The case, State v. Johnson, rests on an odd set of facts the court recounted them this way:

Four men robbed B.A. in downtown Minneapolis on February 8, 2010, near bar-closing time. B.A. testified that after leaving a bar, he walked down Second Avenue and turned on Fourth Street, towards First Avenue. As he walked past Pizza Luce, seven men approached him. Johnson and three others surrounded B.A.; punched him twice in the face; and stole his cell phone, wallet, and money. The robbery took less than one minute and left B.A. with cuts above his eye and inside his mouth.

After the robbery, B.A. walked in the opposite direction of his assailants and found an off-duty police officer, Officer Daniel Lysholm, inside a restaurant. B.A. banged on the window of the restaurant and said, “I got jumped by those guys.” Lysholm exited the restaurant, and B.A. pointed toward the men who robbed him. Less than 20 seconds elapsed between the robbery and the time that B.A. pointed out the men toLysholm. The men were not near any other persons when Lysholm saw them. Lysholm radioed for assistance and provided a description of the men’s jackets. Two police officers in a nearby squad car heard the radio dispatch, saw the men, immediately approached them, and arrested them. B.A. and Lysholm never lost sight of the men from the time B.A. approached Lysholm until the time of the men’s arrest.
Officers identified the men as appellant Kenneth Johnson, codefendant Corey Maull, Giorgio Tyler, and Darail Murphy. During the arrest, an officer noticed a pile of identification cards and credit cards lying on the ground between Johnson and Murphy. B.A. approached and identified the cards as his. Then without prompting by the officers,B.A. said to Johnson and Murphy, who were standing near the rear of a squad car, “Why did you beat me? Why did you take my things?” Neither Johnson nor Murphy responded.

The appeal covered a number of issues, including a speedy trial violation.  But the non-response was admitted at trial for the jury to consider.  The court reasoned that the non-response was reasonable for the jury to consider, that although you have a right to silence, a non-response to a question not asked by a government official, was not a violation of the Fifth Amendment which says that no person “shall be compelled to be a witness against himself.”  The court borrowed language from the Borg case:

The protection against compelled self-incrimination guarantees the right of a defendant to remain silent during his criminal trial by prohibiting the State from forcing a defendant to testify against himself. The Fifth Amendment also prohibits the State from commenting on the silence of a defendant who asserts his right not to testify at his trial. . . . [A]llowing the State to comment on a defendant’s decision not to testify unfairly penalizes the defendant for exercising a constitutional privilege. Once a defendant elects to testify in his defense, however, he casts aside his cloak of silence and may be impeached by evidence that he remained silent before arrest without the impeachment running afoul of the Fifth Amendment.

The court went on to conclude: “the state did not compel Johnson “to speak at the time of his silence.” Id. Johnson remained silent in response to B.A.’s questions, questions not posed by the government. Although Johnson had been arrested, he was under no government-imposed compulsion to speak at the time of his silence. We therefore conclude that Johnson’s silence did not implicate the Fifth Amendment.”

In other words, you have a right to remain silent in the face of police questioning, if you have been arrested and advised of your right to remain silent.  Otherwise, exercising the right to silence may be used as evidence of your guilt.  If you are charged, or accused of a crime, get a lawyer, right away.

Fossum Law Office, LLC has offices in Northfield and Bloomington, Minnesota.  John L. Fossum has extensive experience in state and federal courts in Minnesota and can assist people with legal problems in Minneapolis, St. Paul, Bloomington, Burnsville, Shakopee, Hastings, Faribault, Owatonna, Waseca, Chaska, Rochester, Cannon Falls, Red Wing or anywhere else in the Twin Cities or South Eastern Minnesota. If you are seeking assistance with a criminal case, appeal, civil litigation or other legal problem, contact Fossum Law Office, LLC for assistance.  John L. Fossum has experience handling the most serious criminal cases, including drug crimes, sex crimes, murder, attempted murder, and other violent and non-violent crimes.  If you have been charged with or accused of a crime, you need a lawyer now.

From:  A Man for All Seasons, by Robert Bolt.

