just write you a speeding ticket and send you on your way – unless you give him or her probable cause or reasonable suspicion to justify asking you out of your vehicle.

Police ask you to step out of the car.  Now what?

If you use the car or car door for support when getting out or walking, they will note that as suspicious.  So don’t.  They will ask you to walk behind your car, in front of theirs.  Their squad car lights will be on full bore.  They will ask you to perform field exercises they like to call “Field Sobriety Tests.”  These are not scientifically valid, though the government claims otherwise.  Sober, trained police officers “fail” these “tests.”  How will you “pass” them?  And who is your judge?  The police officer!  What to do then?  Do not perform field exercises when asked to do so.  Do not do “Field Sobriety Tests!”  Common ones include:

• Nine step walk and turn
• One leg stand
• Recite the alphabet, backwards etc.
• Horizontal Gaze Nystagmus (follow the pen or finger with eyes only, without moving head)
• Walk a straight line

You cannot be required by law to do any of these. It would be a foolish mistake to willingly do any of them.

“Preliminary Breath Test” (PBT)

Minnesota statutes authorize police officers to require a driver to blow into a PBT machine – a portable breath-alcohol machine only under certain conditions where there is a basis to suspect DWI or selected other alcohol-related offenses.  Don’t worry about whether those preconditions exist.  Your lawyer can do that later if need be.  What is important is that a PBT machine report of 0.08 or more can provide probable cause to arrest for DWI, and so can “refusal” to perform a PBT. Refusing a PBT is not a crime.  That would only provide probable cause to arrest.  One can imagine a logical person, knowing that, deciding to refuse the PBT if they felt sure they would end up with a PBT report of well over .08, for example .20 or more.  That person might feel they would have nothing to lose by refusing – since they would be arrested either way.  Compare that to a person who believed they would get a PBT report of less than 0.08.  That person would be foolish to refuse it, since it could result in their not being arrested.

Keep in mind that the little PBT machine on the side of the road, is not the same as the big, evidentiary breath-alcohol machine at the police station.  If a person is arrested, they can be asked to submit a sample for alcohol testing again, even though they already submitted to a PBT.  The PBT report is not admissible in a criminal DWI trial because they are too unreliable and inaccurate.

If arrested, then what?

Every step further in the chain of events described above brings the driver closer to arrest (unless the PBT is less than 0.08).   If the PBT reads too high, that and the rest will be followed typically with handcuffs and the back of the squad car.  Then normally the arresting officer will wait for back up or a tow truck, and leave for the police station once either arrives.  Talking is not a good idea at any point, including while in the squad car.

At or near the police station (or hospital for a blood draw), the police normally read “the Minnesota Implied Consent Advisory” which informs the driver of certain legal rights.  The most important is your right to consult a lawyer before deciding whether to submit to chemical testing.

It is always, always, always – a good idea to call a lawyer first!  The police are required by law to help you do so.  If they fail to help you call a lawyer, the chemical test could be suppressed from evidence.  You should always make every effort to call a lawyer in this situation – even if you are still sitting in the squad car in handcuffs!  Tell the officer you want to call a lawyer.   This part is usually recorded – a good thing.

The other important right is secret in the sense that it is never mentioned in the “Implied Consent Advisory” by the cop.  what is it?  It is your Constitutional right to exculpatory evidence, as manifested in your statutory right to an “Additional Test.”  Say what?  You have the legal right in Minnesota to a Second Test, after the you provide the sample requested by police. In this situation, the arrested person should always, always, always request an Additional Test.  If you do, the police are only required to give you a phone to use.  You can use the phone to call whoever you need to call to arrange for an additional test.  See the midnight DWI jail call to a Minnesota lawyer blog post for more on this issue.

Stay safe out there.

