Tag Archives: Minnesota Criminal Law

How to Get Rid of a Domestic Abuse No Contact Order in Minnesota

In a criminal case with a “domestic relationship” element, it’s common for the court to issue a No Contact Order prohibiting the accused from having contact with the person claimed to be “the victim.”  The person they’re calling their victim is not consulted; is not asked.  In fact, the witness they’re casting in the victim role has no real voice in this – at least not in Minnesota in 2017.  He or she cannot “press charges;” can’t “drop the charges.  The current system takes the control away from him or her, and gives it to the prosecutor.  It’s been that way for decades.

If you are the accused, forget it.  The judge is not going to drop the no contact order for you.  No, this is written for the witness – one forced into the role of victim of the prosecution.

Ain't Nobody's Business If I Do

Ain’t Nobody’s Business If I Do

If you are the witness in a misdemeanor domestic assault case, for example, chances are you want the no contact order dropped.  But how?  The information here should help get you started, regaining control over your life – taking it back from the government.

Does this scenario sound familiar?  You and your other were enjoying some free time together, with adult beverages.  After a few drinks, some conflict and less restraint in expressing it.  Somehow, the police got called.  The 911 call – by whomever – was recorded.  Tempers flared.  Police officers showed up.  They picked someone to arrest, sometimes with help.  In what now seems like no time, it’s over.  They’re gone.  And so is your other, who is now in jail.  Work was missed.  Bail money.  A lawyer.  And – a No Contact Order.  The pretrial No Contact Order could be in place for months.  After that, it may be replaced with a probation No Contact Order for years.

In order to know how to try to get rid of it, it’ll help to understand what it is – to drill down into it.  Here we go.

In a criminal case, any kind of criminal case, the court can and often does set conditions of pretrial release.  Or it can release the accused on their personal recognizance (meaning no conditions, just show up for court appearances.)  One condition of pretrial release the court can require is bail.  Bail can be in the form of cash or a bond.  In Minnesota, we have the right to pretrial release on money only bail, or unconditional bail.

In other words, we have the right to be presumed innocent before a trial and release without any conditions other than bail.  For non-felony cases there is a maximum bail.  (For felony cases, there is no maximum.)  The maximum bail for a non-felony case is four times the maximum fine.  The maximum for a misdemeanor is $1,000 so the maximum bail is $4,000.

For a gross misdemeanor the maximum fine is $3,000 so maximum bail is $12,000.  Since we have the right to money-only bail, without any other conditions, in a non-felony case the maximum bail must be without other conditions.  And, perhaps not coincidentally, when judges set unconditional bail amounts in non-felony cases, it’s equal to the maximum:  $4,000 in a misdemeanor cases and $12,000 in a gross misdemeanor case.  This is good to know, since most domestic assault cases are non-felony.

It also means that the court cannot issue a no contact order as a condition of pretrial release in a non-felony case if the defendant posts maximum bail.  Some people were not happy with that.  So, several years ago Minnesota adopted a statute authorizing courts to issue a Domestic Abuse No Contact Order – a name so long it soon was more often referenced by an acronym, D.A.N.C.O.  It was modeled after the earlier Minnesota Domestic Abuse Act’s Order for Protection law, a civil case heard in family court but with criminal penalties for violations.

Bottom line, a defendant can now post maximum bail in a non-felony domestic assault (or similar) case, and get no other conditions of pretrial release, yet still be subject to a DANCO.  Minnesota Statutes §629.75, Subdivision 1 (b), says in part:

“A domestic abuse no contact order is independent of any condition of pretrial release or probation imposed on the defendant. A domestic abuse no contact order may be issued in addition to a similar restriction imposed as a condition of pretrial release or probation.”

Perhaps a court will properly strike down the law as unconstitutional one day, but that is beyond the scope of this article.  This is a description of what courts are doing now in Minnesota.

It’s important to understand that in a criminal case there could be two no contact orders: one as a condition of pretrial release, the other as a DANCO.  It may help to understand the distinction by looking at the remedy for a violation to each.  If a condition of pretrial release is violated, the remedy is for the court to issue an arrest warrant, book the defendant into jail, and revisit the issue of pretrial release in a new bail hearing.  If a DANCO is violated, that can be charged as a new, additional crime with a different date of alleged offense (compared to the original criminal charge).  There could be an arrest, jail, a bail hearing, on that new charge of violation of a DANCO.   (The one, same act could be both a violation of a condition of pretrial release; and a criminal violation of a DANCO.)

As a result, at least when it comes to the No Contact condition, it may not matter much whether the defendant posts maximum, unconditional bail or not.

