How to Avoid a Marijuana Arrest in a Car in Minnesota: Top Nine Tips

The other day I was talking to a prosecutor.  I let him know that my objective was to keep my client’s public record clean of words like “marijuana,” “drug paraphernalia,” and “criminal conviction.”  He responded mischievously with “You know how he could avoid all that don’t you?  Don’t get caught.”  He was joking, but like many jokes there was some truth in it.

As of this writing, eight states in the U.S.A. have legalized marijuana for responsible use by adults 21 years and older; and, the majority of the U.S. population now lives in a state with legal medical marijuana.  We should all know by now that marijuana is safer than alcohol.  There is no lethal overdose possible with marijuana, unlike alcohol, aspirin, and many prescription drugs.   But in Minnesota in 2017 despite a majority in the polls favoring legalization, criminal Prohibition lingers on, destroying innocent lives.

What can you do to reduce the chance of getting caught? Here are nine tips:

  1.   Situational awareness.  Guess where the vast majority of police contacts with people happen?  Correct – in or near a motor vehicle.  As a result, the most effective way to avoid a marijuana criminal charge is to avoid having marijuana in your vehicle.  Complacency can set in.  If it hasn’t happened yet, it never will.  Right?  The smart attitude is that if a scenario is unlikely, with repetition (miles traveled in the car), it will inevitably happen.  There will be a traffic stop.  When it does happen; marijuana should not be in the car.  If the prudent marijuana smoker does carry marijuana in the car only when absolutely necessary, he or she keeps it under the “small amount” 42.5 grams if plant form (not concentrates), but always in the trunk of the car (to avoid a “marijuana in a motor vehicle” charge).
  2.   Odor.  The most common excuse used by police officers as probable cause to search a car after a traffic stop is “odor of marijuana” – either fresh or burned.  This is prone to abuse by police officers since it’s impossible to verify.  Even so, to prevent getting caught with marijuana in your car avoid having the odor of marijuana either on your person or in your car.  And, if you do have the odor of marijuana on your person or in your car, be sure not to have any actual marijuana in your car.  Have you or anyone you know experienced “nose blindness?”  A person who has smoked a cigarette may not be able to smell the odor of past cigarette use on another person.  The same for a person who has been drinking an alcoholic beverage – can’t smell the odor of alcohol on another person.  But non-users can smell it.  It’s best to assume that if you’ve been smoking it that day, there may be odor.  If it’s been smoked in the car, the odor is probably lingering in the car for a day or more.  (Tip: don’t ever smoke in the car.)

    “I’m late, for a very important date.”