By: Thomas C Gallagher, Minneapolis DWI Defense Lawyer

Do we believe that social harms are caused by our sexuality, our money, our prostitution?  Put that way – yes, we do.  We have a social consensus that these do cause or contribute to social harms.  This begs the question, then, what best to do about it?  Can the laws play a role in reducing these harms?  If so, how?  Apart from the best legal approach to reducing social harms related to prostitution, what are the laws currently in Minnesota, in the United States?

Social Harms of Prostitution Are Reduced in the Netherlands

 Malum Prohibitum

Criminal laws can divided into malum in se and malum prohibitum. 

Malum In Se is literally “Evil in itself.”  A criminal statute addressing malum in se is one which is naturally evil, like murder, theft, etc.  Crimes at common law were generally mala in se.   An offense malum prohibitum, however, is not naturally an evil, but by legal fiat becomes one as a consequence of its being forbidden; like some gambling, drugs, which have become unlawful in consequence of being forbidden.

Does a law forbidding something make it go away, or reduce the social harms that thing may cause?  The examples of drug prohibition laws in the United States show us that the answer is “no.”  In fact, criminalizing disfavored social practices like alcohol and other drugs, and prostitution has greatly increased social harms associated with them.

Which social harms associated with prostitution can be attributed to the act of prostitution alone, as opposed to the underground economy created by legal criminalization?  Considering that question further, let’s make a list of social harms commonly associated with prostitution:

1. Coercion.  Where prostitution is legal, there is little or no coercion of sex workers, compared to places where it is unregulated and criminalized.  Human trafficking thrives within a context of criminalized prostitution.  Where prostitution is legal and regulated, the hypocritical double standard and corruption issues do not provide a barrier to cracking down on kidnapping and human trafficking.  The use of drugs, threats, and violence to coerce sex workers is enabled and encouraged by criminalization.
2. Exploitation of Children.   Where legal and regulated, it is rare to find children or underage people working in the sex industry.  In Minnesota, as in other places where it is crime, anything goes and prostitutes commonly begin before the age under 18.
3. Nuisance.  In recent years, prostitution has been called a “neighborhood livability crime.”  Were it legal and regulated it could be zoned into a red light district, as pornography has been in Minneapolis.  Another recent trend, the move of prostitution from the streets to the web, has reduced this issues a bit in recent years.
4. Corruption.
5. The above are all direct products of criminalization; while those below are related to the act of prostitution, but aggravated by criminalization.
6. Public Health.  Certain diseases are commonly spread through sexual activity, such as AIDS.  In places where prostitution is legal, regulation enforces frequent medical examinations, education, and makes police and other help more available to resist coercion.  Drug addiction overlaps with prostitution more where it is criminalized.
7. Morality.  Many view the act of prostitution as immoral and unethical as a general matter, though compared to others, a minor sin.  Of course, many things just short of it are viewed differently.  What about compassionate use of prostitution for the physically handicapped, etc.?  Should the ‘law of man’ allow one to exercise virtue, and leave the domain of saving souls to God’s law?  By binding someone’s hands, do you not prevent them from exercising the free will to be virtuous?  Which is more immoral, prostitution or criminal laws creating and aggravating all of these social harms?

Minnesota Laws on Prostitution

Prostitution is an unregulated crime in Minnesota, part of the underground economy.  Minnesota’s criminal statutes on prostitution address the both the common and the unusual.

By far the most common prostitution prosecutions in Minnesota are those against would be customers and providers.  These are generally the result of police sting operations, which employ deception.  Traditionally these began on the streets, often motor vehicles, or in storefronts or other places.  In recent years, they often begin online over the internet, for example on Craigslist.  These are generally charged as misdemeanor or gross misdemeanor crimes.

Felony prostitution crimes in Minnesota are relatively rare, and include those involving people under 18 years old, pimps and promoters, and coercion.  It is likely that the fact that prostitution in Minnesota thrives in an unregulated, underground economy makes it extremely difficult for law enforcement (police) to effectively investigate these kinds of problems.  Ironically, legalizing prostitution would make it vastly easier for law enforcement to target these higher priority problems directly (under 18 years old, pimps and promoters, and coercion).