Do courts ever rescind or get rid of No Contact Orders?  Yes, sometimes, but they make it difficult.  The reality is that the witness (“the victim” of the prosecution) has no real voice unless they work hard and persevere.  It helps if he or she knows how to go about it.  It also helps to have a witness lawyer helping make sure that he or she will be heard.

Domestic violence cases, perhaps like many things, vary along a continuum.  A few are horrific; but the vast majority are not.  Just ask any police officer what the most common 911 response call is – “a domestic.”  In how many of these cases is alcohol a factor?  Almost all.  The majority do not involve any physical harm or injury or minimal like a slap, bruise or scratch.  The harm caused by the criminal prosecution in response is typically massive and disproportionate.  But you already know that now, don’t you?

The number one question when you go to court will be: “are you afraid of him or her?”  What is written in the police reports will be reviewed, over and over.  People are not always the best historians when they are angry and drinking.  (But discussing the events of the night in question is often not a good idea.  Discuss with your lawyer before doing so.)

“Did you say, ‘when you go to court?”  Yes, you as the witness, were never asked and now the burden has been squarely placed on your shoulders to go to court to plead with the prosecutor, then the judge to drop the no contact order.  It’s your only chance.  (The prosecutor or their “advocate” may discourage you from coming to court to ask the No Contact Order be dropped.  If you don’t come, it won’t get dropped.)

Many prosecutors have people working for them claiming to be “victim advocates.”  Leaving aside the prejudicial “victim” labeling, are they really advocates?  A few good ones are.  But many see themselves as the advocate of the prosecution agenda, whose job it is to control and manipulate “their” victim to serve the ends of the state.  The few good ones actually listen. The best will even fight for the witness’s position and truly advocate for it.  Which type will you get?  Luck of the draw.  If you get a good one, this is good fortune.  The bad ones are best ignored to every extent.

Minnesota has a Victim’s Rights Act, Minnesota Chapter 611A.  One might think that prosecutors claiming to represent “victims” interests would use and cite this law often.  I’ve almost never heard it happen.  But I have cited it in most of my domestic assault defense cases, and every time I’ve represented a witness.  Why?  Because the law says that prosecutors and courts are required to listen to the “victim” and allow them a voice.  But many don’t seem to want to hear it.  Many prosecutors want to use the witness for their purposes and disregard the effect on their real lives, only to discard after use without thought or care.

It helps for the witness to have a lawyer experienced in domestic violence cases.  Your lawyer should know the courtroom, the players, and how to make sure your voice is heard.  We will not be ignored.  We will make your voice heard.

More can be written.  More could be said.  Hopefully this brief discussion has been useful for you.  It’s a stressful situation to call police for help, only to have them and their prosecuting lawyers turn into the enemy that threatens to ruin you and your family.  But there are countermeasures.  You can assert your power.  You don’t need to let them have it.  You can fight back, and regain control over your life.

If you have more questions, consider calling a Minnesota criminal defense lawyer experienced in domestic crime defense to discuss your options.

Thomas C. Gallagher is a Minnesota domestic violence defense lawyer with over 29 years experience with domestic assault and other domestic crime cases and Minnesota restraining orders.  He regularly represents the accused to successful outcomes; and sometimes is retained as a witness lawyer.

Thomas Gallagher Elected President of the Minnesota Society for Criminal Justice.

Thomas Gallagher was elected President of the Minnesota Society for Criminal Justice by a unanimous vote of its members on January 8, 2011.

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.

Prostitution and Minnesota Law

How can we best understand prostitution?  It involves two important aspects of human existence: sexuality and money.  Given the controversy each of these inspire, can it be any surprise that prostitution has been controversial as well?  Prostitution has likely been around longer than money has been – quite a long while.  Throughout the history of the world, and among its many peoples, there have been many different views on prostitution.

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 .

Minnesota Supreme Court Rules Against Innocent Spouse under DWI Car Forfeiture Statute

Today the Minnesota Supreme Court released a decision interpreting a Minnesota Statute in a way to deprive an innocent spouse of their legal right to keep their car, jointly owned by a spouse who drove it in violation of a law.   The Case, David Lee Laase  vs 2007 Chevrolet Tahoe, A07-2023, December 17, 2009, was another 4-3 split and splintered decision – with the majority reversing the Minnesota Court of Appeals, to rule against the civil property rights of the individual (Justices Lorie S. Gildea, Eric J. Magnuson, G. Barry Anderson and Christopher J. Dietzen in the majority, with Dissents from Justices Paul H. Anderson, Alan C. Page and Helen M. Meyer.) 