  3.   Consent?  “No, officer, I do not consent to a search.” Like Paul Simon’s song “50 ways to leave your lover,” there are at least fifty ways to tell a police officer that you do not consent to any searches.  Make an excuse if you like: “I’m late, for a very important date.”  But no excuse is necessary.  You should not offer any justification for refusing a search.  Be confident and politely insistent. It’s your legal right to be secure from searches and seizures by police unless they have a search warrant or an exception to the warrant requirement.  One of those exceptions is a consent search.  Police often ask people “do you mind if I search”?  The correct answer is, “I do not want to be searched.”   If you do consent to a search, you’ve waived your right to object later to the otherwise unlawful nature of the search.  Also, if police know they have no legal basis to search without “consent,” then they may leave without searching.
  4.   You can do both: don’t lie and don’t admit. How?    Remain silent.  Or if words come out of your mouth make sure that they are not lies, and do not relate to illegality.  More than half the people stopped by police in traffic, when questioned about “marijuana in the car?” after the police officer claims “odor” will either lie or admit having marijuana in the car, often then telling the police where it is.  Wrong!  Instead, remain silent – meaning words are not produced by you.  Tightening your lips may help your resolve.  If you do say something, change the subject and avoid talking about whether there is marijuana in the car or not.  And again, do not consent to a search.  Police will try to make you think: “Busted.  The jig is up. May as well come clean now.  Give up.  You cannot win at this point.”  But don’t believe it for a minute!  You need to be prepared.  Knowing the law can help keep your confidence level up, and help you avoid or minimize legal trouble.
  5.   Unlawfully prolonged detention: “Am I free to leave?”  Here is the scenario.  You’re stopped by police for a headlight out, or speeding.  Normally it takes five or ten minutes for a police officer to complete the process, hand you the ticket, encourage you to pay it without taking it to court, and walk away.  You understand that to mean that the government intrusion upon your liberty is now over and you are “free to leave.”  Now, let’s change the scenario.  You’ve been stopped for something normally resolved with a traffic ticket within five minutes, but this time the officer is prolonging the detention.Is that legal?  Suffice it to say that the courts will apply a balancing test under the “totality of the circumstances” to determine whether they think the greater intrusion upon your Liberty interest was balanced by a greater level of reasonable suspicion of criminal activity.  But one of the factors courts will consider is: “to what extent did the person acquiesce to the detention vs. assert and communicate a desire to end it and leave?”  A common game played by police in court is to claim that “at that point, the person was free to leave and the prolonged time was consensual.”  If believed, then the prolonged detention might need less justification, fewer facts supporting a reasonable suspicion of criminal activity.Since “Fleeing a police officer” is a crime in Minnesota – whether in a motor vehicle or on foot – whether a person is begin “detained” by police or not, ought to be a simple black and white question.  Either you are “free to leave” or not.  The best way to make a record of that is to ask: “Officer am I free to go now?”  And don’t just do it once.  Do it more than once.  Say it loud and clear, for the camera and microphones.  This will help your lawyer challenge the legality of the search and arrest later, should it come to that.  At times it can be a good idea to just start slowly walking away, to force the police officer to tell you to stop.  (Yes, you can walk away from a car stop even if you’re not the passenger.)
  6.   “You have the right to remain silent.” When you hear that, that is your cue to – what?    It’s your cue to stop forming words and allowing them to escape your mouth!  If you want to say anything, you can say:  “Officer, I realize you are doing your job but I am not a lawyer or a police officer.  I need to assert my legal right to remain silent, and to consult legal counsel before answering questions or talking about this situation at all.”  Repeat as necessary.  No matter what they do or say, they cannot require you to speak.  So don’t.  If police direct you to show your hands, lie down, hands behind your back, stand over there, and the like, follow their commands.  But do not speak.
  7.   Field Exercises. Sometimes police may want to build a case for impaired driving.  When they do, they will ask you to perform what they optimistically term “Field Sobriety Tests.”  These are not scientifically valid and are designed to incriminate.  Even completely sober people have a difficult time “passing” them.  What to do?  Don’t!  Police cannot legally require anyone to do these field exercises, such as the “Nine-step walk and turn,” “Horizontal Gaze Nystagmus” eye test.  You can and should refuse to do any of these.  When you do, the police officer may invite an excuse.  But don’t take that bait.  Any excuse could be incriminating, even if falsely.  Instead you can say: “Officer, I am aware of my legal rights and I respectfully choose not to do any field exercises or tests.”  You may get asked repeatedly.  If so, just keep repeating that you choose not to do them – no excuses.  (Who cares if you have one leg! That’s beside the point.)  It’s your legal right.  (Note that if the police officer has factual reason to suspect impaired driving and requests that you blow into a Preliminary Breath Test (PBT) machine and you refuse to blow, you can be arrested in Minnesota for that refusal.)
  8.   Smile, you’re being recorded. From the beginning of a traffic stop, to sitting in a squad car, to the police station or jail, it’s best to assume that you and all you say are being recorded.  This recording may later hurt you, or help you.  Even when alone or with another person in the back of a police car, this is normally recorded – even when no police officer is in the car.  Phone calls from jail are almost always recorded for potential later use as evidence.  Be aware of this.  Avoid talking about the case in any of these contexts.
  9.   Keep your cool if arrested. Hitting the panic button will only make it worse.  Police may try to exploit your trauma and emotional upset.  Remain calm.  The long game can be won, by playing defense in the short game.  You or someone on the outside can help you contact a Minnesota criminal defense lawyer and if need be a bail bond agent.  Most people will be able to get out with a few days or less.

Thomas C. Gallagher is a Minneapolis marijuana lawyer frequently representing people charged with possession of marijuana and related “crimes” in Minnesota.

Comments and responses below.

Thomas C. Gallagher Elected Chair of Minnesota NORML Board of Directors – Marijuana Legalization in Minnesota

On September 16, 2017 the Board of Directors of Minnesota NORML elected Thomas C. Gallagher to the position of Chair of the Board.  Gallagher is a Minneapolis Criminal Lawyer who twice campaigned for election as a Representative in the Minnesota House in District 61B (incumbent Paul Thissen) in 2014 and 2016.  He was the endorsed candidate of Republican Party of Minnesota in both election cycles.

“Minnesota NORML is a non-partisan Minnesota Nonprofit with 501(c)(4) status,” Gallagher noted.  “Our goal is legal marijuana in Minnesota for responsible adult use.  Minnesotans should have equal rights to cannabis as to beer and wine.  This means age 21 and older, taxed and regulated the same as beer and wine, and legal small batch home production.”

Thomas C. Gallagher, Chair, Minnesota NORML

“Home grow” Gallagher said, “is essential.  Ending marijuana prohibition is only incidentally about marijuana; it is really about personal freedom.  We want to empower the People, support Liberty for all.  With legal home grow, anyone can grow their own cannabis for medicinal or personal use with little money.  Freedom should not be limited to people with money.”

“Now that all major polling shows majority support for legalization of marijuana (and a super-majority for medical marijuana), why – in a democracy – is the will of the People not yet enacted into law?” Gallagher asks.

If our elected officials lack the political courage to enact the will of the People, then we say “Let the People Decide!”  Bills in the Minnesota legislature would place a constitutional amendment on the general election ballot to, finally, legalize marijuana for responsible adult use like beer and wine.  Even politicians unwilling to support legalization should be able to support democracy, the vote and “allowing” the People to decide.  We support these Bills.