By Minnesota prostitution lawyer  Thomas C Gallagher .

Let’s review Minneosta’s current law on asset forfeiture (government takes your money): 

1. The government (police) can take your property at any time if suspicious to them, even if you are innocent.
2. The burden is on you, not them, to do something about getting a court to look at it.
3. If you do nothing, they keep your property, your money; and you lose; without any court or judge ever even seeing the case.
4. If you want to do something about it, you need cash for a lawyer and court filing fees.  The law provides the government a free lawyer and requires them to pay no court filing fees.
5. The police agency that targeted you and took you down gets to keep 70% commission on the cash, valuables, your vehicle they seize from you.  Could this affect their honesty about their investigation; or, the appearance of propriety?

Property rights for common people are relatively recent individual human rights, against the government or the king.  In 1066, William the Conqueror seized nearly all the land in England.  He exercised complete power over the land, but granted fiefs to landholder stewards, who paid fees and provided military services as a condition for use of the King’s land and people. 

William the Conqueror

Centuries later, the Magna Carta asserted that cash payments were required for expropriations of land.  Over time, tenants held more ownership rights rather than only possessory rights over their land. 

The Third Amendment to the United States Constitution says: 

“No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.” 

The intention of this amendment was to prevent soldiers being quartered in private property as the British armed forces had done in Colonial America by under the Quartering Act before the American Revolutionary War. 

The Fifth Amendment to the United States Constitution says: 

“No person shall be … nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” 

The idea was to destroy what was left of feudalism, where the king or the government owns property, and the common people owned nothing, or owned nothing except at the discretion, whim or caprice of the government.  The third, fifth, eighth and fourteenth amendments of the United States Constitution all are attempts to further this goal.  But history has repeatedly shown us that this struggle for individual property rights against theft or seizure or taking by the ruling government has been ongoing.  Ground has been gained and lost, and gained again over the years, both in politics and in law. 

Hypothetical?

Imagine that you are peacefully driving down the road, having an average day.  Then, you are stopped by people in a vehicle armed with weapons.  They hold you against your will.  They question you in a threatening manner.  The ask for your “consent” to search you and your vehicle, though they make it  appear that it will happen regardless.  They take your personal valuables.  They seize your vehicle.  There is no court process.  It’s just gone.  They have it now.  You no longer do. 

What would you call this?  Armed robbery? 

What if the “people in a vehicle armed with weapons” who stopped you were police officers of the State of Minnesota, acting under the color of the laws of Minnesota?  Now what do you call it? 

“Administrative Asset Forfeiture.”  What does that mean?  

Asset forfeiture laws are a type of government “taking” of private property that has been around a long time, but they have degenerated in recent years from “Judicial Asset Forfeiture” after conviction into “Administrative Asset Forfeiture” on a police officer’s view of suspicion.  What’s the difference?  First, a little background and context. 

If you steal from a thief, is that stealing?

Ask Robin Hood, or the Sheriff of Nottingham.  

There are two basic moral justifications offered for laws permitting the government to seize and keep private property suspected to have some connection to crime – instrumentality and criminal proceeds. 

Instrumentality.  If a burglar uses special tools to commit a burglary, then the government seizes and keeps those as instrumentality of the crime, this may somewhat disable the burglar from committing a similar crime.  Almost all asset forfeiture seizures in Minnesota are of this type.  The instrumentality rationale for property forfeiture, however, has been stretched wafer thin.  It is now most commonly used in cases of suspected petty crimes like DWI, prostitution and banned drugs possession; not commonly in serious or violent crimes. 

Criminal proceeds.  This type is relatively rare, and involves and attempt to trace (equitable tracing) the source of the funds used to purchase an asset to crime.  These usually involve larger dollar amounts only, well over $100,000 per case.  The type of crime alleged is less important. 