In State v. Borg, the court today found a strange exception to the idea that invoking your right to silence and counsel could not be used against you.  The court allowed testimony from the investigating officer, who testified that he called Mr. Borg by phone, and was told that he had a lawyer and would not be submitting to a police interrogation.  Later the officer apparently sent Mr. Borg a letter saying:

I would like to speak with you regarding an investigation that I am conducting. When I spoke with you briefly in May, 2004, you indicated that you had hired an attorney to represent you.
Please have your attorney contact me as soon as possible to arrange an interview appointment. Thank you very much.

Mr. Borg did not respond, there was no evidence when the letter was mailed, and the trial court allowed the testimony of the officer saying that he did not set up a meeting.  The Minnesota Court of Appeals last year reversed the conviction, finding the testimony and the government’s argument that remaining silent meant guilt to be not harmless error and worthy of reversal.

Defendants who plead guilty in Minnesota are required to acknowledge the following statement:

1. That I could testify at trial if I wanted to but I could not be forced to testify.
2. That if I decided not to testify neither the prosecutor nor the judge could comment on my failure to testify.

The majority has moved into a strange new area for criminal defendants.  You cannot be compelled to testify against yourself.  You cannot be compelled to talk to the police, but if you do not, the government may now argue that your failure to submit to an interrogation, though you are no obligation to do so, means that you must be guilty. In this case, the government argued in closing:

When law enforcement contacted him by phone and by mail, [Borg] didn’t say “Hey, I don’t understand what’s goin’ on here with . . . these questions.  This was a consensual situation.”  He never said that.  He never—when he found out later that day what the report was from [M.W.], he never called the police to say, “Hey, woah, I wanna make sure everybody’s clear on this, this is a consensual situation.”  . . .  He did none of those things.  And you get to ask yourself based on your common sense and experience whether those are the actions of somebody who believes that they have done nothing wrong.

So, though you cannot be forced to testify, and no one can comment on your failure to testify,  and you cannot be forced to submit to an interrogation, the government may now argue that your failure to submit to an interrogation is evidence of guilt.   The Court of Appeals distinguished this as pre-counseled, pre-arrest, and pre-Miranda silence.   It is hard to see the point of the distinction.  If you have a Constitutional right to remain silent, and are wise enough to exercise it before you are explicitly told that you have a right to silence by your lawyer, or the officer, why is that evidence of guilt, and not evidence that you, as a citizen, understand your Constitutional rights? Apparently, you now, in Minnesota, have  a right to remain silent, but if you exercise your right to remain silent before someone explicitly tells you about it, then your silence may be used as evidence of your guilt.

As the Court of Appeals found in it’s opinion:

We see no reason why Dunkel should be distinguished on the basis that appellant’s silence was pre-counseled.   Such a distinction would vitiate a criminal defendant’s constitutional guarantee of the right to remain silent.   We therefore conclude that the district court erred in permitting the officer to testify about appellant’s pre-counseled, pre-arrest, and pre-Miranda silence in the state’s case-in-chief.

The dissent at the Supreme Court, authored by Justice Meyer pointed out:

Comment on a defendant’s silence after he has been read the Miranda warnings violates due process because it would be fundamentally unfair to tell a suspect that he has the right to remain silent then penalize him for exercising that right….

The question presented in this case is one that neither our court nor the Supreme Court has addressed: whether the Fifth Amendment permits the State to introduce evidence in its case-in-chief of a defendant’s pre-arrest, pre-Miranda silence in response to government questioning.  Until now, the universal answer to that question has been “no.”  Every other state high court and federal appellate court faced with this issue has held that the Fifth Amendment prohibits such use.  The United States Courts of Appeals for the First, Sixth, Seventh, and Tenth Circuit and high courts in Idaho, Maryland, Massachusetts, New Hampshire, Nebraska, Ohio, Washington, Wisconsin, and Wyoming have all held that the introduction in the prosecution’s case-in-chief of a defendant’s pre-arrest silence in response to government questioning violates the Fifth Amendment. I would join these jurisdictions and adopt the rule of law that the Fifth Amendment’s protection against self-incrimination prohibits the State from introducing in its case-in-chief evidence of a defendant’s silence in response to government questioning.

 

O brave new world, That has such people in’t!    The Tempest, W. Shakespeare Act V, Scene 1.

John L. Fossum, is an attorney with the Fossum Law Office, LLC, and has offices in Northfield, MN and Bloomington, MN.  Fossum Law Office, LLC handles criminal defense, appeals, personal injury, civil litigation and business law.  If you have a legal problem in Minneapolis, St. Paul, Bloomington, Burnsville, Hastings, Shakopee, Faribault, Chaska, Waseca, Owatonna, or elsewhere in the Twin Cities or Southeastern Minnesota, contact Fossum Law Office, LLC for assistance.

