David Liebow Featured in Story About Officer-Involved Shootings

A still frame from the Philando Castile/Jeronimo Yanez video.
A still frame from the Philando Castile/Jeronimo Yanez video.

David Liebow was featured on a KAAL story that aired last night about the difficulty prosecutors face in obtaining convictions in prosecutions for officer-involved shootings. Take a look here.

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An Obvious Pattern at the Minnesota Court of Appeals

The Minnesota Judicial Center, home of the Minnesota Court of Appeals
The Minnesota Judicial Center, home of the Minnesota Court of Appeals

Decisions by the Minnesota Court of Appeals are released every Monday at 10:00 AM on the nose. Yesterday (because Monday was Memorial Day), three-judge panels of the Court of Appeals issued decisions in 25 cases: three published decisions, 18 unpublished opinions, and four order opinions. The cases being appealed came from all over the state. Some cases decided involve weighty issues of the separation of powers of government that are almost certain to be ultimately decided by the Minnesota Supreme Court, and some have relatively little practical effect and will go on no further. Some cases were criminal, some were civil. There were dissents from the majority in two cases and no concurrences. Seven decisions were written by retired Court of Appeals judges serving by a special appointment, while the rest were decided by active judges of the Court of Appeals. But other than all being decided yesterday by the Court of Appeals, these cases had another thing in common.

Every decision yesterday affirmed the lower court or agency’s decision. All 25. Because there were only the two dissents, there were 73 votes to affirm and two votes to reverse – meaning only 2.67% of votes were against the decision of the lower court or agency.

It’s notoriously difficult for appellants/relators to win at the Minnesota Court of Appeals. (Just as a very apples-to-oranges comparison, at this point in the United States Supreme Court’s term, it has reversed in 81% of the cases it has decided.) While a 0% reversal rate over this many decisions is unusual, it isn’t shocking. Those looking to overturn a lower court or agency decision, consider yourselves warned – the odds are usually going to be against you.

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Tomorrow: Presentation on the Ethics of the 21st Century Law Office

Picture of ClassroomI’m a great believer in using technology in the practice of law. Law firms are (or at least sure should be) far more efficient and effective than they were just a few years ago, and it’s largely due to technological tools that allow more work to be done better for less cost. Using technology ethically and effectively, thereby delivering better and less expensive service to our clients, is one of the things that we believe sets apart our firm from many others.

To that end, I’m excited to be a speaker tomorrow at the Olmsted County Law Library’s free spring CLE (continuing legal education) event. I’ll be presenting a course entitled the Ethics of the 21st Century Law Office. The session will include a discussion about both how lawyers can use technology while still meeting their ethical obligations and how they sometimes must use technology to follow the legal and ethical rules, with a particular focus on data security (which I’ve written about before). The whole day should be a lot of fun – feel free to stop on by.

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Lopez Expands Burglary to the Breaking Point

Motel DoorMonday mornings mean Minnesota Court of Appeals decisions. Yesterday morning the Court of Appeals released three published decisions, including two in criminal cases. Both are interesting, but the more meaningful of the two is State of Minnesota v. Lionel Lopez, A16-0947. The facts are not complex: Mr. Lopez was staying in a motel in Willmar when he walked into Z.D.’s unlocked room, took Z.D.’s cell phone and wallet while Z.D. was in the shower, and went back to his own room. Mr. Lopez was charged with, and convicted of, gross misdemeanor theft and first-degree burglary (a felony). He appealed his burglary conviction, arguing that entering a motel room is not entering a “building.”

In Minnesota, burglary is often just a more serious flavor of theft. A third-degree burglary, for example, may involve walking into an open shed, stealing a tool, and leaving, yet be a serious felony (maximum sentence: five years in prison, $10,000 fine) while it would have been only a misdemeanor theft (maximum sentence: ninety days in jail, $1,000 fine) had the tool been on the ground outside the shed. As you get to more serious degrees of burglary, the difference between committing the crime in open air rather than under a roof becomes even more stark. Stealing that same tool out of the open garage of an empty house is second-degree burglary, which carries a maximum ten years in prison and $20,000 fine. And stealing that tool from the open garage of an occupied house is a first-degree burglary, with a mandatory minimum sentence of six months in jail and a maximum sentence of twenty years in prison and a $35,000 fine.

A conviction for first-degree burglary requires (as relevant here) that a person enters a building without consent, the person commits a crime in the building, the building is a “dwelling,” and the building is occupied by another person (other than an accomplice) at any time during the offense. The behavior that seems intended to capture is a home invasion. But the terms “building,” “dwelling,” and “enters a building without consent” are astonishingly broadly defined. For example, one Minnesota case holds that a person can be convicted of burglary for entering into a home he ownsLopez, which holds that a motel room is a “building” under the burglary statute, takes it yet another step further and pushes the breadth of the crime to the breaking point.