Is the Property Guilty?  Is the Owner?

Nothing Personal: In Rem Jurisdiction.  Asset forfeiture cases, the few that ever make it into court, are usually captioned with the claimant as a party to the lawsuit against the property.  Rem is Latin meaning “thing.” When courts exercise in rem jurisdiction, they assert authority over a thing, not a person.  Like much in the law, there are historical reasons for this. 

If the justification for the “taking” of another’s property is that the owner is a criminal, or that the property is somehow related to crime; should we be certain that the owner really did commit a crime in connection with the property? 

Should police be able to seize and keep your vehicle or other property even though you’ve not been convicted of a crime?  Before you get a hearing before a fair and neutral magistrate? 

In Minnesota today, police can seize your vehicle or other property under circumstances they view as suspicious, keep it, sell it and keep the cash, unless you file a court challenge “EXACTLY AS PRESCRIBED IN MINNESOTA STATUTES SECTION …” within 60 days.  You’ll need money for lawyer and court filing fees – just to get a day in court.  The money they get from your property after they sell it?  “70 percent of the money or proceeds must be forwarded to the appropriate agency…” i.e., the Police Agency that originally took your Private Property.  This is Minnesota’s current “administrative” asset forfeiture scheme. 

What about ”Judicial Asset Forfeiture?”

Judicial asset forfeiture is slightly more fair in that it affords procedural due process – the right to notice and a hearing before a neutral magistrate before the government can permanently keep your property.  A serious problem with this type is that a criminal conviction is not currently required before the government can prevail in a judicial asset forfeiture case. 

Who are the victims of government asset forfeiture?

The salt of the earth - the common people of modest means have disproportionately been the victims of government abuses, negligence and shoddy practices in the area of criminal law generally.  When it comes to asset forfeiture laws, it is no different.  When police officers on an asset-forfeiture treasure hunt take cash, gold, vehicles, other valuables from a person who is never charged, never convicted of any crime; what is the cost-benefit ratio for that person to fight for return of the property in court?  Could they even afford (hire a lawyer, pay a court filing fee) to if they wanted to?  Can they do all that in time to meet the 60 day deadline?  Would that cost too much relative to what was stolen from them by police to be worth it?  Do they have enough faith in the legal process to believe it would be fair, anyway?  What will the medium term ramifications of this be, politically? 

The innocent are victims of asset forfeiture laws:  Sometimes the innocent owner is not accused of having any criminal association, but merely an association with another who is suspected, such as a spouse, parent or employer.  This is an anti-marriage law, that encourages divorce of a troubled spouse.  The Minnesota Supreme Court recently published a case that makes this clear, and a majority of the Justices asked the Minnesota legislature to reform the statutes, in the Laase case.  So will the legislature and the government heed this call, from the Court and form the People? 

Is the Minnesota government corrupt, victimizing the weak?  Are its laws a corrupting influence on our good police officers? 

Has the time has come to reform (or repeal entirely) asset forfeiture laws in Minnesota?  Call the legislature.  Support the Reform Bill. 

Author: Thomas C Gallagher, Minneapolis Criminal Lawyer.  Link to his Minnesota Drug Forfeiture Law page.

Divorce to Protect Your Property?

The court’s majority held that “innocent owner defense” in Minn. Stat. § 169A.63, subd. 7(d) (2008), does not apply in a case of joint ownership of a vehicle if one of the joint owners is also the offender causing forfeiture of the vehicle.   

The majority’s new rule is that all joint owners of a motor vehicle must be innocent in order for any owner to employ the innocent owner defense in Minn. Stat. § 169A.63, subd. 7(d).  

As Justice Paul Anderson points out in his dissent, 

“The context of the case before us involves a DWI forfeiture statute that contemplates both the ability of law enforcement agencies to seize and forfeit motor vehicles used in the commission of designated offenses and protection for innocent motor vehicle owners. Thus, the context within which we must conduct our analysis is a disfavored forfeiture statute that we must strictly construe which means that if we have any doubt about the application of the statute, that doubt is to be resolved in favor of joint owner … .” 