“It’s not inevitable.  There are vested interests who now profit from the current Prohibition regime fighting hard to reverse the progress we’ve made, and to stop the return of Freedom to the People of Minnesota,” Gallagher warned.  “’How soon will it be legal?’ people ask me.  ‘How soon will you join us working hard to make it happen?’ is my smiling reply” says Gallagher.

Minnesota NORML holds monthly Members Meetings and other events and activities to help people connect and get involved.  For further information:
http://mnnorml.org
https://www.facebook.com/mnNORML

#LetThePeopleDecide

The Romeo and Juliet Syndrome: Minnesota Sex Crimes Based On Age

In Shakespeare’s Romeo and Juliet, Lady Capulet says her daughter Juliet is “not yet fourteen,” being about two weeks from her fourteenth birthday.  Though we never are told her lover Romeo’s age, it’s apparent that he is also a teen, older, but still of tender chin (without beard).  Each from families bearing grudges towards each other, the star-crossed lovers’ fate is tragic.  But were they criminals?  Not then, as Juliet’s mother makes clear.

Would they be criminally prosecuted for age-based sex crimes in Minnesota today?  Young people like them can be and often are prosecuted in juvenile and adult criminal courts in Minnesota.  Should they be?  Should we instead change the laws in Minnesota to decriminalize young love?  Should foolish love be a crime?

 “Oh, what a tangled web we weave; When first we practise to deceive!” (from Marmion; A Tale of Flodden Field, by Sir Walter Scott.)

Age-based sex crimes are crimes based upon some aspect of sex, plus a too-young age.  Common law rape required an element of force, coercion or lack of consent.  The more modern invention, often-called “statutory rape” since it does not require an element of force or lack of consent, involves quite consensual acts.  But it rests upon the legislative fiat that a person younger than 16, for example, is so feeble-minded as to be incompetent to consent to sexual acts.  (See, Minnesota Statutes §609.342, subdivision 1 (a) “Neither mistake as to the complainant’s age nor consent to the act by the complainant [sic] is a defense.” The “complainant” is usually opposed to the prosecution.)  This premise appears deceptive – the more so considered next to the fact that in Minnesota the minimum age for competence to be criminally prosecuted in a delinquency petition is ten years old. See, Matter of Welfare of S.A.C., 529 N.W.2d 517 (Minn. App. 1995).

Why would the same body of law, the same jurisdiction, consider a ten year old competent to form intent in her mind to do a criminal act, but consider a thirteen year old incompetent to intend to have sex?  A tangled web, indeed.

O Romeo, Romeo, wherefore art thou Romeo?

“O Romeo, Romeo, wherefore art thou Romeo?”

Do we really want to permanently label our Romeos and Juliets sex criminals, for the crime of being young lovers?  Do we want them to have to Register as a Predatory Offender for a minimum of ten years up to life?  Though many of Minnesota’s Criminal Sexual Conduct statutes contain exceptions for lovers within a range of 24 to 48 months depending upon the crime, for those outside these exceptions “mistake of age,” they say, is not a defense.

 “The Party was trying to kill the sex instinct, or, if it could not be killed, then to distort it and dirty it.”   — George Orwell (1984)

These days, one could categorize the growing list of sex crimes based upon proximity: penetration, touch, and non-touch.  When sexual penetration is criminal, it is a more serious crime than touch, which in turn is generally thought to be more serious than non-touch.  Examples of non-touch sex crimes include child pornography or indecent exposure.

Before our modern day Romeo and Juliet became lovers, their flirting included sexting.

Young lovers have been around long before Minnesota criminalized them.  But some non-touch sex crimes are an artifact of recent technology, like smart phones.  Most kids have them these days, and take pictures with them, sometimes naked and arguably sexual images of themselves.  Then they share them with each other over cell phone towers and Wi-Fi connections to the internet.  The images may be stored on their phones or in the data cloud.  Sexting is a new word meant to describe sex texting – sending images via text messaging applications.

Minnesota laws have not kept pace with the times.  Should every foolish act be made a crime?  Our laws criminalizing child pornography are now being used to prosecute young people for taking naked and arguably sexual images of themselves, then sharing them with each other.  A criminal Complaint or Petition for Adjudication of Delinquency accuses them of Possession of Child Pornography, Dissemination of Child Pornography, or both, under Minnesota Statutes §617.247.  Such prosecutions appear to violate the young person’s fundamental right to freedom of speech and expression under the First Amendment of the U.S. Constitution as well as the Minnesota Constitution.  Better, let’s change the laws to make them less unfair.

 Can a juvenile be a “predatory offender” due to sexting or being a young lover?

Labeling juveniles “predatory offenders,” requiring them to register their whereabouts, vehicles, schools, addresses, and on and on; and sending them to lock-up in prison of they slip up any little part of doing so – is that what we really want to do after a juvenile has had consensual sex with his or her beloved, or after sexting?

Rehabilitation vs. Predatory Offender Registration for ten years to life.