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 Trial of Jesus: A Criminal Law Perspective

Witnesses Against Jesus

The Trial of Jesus is the most famous trial in history – really, two trials. From a criminal law perspective, the trials are fascinating for many reasons, on many levels. This article is based upon a book The Trial of Jesus of Nazareth by Law Professor Max Radin published by the University of Chicago Press in 1931. Radin brings a lawyer’s eye to the historical record, from Christian, Roman, and Jewish sources, as well as succinctly developing the context. A few areas of interest to be discussed here include:

  • 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

The most credible Christian Gospel and likely the oldest written is “Mark.” His account contains the most attention to detail and reflects the best understanding of the laws and procedures of the both the Jewish local government and the superior Roman government. Although “Mark” shows the best understanding and most detail about the trials, his writings make clear his motive: to persuade the reader that Jesus was innocent of any crime a person could be convicted of in a Jewish court.

But is it so? Deuteronomy 18:20 appears to prescribe a death penalty for “the prophet which shall presume to speak a word in my name which I have not commanded him to speak…” This crime of false prophesy may have been the statute prosecuted at the first Trial of Jesus, before the Sanhedrin – a group of political leaders acting as a court in Judea.

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 there 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.

Minnesota Court Waters Down Legal Definition of Illegal Drugs: Toilet Water Now Criminal to Possess

Water Bong

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.

The majority opinion takes a literal view, arguing in essence that any amount of a substance dissolved in water makes that water a “mixture” containing that substance.  Perhaps.  But, since Minnesota’s criminal prohibition laws are organized to make greater quantities of drug possession a more serious crime than smaller quantities, such a simple-minded view defeats the purpose of the quantity-based severity levels. If a person possessed one-tenth of a gram of methamphetamine, they could be charged with a Controlled Substance Fifth Degree crime, with a five-year maximum.  But – dissolve the one-tenth of a gram in 26 grams of water, on purpose or by accident, and now under this new decision from the Minnesota Supreme Court, that can be prosecuted as Controlled Substance First Degree – with a 30-year prison term.  Just add water for five times the sentence!  In the case of marijuana, a non-criminal amount under 42.5 grams smoked through a bong could give the police and government lawyers the legal right to charge a felony drug crime with possible prison time – not for the marijuana, but for the bong water. This defeats the legislative purpose of treating larger quantities of drugs more harshly.  Worse – it makes no sense.  It is irrational.  It leads to an absurd result.

What is a bong?  It is a water pipe.  A water pipe, such as a bong, can be used to smoke tobacco, marijuana, methamphetamine (as in the Peck case), or anything that can be smoked.  Smokers view the water which has been used to filter and cool the smoke as something disgusting, not unlike a used cigarette filter, to be discarded – sooner or later.  The used water is not commonly used for any other purpose.  Apparently a naive or misguided police officer testified otherwise in the Peck case, and – amazingly -the four in the majority of the court appears to have given that testimony credit.

In general courts have made efforts to prevent police and government lawyers from having the ability to manipulate the facts or evidence in such a way as to either create criminal liability for targeted people, or, to increase the penalty the target might suffer.  Here is an instance to the contrary.  If the government wants to charge a more serious drug crime – what to do?  Just add water!  (Water is heavy – heavier than drugs.  Drug crimes are based on weight.  Water is not currently defined by law as an illegal drug.) Frequent news reports remind us about the drugs in the rivers and most of our municipal water supplies (not concentrated enough to hurt us, we are reassured).  Type “in water supply” into your favorite internet search engine and you can read thousands of reports of scientific studies documenting this.  As a result, if you have water sourced from a river, like we do in Minneapolis, then you could now be charged with a Minnesota Controlled Substance First Degree Crime (toilets tanks hold way more than 25 grams of water with illegal drugs dissolved).  This can be a particularly troubling variation of the trace-drug criminal case, where only a trace of suspected illegal drugs is found.  Trace cases can be problematic, in part because there may not be enough of the suspected material to be tested twice for its chemical identity. The widespread scientific reports of cocaine contamination (in trace amounts) on most United States currency, would be another example of “trace evidence of illegal drugs possession.”  Under the Peck case, we can have a situation of a trace amount of illegal substance “mixed” with water, which is heavy.  Or – we could have a relatively small amount (by weight) of illegal contraband mixed with a large amount of (heavy) water.  Even if you believe some drugs possession should be a crime – should one gram mixed in water be treated the same as one kilogram (1,000 grams) in powder form?

What can be done about this particular absurd injustice?