The case involves Minnesota’s DWI forfeiture statute which creates both a presumption that a person arrested for suspected DWI will forfeit their car to the State; and also contains an affirmative defense for innocent owners of cars driven by someone else arrested for suspected DWI.  What about the case where a car is jointly owned by two or more people, such as the family car that the non-offending spouse needs to get to work? 

Justice Page concludes his dissent with: 

“I would construe the word ‘owner’ to refer to each individual owner throughout section 169A.63. Thus, under subdivision 7(d), a vehicle is not subject to forfeiture if any of its owners can demonstrate that he or she, individually, did not know the vehicle would be used contrary to law. Similarly, under subdivision 7(d), it is up to each of the owners to demonstrate that he or she ‘took reasonable steps to prevent use of the vehicle by the offender.’ An owner that can make the required showing cannot be divested of his or her interest in the vehicle, which subdivision 1(h) instructs extends to the whole of the vehicle. Because Mr. Laase made the required showing, I would hold that his interest in the vehicle is not subject to forfeiture.” 

Is this another bad 4-3 splintered decision, with the slim majority again ruling against the rights of the individual?  So it would seem.  At least in this unjust situation, the Minnesota legislature could fix it next legislative session by amending the statute the court was interpreting.

Will the legislature repair this injustice in the law?  Public anger has been building for years over the use of asset forfeiture laws to legally steal private property, with the excuse of some crime having been committed, or the possibility of one.  The most frequent use of these laws has been in the areas of Minnesota asset forfeitures in drug cases, and in DWI cases.  Most of the injustices in these laws are common to all types of asset forfeiture statutes (whether based upon drugs, DWI or prostitution).  The innocent owner issue is only one of many. 

One of these issues is the conflict of interest created by allowing the law enforcement agency which legally steals the property from the citizen, to keep much of the money proceeds from that seizure and forfeiture.  Two of the Justices concurring with the majority in David Lee Laase  vs 2007 Chevrolet Tahoe highlighted the issue, in Justice Barry Anderson’s concurrence: 

“[T]here is reason to question the balance struck by the legislature between various competing interests.  For example, given the general disfavor of forfeiture statutes, the wisdom of vesting the right to possession of a forfeited vehicle in the law enforcement agency responsible for the arrest of a defendant and the forfeiture of a defendant‘s vehicle is not immediately evident. See Minn. Stat. §§ 169A.63, subds. 1(b), 2, and 3 (2008).  But such issues are for the legislature to address, not this court.“ 

Justice Gildea wrote the 4-3 majority opinion.  However, only one other justice joined her opinion, Magnuson.  The two concurring Justices wrote, in essence, that the law  was unfair and should be changed - but by the legislature not the court (see quote above).  The three dissenting Justices also noted the serious unfairness of the statute as interpreted by the majority opinion.  Therefore five of the seven essentially agreed on one thing – the statute allowing the government to take the private property of an innocent spouse or other co-owner is unfair and should be changed. 

This issue was referenced in a recent article in the Star Tribune newspaper, Crime fighters gone rogue, where a  leader of the Minnesota Gang Strike Force explained in relation to financial stress due to underfunding form the legislature, he: 

“… turned in 2003 to the only major source of cash he could find: money seized from suspected drug dealers, gang members and other targets. Over the next two years, Ryan told state examiners, his unit survived on virtually nothing else. 

‘We had no money and we were begging, borrowing and I hesitate to say stealing, that would be the wrong place, but … that’s the way we were operating,’ Ryan said, according to a transcript of his formal interview with the Legislative Auditor’s Office.” 

Is it fair to law enforcement officers to create laws like this with inherent conflicts of interest - inciting them to take from the poor, and give to their own agency of the government?  Can a normal human be completely immune to such powerful temptations?  Why should Minnesota laws encourage such mischief upon the individual people of Minnesota? 