Juvenile courts were a result of social reform movements of the late 19th Century.  Rather than criminally prosecute juveniles like adults, a separate juvenile court has been set up with a greater focus on rehabilitation for those adjudicated responsible for some “criminal” act.  An important aspect of juvenile courts is that they have traditionally been non-public – confidential – to protect the juvenile from severe collateral consequences, and allow the kid to leave youthful mistakes in the past.  In recent years, that has been eroded to a degree.  In Minnesota, if a juvenile is charged with a felony and is 16 years or older, the case is public. (Almost all “sex crimes” are felonies in Minnesota.)

Current Minnesota statutes contain no juvenile exception for “predatory offender registration.”   See, Minnesota Statutes § 243.166.  This conflicts with the main, rehabilitative purpose of juvenile court and its protection of juveniles from life-long public exposure.  The only ways to prevent a juvenile charged with a sex crime from being required to register with the state as a sex criminal for ten years to life; is to get the entire case dismissed, an acquittal, or a stay of adjudication.  An adjudication triggers registration, under current law.  Criminal lawyers and courts can wrestle with these things, to try to save some young people from the jaws of the law.  But wouldn’t it be better to change the laws to make them less unfair and less harmful?

Thomas C. Gallagher is a Minneapolis criminal lawyer who handles sex crime defense cases and juvenile delinquency cases in Minnesota, including those involving claims of criminal sexual conduct based on age, and sexting child porn cases.

Forfeiture Law: Minnesota Legislature Protects Marriage, Brings Back Innocent Owner Defense for Co-Owners

Imagine that you are married to someone who has been struggling with alcohol addiction.  Your spouse has been sober for an encouraging length of time.  Then one day you get a call.  Your spouse has had a slip and been arrested for DWI.  The police have seized your $40,000 car – the one he or she was driving at the time – for administrative forfeiture.  That doesn’t feel right, does it?  Could it be the last straw that stresses and breaks a struggling relationship, leading to another failed marriage?

Effective August 1, 2017 in Minnesota, as an innocent owner you will now be able to challenge the forfeiture of your vehicle to the government in court and assert the “innocent owner defense” even where your spouse was the DWI driver of that vehicle – thanks to the Minnesota legislature and Governor this year.  The new law, which amends Minnesota Statutes Section 169A.63, subdivision 7, effectively overrules a 2009 Minnesota Supreme Court case, Laase v. 2007 Chevrolet Tahoe, 776 N.W.2d 431 (Minn. 2009).  In that case the court’s majority held that “innocent owner defense” in Minn. Stat. § 169A.63, subd. 7(d) (2008), did 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 rule was 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).  For a discussion of the Laase case the day the decision was released click here: Minnesota Supreme Court Rules Against Innocent Spouse under DWI Car Forfeiture Statute.

Though spouses may be the most often affected, as co-owners of a vehicle with a DWI offender, the law in this area goes beyond spouses and applies to “family or household members” of the offender who are co-owners.  The definition of “family or household member” is broad, and includes a parent, stepparent, or guardian; persons related by blood, marriage, or adoption as brother, sister, stepbrother, stepsister, first cousin, aunt, uncle, nephew, niece, grandparent, great-grandparent, great-uncle, great-aunt; and persons residing together or persons who regularly associate and communicate with one another outside of a workplace setting.

Who is an “owner?”  The innocent owner defense statute defines “owner” as “a person legally entitled to possession, use, and control of a motor vehicle, including a lessee of a motor vehicle if the lease agreement has a term of 180 days or more. There is a rebuttable presumption that a person registered as the owner of a motor vehicle according to the records of the Department of Public Safety is the legal owner.”  Note that the car title is prima facie evidence of ownership.  In other words, it creates a rebuttable presumption.  Ownership can be proven by other evidence as well.

What is the innocent owner defense?   As of August 1, 2017, Minnesota Statutes 2016, section 169A.63, subdivision 7 “Limitations on vehicle forfeiture.” will read:

“(d) A motor vehicle is not subject to forfeiture under this section if any of its owners who petition the court can demonstrate by clear and convincing evidence that the petitioning owner did not have actual or constructive knowledge that the vehicle would be used or operated in any manner contrary to law or that the petitioning owner took reasonable steps to prevent use of the vehicle by the offender. If the offender is a family or household member of any of the owners who petition the court and has three or more prior impaired driving convictions, the petitioning owner is presumed to know of any vehicle use by the offender that is contrary to law. “Vehicle use contrary to law” includes, but is not limited to, violations of the following statutes:
(1) section 171.24 (violations; driving without valid license);
(2) section 169.791 (criminal penalty for failure to produce proof of insurance);
(3) section 171.09 (driving restrictions; authority, violations);
(4) section 169A.20 (driving while impaired);
(5) section 169A.33 (underage drinking and driving); and
(6) section 169A.35 (open bottle law).”