Walter Randolph was appointed a public defender for a misdemeanor case and convicted at trial.  He requested a public defender on appeal and the Rice County District Court appointed counsel to be paid by Rice County.  Rice County objected, claiming that the public defender statute made this an obligation of the Board of Public Defense.  The Board of Public Defense intervened in the case and argued that since the statute did not require the State Public Defender to represent indigent defendants in misdemeanor appeals, the appellate division could not be appointed to represent Randolph.  The court, after oral arguments, issued an order requiring the parties to submit new briefs on the question of who should pay for an indigent’s Constitutional right to counsel in misdemeanor appeals. The court invited other entities to weigh in on the question, including the Minnesota State Bar Association.

The statute which created the state public defender system, took the then existing system of judicial district public defenders and gave them the obligation of defending misdemeanors, gross misdemeanors, felonies, juveniles and child protection cases.  The State Public Defender was put in charge of the system, adding to the former responsibility of running the appellate office.  Appeals in gross misdemeanor, felony and juvenile cases were made the responsibility of the public defender system, child protection appeals were paid for by the county the appeal originated from, and no provision was made for appeals in misdemeanor cases when the appellant cannot afford private counsel.

This case was made necessary by Morris v. State, which found that indigent misdemeanants have a Constitutional right to counsel, but did not resolve whose obligation it was to vindicate that right.  Prior to the state takeover of the public defender system, there were district public defenders paid by the counties, prior to that all public defense was administered by each of the 87 counties.  As the move toward district then state public defense was made, many of those obligations were removed from the counties, but some remained, such as child protection appeals, paternity, non-support contempt and civil commitments to name a few.

Part of the public defender statute said that functions which were not taken over by the state remained the obligation of the county.  The county argued another phrase in the statute meant that all public defenders were to be paid by the Board of Public Defense.

The court took a third route, finding the payment of counsel for Mr. Randolph was an obligation of the state, but since the state had no system in place to pay for such counsel his conviction should be vacated.  The court encouraged the legislature to find a way to fund such appeals.  Failing that, the court encouraged lawyers to take misdemeanor appeals pro bono. Going forward, it seems that any indigent misdemeanant who wants appointed counsel on appeal will likely have their conviction vacated unless a lawyer agrees to handle the case for free, or the legislature creates a new fund to pay for counsel in such cases.

John L. Fossum, is an attorney with the Fossum Law Office, LLC, and has offices in Northfield, MN and Bloomington, MN.  Fossum Law Office, LLC handles criminal defense, appeals, personal injury, civil litigation and business law.  If you have a legal problem in Minneapolis, St. Paul, Bloomington, Burnsville, Hastings, Shakopee, Faribault, Chaska, Waseca, Owatonna, or elsewhere in the Twin Cities or Southeastern Minnesota, contact Fossum Law Office, LLC for assistance.

Moroccan Training

John L. Fossum recently returned from a visit to Marrakesh, Morocco at the invitation of the Moroccan Institute of Legal Initiatives and the Rabat Bar Association. The training was conducted July 1 and 2, 2011 at the Kenzi Menara Palace Hotel in Marrakech, Morocco.

Fossum lead a two day training, with Marie O’Leary on basics of law office management, time management and case management for lawyers.  Morocco allowed lawyers to form law firms in 2008, and many are beginning to look at ways to expand their practice’s reach. The training was intended to assist them in finding ways to grow their practice.

The training was attended by 50 members of the Rabat Bar Association who traveled to Marrakesh for the weekend training.  John L. Fossum is a frequent speaker at trainings for lawyers and has offered trainings in Africa and Asia as well as the U.S.  Mr. Fossum also serves as practitioner faculty for the University of Phoenix and teaches business law, criminal law and ethics at the undergraduate, graduate and doctoral levels.

Fossum Law Office, LLC has offices in Northfield and Bloomington, Minnesota.  John L. Fossum has extensive experience in state and federal courts in Minnesota and can assist people with legal problems in Minneapolis, St. Paul, Bloomington, Burnsville, Shakopee, Hastings, Faribault, Owatonna, Waseca, or anywhere else in the Twin Cities or South Eastern Minnesota. If you are seeking assistance with a criminal case, appeal, civil litigation or other legal problem, contact Fossum Law Office, LLC for assistance.