Let’s see if the Minnesota legislature will reform forfeiture laws in Minnesota this year. 

By Thomas C. Gallagher, a Minneapolis Criminal Lawyer.

• The Snitch identifies Jesus and betrays him, but later refuses to testify.
• Prosecutor asks “why would they lie?”
• Jesus pleads the Fifth
• The Witness Corroboration Rule more stringent then, than now
• Politics influences criminal law
• Death Penalty for slaves and foreigners, not Romans

Witnesses Against Jesus

The Witness Corroboration Rule.

 Mark tells us: “And the chief priests and all the council, sought for witnesses against Jesus to put him to death; and found none.”

“For many bore false witness against him but their witnesses agreed not together”

“We had heard him say, I will destroy this temple that is made with hands, and within three days, I will build another made without hands.”

“But neither so did their witness agree together.”

Prosecutor asks “Why would they lie?”  Jesus Pleads the Fifth.

Mark continues:  “And the high priest stood up in the midst, and asked Jesus, saying, Answerest thou nothing?  What is it which these witness against thee?”

“But he held his peace, and answered nothing.”

Minnesota abandons the ancient Witness Corroboration Rule – a protection for the innocent.

Jewish law at the time required a conviction based upon a witnesses claims to be corroborated by other witnesses – to “agree together.”  Roman law did also, as did the laws of many other ancient civilizations.   This law continued throughout the ages, through English law which was inherited by us in the United States, as Common Law.  Many Common Laws were enacted into statute, including in Minnesota, including this one.  But in the late 20th Century Minnesota Statutes were amended to significantly water down and mostly destroy this ancient legal right, which had long served to protect innocents from false witnesses and false charges.

The Sanhedrin council deliberated then convicted him of the crime a false prophecy, had him bound and delivered to Pilate, the Roman Governor.   As a subject state, the government of Judea at the time did not have the legal authority to execute a death penalty sentence.  Previously, when they had that authority the Sanhedrin had four forms of it – stoning, hanging, burning, and decapitation – but not crucifixion.  Since they lacked the legal power to kill him, they brought Jesus to the Roman Governor Pilate to ask him to do so.  (By this time the death penalty had long been abandoned for Roman citizens.  It was only used against slaves and non-citizen foreigners.)

The Second Trial, to the Roman Governor.

Pilate had the legal authority to execute the Sanhedrin’s death sentence alone (to review the first trial), but chose to conduct another Trial, on a different criminal accusation,  instead.   Jesus was accused at this trial of a political (not religious, as before) crime – that of claiming to be The King of the Jews, a rebel against Roman authority.  The Romans already had a King of the Jews – theirs.  Any challenge to the authority of the Jewish government in Judea was effectively a challenge to Roman authority, since the Jewish King was subjugated to Rome.

As Mark tells us, 15:2:  “And Pilate asked him, Art thou the King of the Jews?  And he answering, said unto him, Thou sayest it.”

“And the chief priests accused him of many things but he answered nothing.”

“And Pilate asked him again, saying, behold how many things they witness against thee.”

“But Jesus yet answered nothing; so that Pilate marvelled.”

 The Passover lenity tradition.

 These events took place during the week-long Passover time.  Tradition held that the People should be granted the freedom of a condemned.  A rebel named Bar-Abbas was proposed along with Jesus as a possible candidate for leniency.  Though Bar-Abbas, and not Jesus, was granted leniency by the Roman Governor, the motivation for this is disputed.  The writers of the Christian Gospels seem to want to absolve the Roman Governor and blame the crowd.  But Radin points out that the crowd was indoors, smaller, and included many of those who had convicted him previously, and that Bar-Abbas was popular locally.  Radin also points out that the early Christians were mostly Greek and Roman, not Jewish; and their could have been a motive to slant the story to appeal more to potential Roman converts.  And Christianity did become a religion largely of Rome, not the Middle East.  This part of the story has been characterized as another trial of sorts, like a sentencing trial.  Radin is convincingly skeptical of this idea.  Another misuse of this part of the story has been the efforts of some to make it seem conflict between Christians and Jews, based upon Faith.  But, in reality it was not.  There were few Christians then and many religious leaders with small followings.  It was instead a continuation of the politically motivated killing of a feared rebellion against Roman authority and its local puppet government.