The burden of proof is on the owner petitioning to get their car back, to prove by “clear and convincing evidence” either that he or she “did not have actual or constructive knowledge that the vehicle would be used or operated in any manner contrary to law” or that he or she “took reasonable steps to prevent use of the vehicle by the offender.”  The term “constructive knowledge” is not commonly used outside a legal context.  “Constructive” here means, essentially, circumstantial evidence proving “knowledge.”  It may refer to the list that follows, for “family or household members” who are  “presumed to know of any vehicle use by the offender that is contrary to law.”  Though that last phrase may be ambiguous, it seems to refer to past (as opposed to future) “vehicle use by the offender that is contrary to law.”  This presumption is rebuttable, however, and so does not seem to change the burden of proof, already upon the owner asserting the innocent owner defense.  In other words, the burden is on the owner asserting lack of knowledge that he or she did not know.

Thomas Gallagher is a Minneapolis DWI Defense Lawyer who regularly represent people in forfeiture cases.

 

Less Than One-Quarter Gram Possession Gross Misdemeanor Crime < New Minnesota Laws 2016

The 2016 Minnesota Legislature made some changes to Minnesota “Controlled Substance” crime laws, effective August 1, 2016.  One of those created a new Gross Misdemeanor level crime for certain “controlled substance” possession crimes, for less than 0.25 grams or one dosage unit or less – but only for a person “who has not been previously convicted of a violation of this chapter or a similar offense in another jurisdiction; and only for possession of “controlled substances” other than heroin.  This is an improvement since before this new law, even these tiny amounts were charged as felony level crimes; and since a felony conviction can render a person unemployable in many jobs, lifetime loss of civil rights, severe immigration law consequences, and other big problems.

The statutory language is:

Minn. Stat. §152.025, Subd. 4 (a)(1) “the amount of the controlled substance possessed, other than heroin, is less than 0.25 grams or one dosage unit or less if the controlled substance was possessed in dosage units …”

hash-quarter-gram-lighter

one-quarter gram of hash relative to the size of a lighter

Does this mean defense lawyer will no longer need to litigate trace amount issues and cases?  No.  A Gross Misdemeanor is still a serious crime.  Also, this new law does not apply to heroin or federal cases.

What about marijuana, including derivatives such as hashish, wax, dabs?  Minnesota law still defines possession of a “small amount” of plant-form marijuana as a petty misdemeanor (not a crime, violation-fine only).  Minnesota Statutes §152.01, Subd. 16 defines Small amount: “‘Small amount’ as applied to marijuana means 42.5 grams or less. This provision shall not apply to the resinous form of marijuana.”  So, 0.24 grams or less of plant-form marijuana could be charged a petty misdemeanor violation, not a gross misdemeanor.  When it comes to the “resinous form of marijuana” (presumably hashish, wax, dabs, etc.), however, the “small amount” definition would not apply but the new trace amount Gross Misdemeanor possession law would apply – rather than a felony crime as before August 1, 2016.

What drugs could be charged as a quantity expressed in dosage units, rather than weight?  These could be divided into two categories: prescription drugs and underground economy drugs.  Most prescription drugs are made into and possessed in pill form.  A “dosage unit” could be one pill, or could be more than one pill, depending upon the recommendation of the drug maker, pharmacist, or prescribing physician.  For underground economy drugs, “one dosage unit” could be more than one pill, or more than one square of blotter paper with LSD on it.  For example, see State v. Palmer, 507 NW 2d 865 (Minn.App. 1993) (“four small squares on each sheet constituted a ‘hit’ or dosage unit.”).  Medical marijuana produced by a legal maker may be the same as prescription drugs, in terms of evidence of dosage units.

What about Minnesota Pretrial Diversion programs and statutory Stays of Adjudication under Minnesota Statutes §152.18?  They are still available for those charged with Minnesota Fifth Degree “Controlled Substance” Crime Fifth Degree, Gross Misdemeanor, since the Gross Misdemeanor charge is a Fifth Degree charge against a person without prior drug convictions.

Thomas Gallagher is a Minneapolis Drug Defense Lawyer.  He is also a member of the Board of Directors of Minnesota NORML.

Jesus as Criminal Defense Lawyer: The Woman Accused of Adultery

What can we learn about criminal law from the story of the Jesus and The Adulterous Woman in John Chapter 8 of the New Testament?  We can learn about what criminal defense lawyers do.  We can learn about the laws of evidence.  We can learn about a jury’s right and power to sentence.  We can learn about connecting persuasively with people.  First, the story from John Chapter 8:

But Jesus went to the Mount of Olives.  At dawn He went to the temple complex again, and all the people were coming to Him. He sat down and began to teach them.

Then the scribes and the Pharisees brought a woman caught in adultery, making her stand in the center. “Teacher,” they said to Him, “this woman was caught in the act of committing adultery. In the law Moses commanded us to stone such women. So what do You say?” They asked this to trap Him, in order that they might have evidence to accuse Him.

Jesus stooped down and started writing on the ground with His finger. When they persisted in questioning Him, He stood up and said to them, “The one without sin among you should be the first to throw a stone at her.”

Then He stooped down again and continued writing on the ground. When they heard this, they left one by one, starting with the older men. Only He was left, with the woman in the center. When Jesus stood up, He said to her, “Woman, where are they? Has no one condemned you?”