Today’s argument was held at the Warren E. Burger Federal Courthouse in St. Paul.  Mr. Fossum has previously also argued several cases at the Minnesota Court of Appeals in St. Paul and has appeared as the author or co-author on briefs in cases argued at the Minnesota Supreme Court in St. Paul.

Mr. Fossum has appeared regularly in state courts in Minneapolis, St. Paul, Hastings, Owatonna, Faribault, Shakopee and throughout the state of Minnesota.  He also regularly represents clients in federal court in Minneapolis, St. Paul and Duluth.  With offices in Northfield and Bloomington, John L. Fossum and Fossum Law Office, LLC  able to assist with most difficult legal problems in Minneapolis, St. Paul, Bloomington, Burnsville, Chaska, Hastings, Shakopee, Faribault, Waseca, Owatonna, or elswhere in the Twin Cities, Southeastern Minnesota or the state of Minnesota. If you have a criminal charge, civil litigation, appeal, or other difficult legal problem, contact Fossum Law Office, LLC for assistance.

The jury instruction misstated the test for a finding of probable cause.  The Minnesota Court of Appeals had reached the same conclusion about the instruction, but did not overturn the conviction on the theory that the instruction, though wrong, was harmless error.

Part of what is interesting about this opinion, is that it is written by the court’s newest, and youngest, member, Justice David Stras, appointed by Governor Pawlenty near the end of his term, is the author of the majority opinion.  Justice Stras finds himself arguing with two of the other conservative appointees of Governor Pawlenty, Justice Christopher Dietzen and Chief Justice Lorie Gildea. Prior to his appointment, Justice Stras had been a professor at the University of Minnesota, and before that a law clerk for U.S. Supreme Court Justice Clarence Thomas.  Justice Stras graduated from law school in 1999.

Justice Stras concludes that the harmless error analysis argued by the dissent “overlooks the fact that the jury never had an opportunity to evaluate probable cause under the correct legal standard.”

The issue with the instruction was that probable cause can be a subjective question, but the law requires an objective test.  The instruction essentially asked the jury to determine if the officer found probable cause, but instead it should have been asked to determine whether or not a reasonable person would find probable cause.

According to Justice Stras:

[T]he instruction is erroneous because the law requires the fact-finder to evaluate probable cause based on the totality of the facts and circumstances; it is not sufficient that the officer can simply explain the reason‖ why he or she believed there was probable cause to request a chemical test from a suspect.

The second flaw is that CRIMJIG 29.28 does not require the jury to determine whether a reasonable police officer would find probable cause that Koppi was driving while impaired. The instruction permitted the jury to take Officer Hunter at his word that he believed Koppi was driving while impaired.

The court used a standard jury instruction from the Minnesota Jury Instruction Guides drafted by a committee of judges.  That the court found this instruction to be contrary to law means that anyone who was convicted using that instruction could ask for a new trial, if their appeal period is not over.

A person accused of refusing a test (DWI/DUI refusing) after driving under the influence may have a better chance of defending the case than in the past under the old jury instruction.  A person accused of DWI/DUI in Minnesota should always consult with an experienced DWI/DUI lawyer to evaluate their case.

Prosecutors have an ethical obligation to seek justice.  If they get a bonus for trying cases and getting convictions, do they have an incentive to overlook mitigating circumstances?  Do they have an incentive to hide or overlook evidence that would lead to the conclusion that the person charged is not the person who did the crime?  With the great number of convictions that have been shown to have been improper does it make sense to have prosecutors have an incentive to seek convictions?

Defense attorneys cannot base their fee on the outcome of their case, it is well-settled in ethical rules that a criminal defense attorney cannot charge a contingent fee, and get paid more for an acquittal than they otherwise would charge for the case does it make sense for public employees to have a financial incentive to convict citizens of crimes?

In an interesting twist to this case, it appears that the district attorney in the area may not have had approval from the funding sources, some counties in her judicial district, to pay the bonuses.  That story also notes that it is the only district in Colorado paying such bonuses.

The ABA Journal blog reports that “the Minnesota Court of Appeals, in recent months, reversed felony convictions for violent crimes in three separate cases because the court was incapable of providing speedy hearings.”  The story argues that the funding problem is not limited to the courts, that public defense is also underfunded and the unavailability of public defenders is causing delays.