A Parade of Humiliations.

The Roman Governor sentenced Jesus to crucifixion, which included “scourging” before.  But a parade of other humiliations preceded those.   Consistent with his conviction for the crime of claiming to be the King of the Jews, Roman soldiers (most of whom were not from Rome) clothed him in purple, like a king, and put a crown of thorns on his head, then hit him on the head.  They put him back in his old clothes.  They plucked his beard.  They scourged him.  The Roman death penalty of crucifixion caused death because of the scourging – a brutal whipping with objects on the whip strands clawing away skin, flesh and muscle down to the bone.  The scourging was done short of killing the person.  At one time, the scourged person was then bound to a tree, which was later replaced by a timber gallows or Roman cross.  Death was slow and painful and public.  Death was by suffocation.  Sometimes soldiers or passersby took pity on a person hanging on a Roman cross and would give them “vinegar” or a low quality wine with myrrh – to help dull the mind and relieve the pain, and perhaps hasten the death by suffocation.  (The person had to stand on their feet, as hanging by the arms would suffocate them.)  Jesus was made such an offer but refused.

The Romans put a sign over the head of Jesus on the Roman cross saying, “THIS IS THE KING OF THE JEWS.”  The crucifixions were done near a road in a public place, as examples of what kind of criminal behaviors people should avoid.  Jesus was crucified near other convicted criminals, as was commonly done along the roadway.  His accusers came to mock him there, challenging him to come down if he really were Messiah.

Radin discusses the Judas story with some skepticism, and provides a basis for that skepticism which you can find in his book.  One observation bears repeating here, however.  Judas was one of the twelve disciples at the Last Supper, of course.  He is said to have betrayed Jesus and become a snitch for the authorities, by identifying him at the time of his arrest (before the trials).  There are differing accounts of what happened with Judas after that.  But, as Radin points out, Judas did not testify against Jesus at either trial - at the religious crime trial, or at the political crime trial.  Criminal lawyers are familiar with this phenomenon, and the various reasons that can sometimes explain it.

Radin’s book is wonderful.  It examines not only the Christian Gospels versions of the trials, written a couple of hundred years after the fact, but also the limited contemporary commentators, about these events.  He explores the historic and political context, which helps us understand what really may have happened – apart from simply accepting the conflicting Gospels at face value.

As criminal lawyers,  we can appreciate the use of criminal laws and trials by the religious and political authorities to put down a threat to their power.  Along the way, we have a snitch who assists the arrest but won’t testify.  We have a highly intelligent accused, without a lawyer, who refuses to answer questions or accusations by witnesses, prosecutors or the authorities.  We have documentation of the ancient right to require witness corroboration of the details of an accusation.  And we have an ancient record of the rejection of the death penalty for civilized people, though not for the less civilized.

Yes, there is much more yet, to this great story which truly brings history to life.  There are also lessons here, for those interested, about criminal law and trials.

By Thomas C Gallagher, Minneapolis Criminal Lawyer.

Water Bong

The Minnesota Supreme Court, in a 4-3 decision, has now ruled that Bong Water (water which had been used in a water pipe) was a “mixture” of “25 grams or more” supporting a criminal conviction for Controlled Substance crime in the first degree.  The crime is the most serious felony drug crime in Minnesota, with a maximum penalty of 30 years in prison for a first offense.  The case is Minnesota v  Peck, A08-579, Minnesota Supreme Court, October 22, 2009.