“No one, Lord,” she answered.

“Neither do I condemn you,” said Jesus. “Go, and from now on do not sin anymore.”

John 8:1-11 HCSB

Christ and the woman caught in adultery, Pieter Brueghel the Younger's oil on panel version of c. 1600

Christ and the woman caught in adultery, Pieter Brueghel the Younger’s oil on panel version of c. 1600

What do criminal defense lawyers do?

In this story, Jesus shows us what criminal defense lawyers do.  We defend the human being accused of a crime, facing a punishment if convicted of a crime under the laws.  In this case the crime was adultery and the punishment for a person convicted under the laws could be death – death by a group of people throwing stones at you until eventually dead, a death by torture.  No doubt the law and the proscribed punishment were designed to deter the criminal behavior.

The accused person could testify on her own behalf, though throughout our legal history at times the accused has not been allowed to testify due to presumed lack of credibility.  But even with the right to testify on her own behalf, having an advocate speak for the accused gives her a better chance of being heard, fairly.  Here, Jesus speaks for her, and advocates for her life.  This is the most important thing a criminal defense lawyer does.  It is our sacred duty, our sacred honor.

The outcome sought by the advocate for the accused is the one desired by the accused.  Anything else would make us not an advocate, unethical or a failed advocate.

The means of achieving that outcome is our knowledge of the law (including the law of evidence and the law of jury power), and our ability to connect with people persuasively.

The laws of evidence. 

The laws of evidence in the early twenty-first century United States can be traced back to the time and place of Jesus, and earlier.  Jesus knew the laws well.

The laws of Moses required that before someone could be sentenced to death there must be two or more witnesses to the crime – a rule against hearsay, a right of confrontation, and a corroboration rule. Deuteronomy 19:15.  One accusing witness was not enough to trigger the death penalty.  Deuteronomy 17:6. Jesus and the crowd were told (“they said to him”) that the woman was reportedly “caught in the act.” Yet there is no witness or witnesses identified nor is there any witness testimony. This would make a death penalty illegal under the law.

Had there been two or more witnesses present to accuse and claim to be witness to the woman’s adultery, the law proscribed the death penalty for both the woman and the man. Deuteronomy 22:22 (“If a man is discovered having sexual relations with another man’s wife, both the man who had sex with the woman and the woman must die”).  Where is the man? How do we know the man is not any one of the men in the de facto jury?  The prosecutors do not have the man who they claim committed adultery with the woman.

After the accusers all have left, Jesus asks a legal question: “Woman, where are they? Has no one condemned you?”  With no accusers remaining, our attention is drawn to the requirement of eyewitnesses to the crime before guilt could be established and a sentence imposed. Jesus’ statement: “Neither do I condemn you” can be interpreted to mean that Jesus was no eyewitness to any claimed behavior of the woman, especially in the context of what came before, concerning the lack of the legal requirement of eyewitnesses.

One interpretation of the story can be that Jesus gained her acquittal by skillful use of the laws accepted by the jury.

A jury’s right and power to sentence

We should note here that it is not at all clear that the woman was put on trial in the formal, proper manner proscribed by the laws of the time and place.  The contrary appears more likely (not unlike the Trial of Jesus, later).  And yet, we can still use the story to illustrate the jury’s traditional right and power to sentence.

Whether a proper, lawful trial or not – the accusers were urging a death by torture sentence be carried out by the crowd, right there on the spot.  Jesus, acting as the woman’s advocate, invoked not only the law and its requirements; he also made a direct appeal to the right, the discretion, and the power of the de facto jury to refuse to convict her.  Today we have many terms for this including jury lenity and jury nullification.  Jury lenity is the jury’s right to be more lenient than the law requires.  Jury nullification is the right or power of the jury to acquit a person (not-guilty verdict) even where it believes the accused was lawfully proven to have violated the letter of the law.  As often is the case, it is difficult to know whether the de facto jury walked away after the appeal of Jesus in deference to the laws of evidence or out of compassion.  But when Jesus said: “The one without sin among you should be the first to throw a stone at her,” was this not a plea for compassion?  His later statement to her: “Go, and from now on do not sin anymore,” implies that perhaps she did sin, but either lawful proof was lacking, or both he, the jury, and the accusers were blessed with compassion for her.  If so, this could have been an appeal to jury nullification or lenity, as well as an appeal to follow the laws of evidence and of a fair trial – either or both.

Connecting persuasively with people.

The ancient Greeks, Aristotle, spoke of ethos, pathos, and logos as the paths of persuasion.  Clearly the ethos of Jesus was also on trial.

“Ethos” is an appeal to ethics – a means of convincing someone of the character or credibility of the persuader – here Jesus.  After all, Jesus had returned there again to teach his gathered students, writing on the ground.  The scribes and the Pharisees then brought a woman before him and his students and accused her of adultery demanding her death, “to trap Him, in order that they might have evidence to accuse Him.”  It seems the poor woman may have been a pawn in a game designed to destroy the ethos, the credibility of Jesus to his students.