  1. Ask the legislature to repeal the criminal prohibition laws.
  2. Remember this case at election time.  Vote!  You can vote for or against Minnesota Supreme Court candidates, including incumbents.
  3.  Jury Nullification, or the rule of jury lenity.  Jurors have legal rights to acquit, despite the facts, despite the judges instructions on the law.  Just do it!
  4. Remove all water sourced from rivers from your home and office, including toilets, in the meantime.

At least the dissenting opinion, by Justice Paul H. Anderson, joined by Justice Alan C. Page, and Justice Helen M. Meyer, exhibits common sense.  Here is what Justice Paul Anderson wrote in dissent of the majority opinion:

The majority’s decision to permit bong water to be used to support a first-degree felony controlled-substance charge runs counter to the legislative structure of our drug laws, does not make common sense, and borders on the absurd…the result is a decision that has the potential to undermine public confidence in our criminal justice system.

It’s a good read (link at the beginning of this article).  It is shocking that four in the majority could have possibly disagreed with the dissenters.  Hopefully, this is the beginning of the end of the 100 year experiment in using criminal blame as a strategy to solve a public health problem.

It’s time to change the laws.  This absurdity makes it all too clear. Written by Thomas C Gallagher, Minneapolis Drug LawyerFFI:  Marijuana Laws in Minnesota

Underage Consumption > Do I Have to Submit a Breath Sample to Police Upon Request in Minnesota?

martiniMost people are aware that if a person is driving a motor vehicle in Minnesota, a police officer can in certain circumstances invoke legal authority under a Minnesota Statute to demand the person submit to a search by providing a breath sample for a Portable (or Preliminary) Breath Test (“PBT”) machine.  If the driver refuses, the statute then authorizes arrest for suspicion of DWI.

What about the person under 21 years of age, who is not driving or anywhere near a motor vehicle?  There is no statute or law that requires that young person to consent to a search by providing a breath sample simply because they are walking down the street, or found at a house party, with an odor of an alcoholic beverage about them.  A young person in this position can simply refuse to consent to such a search.  Refusal to submit to a PBT does not give police legal authority to arrest a pedestrian (unlike a driver, in certain circumstances).  Note that although the Minnesota Statute in the DWI Chapter concerning Preliminary Screening Tests (link above) does authorize use of these in underage consumption cases in court, it does not authorize police to “require” a breath sample for a PBT where the person has no connection to a motor vehicle.

An interesting, recent case in Michigan illustrates some of the key points in this type of case, Troy v Chowdhury, Michigan Court of Appeals, September 10, 2009.  There, the City of Troy had enacted an ordinance to allow police to force consent to breath testing of minors, and this was ruled unconstitutional.  The court in that case notes that police did not claim to have obtained consent from the accused, nor did they have a search warrant.  The court also confirms the obvious – when police take a breath sample that is a search.

Under the Fourth Amendment of the United States Constitution, in order for police to search a person they must have a search warrant, or a recognized exception to the warrant requirement must a then apply.  Consent can be an exception.  If “consent” is coerced, then it is not real consent.

I know of no statute or local ordinance in Minnesota that gives police legal authority to “require” a breath sample for alcohol testing (unless in connection with weapons or motor vehicles).  Police often will seek actual consent, or sometimes try to coerce “consent.”  The person (with no weapon, or not in relation to a motor vehicle) faced with such a request from a police officer does not have to consent to such a search or provide a breath sample simply because police want it.

The police and local prosecutors can still charge underage consumption crimes without PBT evidence, based upon other available evidence.  (The most damning are verbal admissionsby the accused.)  Regardless, a person accused of this crime could be expected to have a stronger defense case if they refuse to blow into the PBT and refuse to talk about drinking. 

Other problems commonly occurring with these kinds of cases include criminal charges of giving false information or identity to police, and less often, fleeing.  I know of no law in Minnesota that requires a person to identify themselves to police (except in certain circumstances such as driving, hunting, carrying, etc.)  If a person is not driving, they need not carry a drivers license or other ID.  A person should be careful to avoid giving a false identity to police, which is a worse crime than underage drinking, in the eyes of most.  If a police officer asserts their authority as a police officer, fleeing is a crime in Minnesota, whether in a vehicle or otherwise.

In general, a person suspected of a crime cannot be compelled to talk or provide information, or consent to a search (and this is normally the best approach); however, any information that is provided should be truthful.  When in doubt, seek legal advice from a lawyer before making a statement or consenting to a search.

Author: Thomas Gallagher Minneapolis Criminal Lawyer