Given the facts offered by the court and the reporters, it may be too late to hold the court harmless, it may be time to undo some of the harm before more cases are dismissed for Constitutional violations, or civil cases cannot be timely heard.

The legislature had asked the court to offer up a scenario of what the courts would look like with a 20% cut.  It is hard to imagine the courts could keep processing cases with fewer resources.  Justice is inherently inefficient.  If everyone is to get an opportunity to be heard, that takes time, and it takes people.  If the courts are to fulfill their essential function, then they must be properly funded to provide people with a forum for real dispute resolution and a real opportunity to be heard.

we caution the Legislature and the Governor, our coordinate branches
of government that are responsible together for creation of the State’s biennial budgets,
that we will not continue, beyond this second temporary fee increase, to rely on lawyer
registration fees to fund the constitutional obligation of the State to provide defense
counsel for indigent criminal defendants. We call on the Legislature and the Governor to
fulfill their constitutional responsibilities to provide adequate funding for the public
defense system, with the knowledge that the additional temporary funding provided by
this fee increase will not be extended beyond the July 2013 fees provided for in this
order.

Justice Dietzen issued a concurrence arguing that the Board of Public Defense had not sufficiently improved efficiency in handling its cases.  What Justice Dietzen sees as inefficiency, may in fact be effective representation.  To achieve absolute efficiency, the public defenders would have to plead all their clients guilty at their first appearance. It would be efficient but it would not be effective representation.  This perhaps highlights the issue of having a court made up exclusively of civil litigators and technocrats.  Only Justice Paul Anderson lists any criminal experience in his background, serving as a prosecutor in the Attorney General’s Office in 1970-71.

Justice Page penned a dissent where he focused on calling the tax on lawyers a tax.  He did not respond directly to Justice Dietzen’s quest for efficiency in criminal defense but he did say:

Every criminal defendant is entitled to a fair trial. See
United States v. Wade, 388 U.S. 218, 226-27 (1967). Fundamental to a fair trial is the
defendant’s right to the effective assistance of counsel. See id.; see also Gideon, 372
U.S. at 342-43. By underfunding our public defense system, we not only call into
question the fairness of criminal trials in this state, we tear at the fabric of civilized
society. As the United States Supreme Court noted in Powell, “a defendant, charged with
a serious crime, must not be stripped of his right to have sufficient time to advise with
counsel and prepare his defense.” 287 U.S. at 59. To deny that right “is not to proceed
promptly in the calm spirit of regulated justice but to go forward with the haste of the
mob.” Id.

The court needs one or more experienced criminal practitioners to deal with these issues.  Perhaps the new governor or the voters will address this problem in the near future.

At the same time, the federal defender system, which relies on experienced private practitioners serving as appointed counsel under the Criminal Justice Act, (CJA) is a victim of the federal budget fight.  In a memo sent out February 23, the Administrative Office pointed out that they have lost a number of clerks but no longer had the funds to pay any CJA vouchers for attorneys, interpreters, or expert witnesses.  On March 4, the Administrative Office issued another memo saying that the recent continuing resolution allowed for payments of vouchers that had been processed but not yet paid on March 7, then a new suspension would take effect until a federal budget is approved or another allocation is made.

These budget problems threaten the ability of the courts to function and process criminal cases. At both the federal and state levels.  If CJA funding is not resolved, cases may languish or have to be dismissed for a lack of counsel willing to take on cases and not have a promise of payment within a reasonable time of submitting their bills. If the funding problems in the state courts are not resolved, cases will also have to be dismissed for a lack of effective counsel and meeting of speedy trial rights.

These problems are not just about money.  They are about justice itself and how seriously we take our Constitution and its guarantees of a speedy and public trial and a right to effective counsel.  The lawyers have a right to not have their time conscripted and their labor taken without just compensation, and the burden of public defense should be borne by society as a whole through general taxation.  A tax only on lawyers is a denial of equal protection, conscripting private counsel to serve for free violates their right of equal protection by requiring them to undertake obligations that belong to society as a whole.

It is time for everyone to realize that courts are necessary for the proper function of society and they need adequate funding to provide a forum for dispute resolution.  If we keep gutting the courts and public defense, we might as well be Afghanistan.