The description of his behavior shows Jesus’ confidence.  He is a teacher, interrupted as he is writing on the ground.  He is addressed with respect.  (Ethos goes both directions.)  He listens with respect.  He makes his short argument on her behalf, then resumes writing on the ground quietly, waiting for the people for do the right thing.  We see social mirroring.  We see the invocation of shared values and laws.  He is connecting.  Jesus makes good use of his ethos to persuade.

“Logos” is an appeal to logic – a way of persuading an audience by reason.  Jesus has pointed out the lack of an eyewitness, the lack of corroboration by two eyewitnesses, the unlawful hearsay accusation, the lack of an identified male accused adulterer (“caught in the act?”) , the lack of confrontation of witnesses — all contrary to law.  These are all appeals to logic, that the proposed conclusion is not proven under the law by the evidence supplied by the prosecutors.

“Pathos” is an appeal to emotion – a way of convincing an audience of an argument by eliciting an emotional response.  “The one without sin among you should be the first to throw a stone at her.”  Jesus challenges each listener to publicly declare that he or she is without sin.  He equates being the first to throw a stone at her with being the first to publicly declare being without sin – impossible for an honest person.  This challenge pierces right to the heart of any human being, requiring us to shift focus away from the accused woman, and to look inside to search within ourselves instead.  He correctly asks the jury to question whether the issue is really about them, not the lady accused.  She is not “the other:” they are like her – connected by something in common.  He inspires them to be greater than who they might have been, the low identity they had been invited to assume by the prosecutors.

Thomas C. Gallagher is a Minneapolis Criminal Lawyer, interested in both history and the law.

Disparity of Force and Self-Defense

As a defender of self or others from criminal violence, you’ll be aware of the situation and make your best assessment in the moment. As you do, you will consciously or unconsciously note various factors that will guide your mental attitude and response actions.

In the event of the use of force in self- defense, you may be required to justify your use of force, legally. Most of the factors that a jury, judge, law enforcement officer, media, and the community will consider will be the same as the factors you consider at the moment of threat to your personal safety. The big difference is that people judging you will not experience the stress of being under attack, the time pressure, and will have the benefit of hindsight – access to information you did not have at the time.

Sometimes it seems that no matter what choice a person makes, someone imagines they could have done better. That gap between the ideal and the real may seem inevitable, but how can we reduce it? Physical self-defense training is vital, but it’s also important to consider these issues deeply, so that when they come up we will be better prepared to make the right choices. What are the factors that help make up the totality of circumstances for lawful use of force in self-defense?

Situational awareness

The first foundation of personal safety is situational awareness. We strive for a high level of awareness of our situation at all times. But humans have a limited ability to pay attention. When we divide our attention across multiple objects, our awareness is degraded. Our situational awareness should be heightened depending upon time, place and immediate circumstances. For example, relaxing within the safety of our home, we may have no problem multitasking. But while driving our car, or walking – dividing our attention between those tasks and say, attending to our smart phone will degrade our awareness and safety.

Awareness is also degraded by alcohol and other intoxicants. When police stop a driver on suspicion of DWI, they will generally ask the driver to perform roadside field exercises. These are divided attention tests. A person impaired by alcohol has a reduced ability to divide her attention and perform two tasks at the same time. We can avoid the use of alcohol or impairment by alcohol if we wish to maintain our ability for situational awareness.

When it comes to criminal violence, we need to be aware of other humans. We need to be aware of proximity, threat potential, and potential responses to any threat presented (plan B). We can adjust to potential threats before the risk of criminal violence grows, for example if we are situationally aware and spidey-sense a potential threat, by crossing the street or moving away from the threat.

Sometimes situational awareness will not help us avoid trouble. If we are suddenly presented with a physical attack or the threat of one, situational awareness can help us respond in the best possible way under the circumstances.

woman-defeats-manDisparity of threat or force

Since the core of self-defense law is the use of reasonable force under the circumstances, the question of proportionality is key. If you are presented with a threat of criminal attack, or are attacked, you are expected to act reasonably or to use force reasonably proportionate to the threat or force used upon you.

Size and strength disparity

If you are a 100 pound, 65-year-old woman facing a 200 pound, 20-year-old man threatening rape or robbery, would that disparity in size and strength justify your greater use of force than if the situation were reversed? We know it would.

Single attacker vs. multiple attackers

It is far more difficult for one person to defend against a criminal attack by multiple attackers than a single assailant. As a result, it would be necessary for a person defending against multiple attackers to use more aggressive and more lethal force.

Against a single unarmed attacker, forcing the assailant to deliver the first blow not only may have tactical advantage but also a legal one. But against multiple attackers, it may be necessary for the self-defender to strike the first blow, perhaps against the apparent leader.

Sobriety vs. intoxication

Alcohol (and other drugs) is a wild card. It can cut in multiple directions. It deserves consideration, since alcohol is involved in most assaults. Assuming a two person conflict, either or both may have been drinking. Generally voluntary intoxication is not a defense to criminal liability, but it can have a big effect on both intent and physical ability. And even those can vary with the person’s level of intoxication.