The Lopez court purports to apply the plain meaning of the definition of “building,” which, under the statute, is “a structure suitable for affording shelter for human beings including any appurtenant or connected structure.” The court acknowledges that a motel room is “a subunit of a larger building.” It also rejected the government’s contention that previous burglary cases had already answered this question. But it held that, because “[a] motel room is intentionally constructed from the component parts of walls, a ceiling, and a door, for the express purpose of affording shelter for guests,” and “precisely because a motel room is so constructed that a person rents such a room,” it is a building. Judge Stauber dissented, stating that he would have concluded, based on the commonly-understood meaning of “building,” a prior version of the burglary statute, and other statutes that define “building,” that a motel room was not intended to be considered a separate “building.”

Judge Stauber’s position is the better one here. His proposed holding would rely on an almost inarguably common-sense understanding of the word “building,” No one would ever say that they entered a “building” when moving from a motel hallway into a motel room, and it’s telling that the majority’s holding relies on boiling down dictionary definitions and side-stepping the prior statute before finding that the statute “unambiguously” includes motel rooms. (It seems clear that, had the majority been forced to find that the definition was ambiguous, it would have had a very hard time reaching the same result.)

Though its logic doesn’t hold together, the majority makes one good point: under the dissent’s proposed rule, “unconsented-to entry into an apartment unit by an occupant of another unit in the same complex would not be a burglary; an identical entry into the unit by a person who does not dwell in another unit within the same complex would be a burglary. That makes no sense.” That may be true. But it doesn’t make much sense that the Legislature would have intended to include a motel room within the word “building,” either, and as the court itself notes, “all reasonable doubt concerning legislative intent should be resolved in favor of the defendant.”

During a time in which there is rightful concern about the power wielded by prosecutors, the day has come for the crime of burglary to be narrowed.

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Aaron Hernandez Is Not Guilty – of Anything

Aaron Hernandez
Aaron Hernandez in better days.

Aaron Hernandez, the former New England Patriots tight end turned convicted murderer, was found dead this morning in his prison cell in Massachusetts. Just a few days ago, he had been acquitted on a second set of murder charges.


Under Massachusetts law, Aaron Hernandez is now not guilty – even of the charge on which he was convicted. In Minnesota, he would (probably) be entitled to the same outcome.


Massachusetts law provides for a doctrine called abatement ab initio. What it means is that a defendant whose case isn’t final – whether because they haven’t been convicted or because their case is being appealed – is legally considered as guiltless as if he had never been charged. Abatement has been applied in a handful of high-profile Massachusetts cases, such as that of John Salvi, who committed suicide after being convicted of murdering two women at an abortion clinic in Brookline, Massachusetts in 1994, and John Geoghan, a former Catholic priest who was murdered in prison in 2003 after being convicted of sexually abusing children. Both had their convictions wiped away. Hernandez’s murder conviction was on an automatic appeal to the Massachusetts Supreme Judicial Court, so his conviction should be abated as well.

Minnesota’s adoption of the rule is quite recent, having taken place only in 2013. In State v. Burrell, the Minnesota Supreme Court abated the conviction for forgery of one Mark Myrl Burrell, who had been living as his brother Steven (and Steven living as Mark) for over a decade. After Steven died, the switch came to the attention of the authorities, and Mark was charged with forgery. He was convicted but appealed. Just after the case was argued to the Minnesota Court of Appeals, Mark’s attorney was notified that Mark had died. Mark’s attorney then filed a motion to abate the prosecution ab initio. The Court of Appeals denied the motion and even dismissed the appeal. The Supreme Court reversed the Court of Appeals, holding that abatement ab initio is the law in Minnesota, though it left for another day the question of what happens when restitution is owed, which it was not in Burrell.

Most states, and all of the federal circuit courts of appeals, apply the doctrine. As a result, there are a few very famous examples of the application of abatement. Probably the most notable is that of Ken Lay, the former CEO and chairman of Enron, who died after being found guilty but before being sentenced on security fraud charges.

Criminal law often involves results which are distasteful and may seem unjust. As the Minnesota Supreme Court explained in Burrell, however, “‘the interests of justice ordinarily require that [a defendant] not stand convicted without resolution of the merits of an appeal’ because resolution of an appeal is an integral part of our criminal justice system for finally adjudicating guilt or innocence.” Burrell, 837 N.W.2d 459, 467 (Minn. 2013) (quoting United States v. Wright, 160 F.3d 905, 908). Abatement exists to protect the rights of criminal defendants whose deaths prevent them from defending their cases as far as the law allows.

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