In terms of the threat level of an intoxicated attacker, there can be the potential for that intoxication making the aggressor a greater threat than if sober. If so, the use of greater or more lethal force could be justified.

The use of force continuum

The force continuum is the range of levels force that can be used. Implicit within the term, use of force continuum, is proportionality. Depending upon the circumstances, calling 911 and the presence of a police officer; or a verbal warning and display of a weapon, might be on the lower end of the continuum (lower than another potentially reasonable option).

The law, the community, would like us to use the lowest level of force possible to avoid or resolve a physical or potentially physical conflict. Yet the law and the community recognize that this must be viewed from the perspective of the person being judged, given what they knew at the time, and the pressures of their situation at the time.

Verbal and nonverbal communication

To the extent possible, it’s a good idea to communication verbally and non-verbally with the criminal assailant. You may want to give clear verbal warnings.  Depending upon circumstances, you may be communicating de-escalation or escalation – whichever is then most likely to stop the threat or the criminal act. Escalation, where used, should avoid fighting words or provocation, but rather verbal commands to stop the attack, disarm, and the like. You may also be communicating so that your intentions are clear to any witnesses or electronic observation. Where possible, you can call 911 both to request police assistance as well as to create an audio record of what is happening.

Empty-hand defense

It’s good to have options, and it’s nice to have a weapon if attacked. Having a weapon does not mean it must be used. Empty-hand defense can also vary in level of force. For example, an unarmed attacker could be disabled with a snap kick to the knee to break their leg. But if we are capable of stopping the attacker effectively with a lower level of force or injury, we will. We will try to use the lowest level of force to effectively stop the threat from the assailant.

Empty-hand vs. armed with weapon

What if either you or the criminal attackers are armed with a weapon? Usually a person with a weapon will try to conceal its presence. We use our situational awareness to best detect whether they have a weapon, either within reach, on their person, or in their hand. Since a weapon in hand is the greatest threat, we do what we can to determine whether they have a weapon in their hand. A common clue is that one or both hands are concealed behind or otherwise out of sight. If it seems possible, a verbal command may be in order: “Drop the weapon! Now!”

If you have a weapon, depending upon circumstances, you may choose to keep it hidden. Most trainers advocate keeping a weapon out of sight until it is necessary to use it.  In certain circumstances, it could be reasonable to display a weapon in self-defense as part of an effort to warn the opponent and avoid injury.

Legally, afterwards, the issue may arise of whether the defendant (you) reasonably believed the assailant had a weapon, though none later could be found.  This can be a serious problem.  To reduce this risk, try to be sure the criminal does have a weapon; verbalize the presence of a weapon; and if possible be sure police later are able to locate it.

Lethality of weapon

When it comes to weapons, some have the potential for lesser or greater levels of force – for example pepper spray vs. a handgun. It’s nice to have choices, when it comes to lethality of weapons. Police officers generally have more equipment than other folks do. But whether we are at home, in the car, or out and about, most adults have choices available to them. The limiting factors on choice here may be, on the one hand knowledge and training, and on the other hand convenience.

Range and distance

Distance is important when it comes to reasonable fear of imminent bodily harm or death. Some open-hand fighting styles are said to be long-range or short-range. A kick can reach farther than a punch. Different weapons have different effective ranges. A baton has a shorter range than an arrow.

We know the law of self-defense has no bright line, just a totality of circumstances test –and means discretion. Discretion is rooted in the experience of the beholder. Rather than personal training, today the average person’s “experience” is indirect – from  stories they’ve read, seen or heard, most often in entertainment media such as songs, books, and especially movies or television. These mythological “experiences” are problematic since they tend to be wrong more often than not. For example, in the movies when someone is shot with a gun, they usually drop dead immediately.  But in real life, that rarely is exceptionally rare. A criminal attacker armed with a knife who is shot by a lawful defender twenty-one feet away can still survive long enough to kill the defender with the knife. See The Tueller Drill.

Once engaged, do not stop until the threat is stopped. Once the threat is stopped, disengage.

After you’ve been attacked, continue the necessary, reasonable use of force in self-defense until the threat is over. Once the attacker is disarmed, disabled and otherwise clearly is no longer a threat, the use of force is no longer necessary and stops.  It may be a challenge to determine when this point has been reached, depending upon the situation. It’s often a good idea to leave the area as soon as it can be safely done – again, depending upon the situation.  It’s a good idea to get help for the injured criminal if possible, possibly via 911.  If it is clearly safe to do so, render First Aid.

We do not seek retribution.

We do not take it upon ourselves to punish, or teach a lesson to the wrongdoer. Once the threat is disabled or stopped, we stop using force.

What do you think?

Are there other factors that can be weighed in the totality of circumstances when considering whether a person’s use of force was in self-defense?

Thomas Gallagher is a Minneapolis Criminal Lawyer whose practice includes asserting the defense of self-defense and defense of others on behalf of clients.

Comments are welcome below.