To the Supreme Court We Go!

The Minnesota Judicial Center, home of the Minnesota Supreme Court.
The Minnesota Judicial Center, home of the Minnesota Supreme Court.

This morning I’ll be arguing State v. S.A.M. before the Minnesota Supreme CourtS.A.M. is the first case under Minnesota’s new expungement law to be decided by the Minnesota Court of Appeals and now to reach the Minnesota Supreme Court.

Back in 2005, my client, S.A.M. (expungement appeals are decided using initials only), pleaded guilty to aiding/abetting second-degree burglary. He was granted a stay of imposition, a disposition in which a conviction is entered, no sentence is imposed, probation is ordered, and if the stay of imposition remains in place after probation the conviction is “deemed” a misdemeanor, even if it started as a felony or gross misdemeanor. Probation was ordered for up to ten years, but S.A.M. did so well that less than three years later he was discharged from probation. After two unsuccessful attempts to have the conviction expunged (sealed), in 2015 S.A.M. petitioned once more to have the conviction expunged under the new expungement law passed in 2014. That law allows the expungement of only some felonies (burglary isn’t one of them), but nearly all misdemeanors. I argued that the conviction was a misdemeanor under the expungement law. The government argued that it was a felony, even though the BCA’s and the court’s own records call the conviction a misdemeanor.

The district court ruled against us, holding that the conviction was a felony and the expungement statute didn’t apply. (The district court did rule in our favor on some other cases.) Because the case was so important, I agreed to file an appeal and represent S.A.M. pro bono. Joshua Esmay, a fantastic attorney who was then at the Council on Crime and Justice (which unfortunately closed its doors earlier this year), filed an amicus curiae (friend of the court) brief supporting us, and we argued the case in January. In March, the Minnesota Court of Appeals handed down a decision against us. But because we felt that the Court of Appeals used some shaky logic and decided the case incorrectly, we decided to file a petition for review to the Minnesota Supreme Court, even though that court accepts review in only about 13% of cases. But we were again supported amici curiae – the Council on Crime and Justice, the Minnesota State Public Defender, Volunteer Lawyers Network, and the Minnesota Association of Criminal Defense Lawyers (of which I’m a proud member) – and the Supreme Court did accept review. We filed our briefs this summer, and today we argue the case.

This is a very important case for a lot of people. Every year, there are about 5,000 cases in which a stay of imposition is granted. Some of those people will lose the benefit of that disposition and their cases will always be felonies, and some people would qualify for an expungement whether they had the stay of imposition or not (though winning the case may mean they’ll qualify sooner). But many, like S.A.M., have no hope of expunging their records unless the Supreme Court rules in our favor or the law changes. Winning S.A.M. won’t mean that those people will all have their records sealed. But it will mean that those people will have the chance to go before a judge and try to prove that they deserve it. I’ve had a number of people – not just attorneys on behalf of clients but people asking for themselves or those they love – contact me about this case because it’s so important to them. Winning it will mean a chance for people who’ve changed their lives for the better to put their old crimes much further behind them.

I’m proud to have the opportunity to help the justices decide such an important question, one that I think says a lot about us as a society. On a personal level, I’m excited for this chance to argue before the Minnesota Supreme Court, which is an honor that not all that many attorneys have the opportunity for. I’m hoping to be worthy of it.

Wish me luck!

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The Robina Conference

Goldy Gopher and the Minnesota MThis morning I’m back at my alma mater, the University of Minnesota Law School, for the Robina Institute of Criminal Law and Criminal Justice‘s annual conference. It’s an all-day event at which the participants are some of the top criminal law professors in the country as well as other smart people who spend their days thinking about the criminal justice system. This year’s theme is Paying for the Past: The Consequences of Criminal Convictions. I’ve been to previous Robina Institute events and they’ve been top-notch, so I’m excited to have the chance to attend another one.

I’m also excited for this conference because it gives me the opportunity to continue to hone the skills that set us apart from many other criminal lawyers: in this case, our focus on much more than simply the jail time or fines people face. Many criminal charges aren’t likely to result in ending up in custody or paying ruinous fines, but that doesn’t mean they aren’t a big deal. As I’ve discussed before, a criminal charge or a criminal conviction – or even an arrest that doesn’t lead to a charge or conviction – can have terrible consequences for nearly every aspect of a person’s life for decades. Often we’re able to mitigate or eliminate some of those collateral consequences, and at the very least we’re able to inform our clients of how an arrest, charge, or conviction will affect them. Many other lawyers, especially lawyers who practice in lots of other areas, can’t do that. Even where a client’s life has already been changed by the criminal justice system, we can often help to expunge (seal) criminal records.

The Robina Conference is important because we think our clients deserve lawyers who take seriously their responsibility to stay on top of the current state of the law, of legal practice, of research, and anything else that affects our clients or their legal problems. Every lawyer in Minnesota has to complete at least 45 hours of continuing legal education (CLE) every three years. While there are a few hours that have to be done in specific areas (ethics and elimination of bias), for the most part they can be taken in any area. That means that if a criminal lawyer is in a hurry to get her hours done or is looking to get them done as cheaply as possible, she can take them in, say, bankruptcy, employment, or trusts and estates. And while that will meet the state’s requirements to maintain a law license, it doesn’t do anything to ensure that a lawyer is keeping up with their skills or knowledge. Our promise to you is that we’re never going to be the lawyers who skimp on their training or think they are done learning. We’re going to go where we need to go and do what we need to do to be certain that we can best represent our clients.

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Final Forensic Science Report Released

We wrote the week before last about how forensic “evidence” is no magic bullet in criminal prosecutions. A presidential council had just issued a draft report finding that many forensic analysis techniques used often in criminal trials are not valid or reliable. We discussed how these are far too often accepted uncritically, even by defense attorneys, which can easily result in fundamentally flawed convictions.

Yesterday, the President’s Council of Advisors on Science and Technology released the final report, which largely tracks the draft report. Like the draft report, it has a number of recommendations for how to ensure that evidence purporting to be based on science really is based on science. For example, one of the recommendations is that “[t]he Federal Bureau of Investigation (FBI) Laboratory should undertake a vigorous research program to improve forensic science, building on its recent important work on latent fingerprint analysis.” Seems reasonable, right? Not for the highest-ranking law enforcement officer in the country, Attorney General Loretta Lynch:

While we appreciate [the Council’s] contribution to the field of scientific inquiry, the [D]epartment [of Justice] will not be adopting the recommendations related to the admissibility of forensic science evidence.

Fortunately, some have a better perspective on these issues. Alex Kozinski, a judge sitting on the United States Court of Appeals for the Ninth Circuit, had an opinion piece in yesterday’s Wall Street Journal. In that piece, Judge Kozinski discusses several angles on this story, but what’s hopeful is that he notes a widely-known but rarely-acknowledged truth:

Forensic scientists, who are often members of the prosecution team, sometimes see their job as helping to get a conviction. This can lead them to fabricate evidence or commit perjury.

Judge Kozinski has been known for some time as a leader in the fight against prosecutorial misconduct.

If you’re interested in reading the report itself, it can be found here.

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Forensic “Evidence” Is No Magic Bullet

Forensic TestingLast week, the Wall Street Journal ran a story (paywalled) about the President’s Council of Advisors on Science and Technology preparing to issue a report the draft of which casts grave doubt on the reliability of forensic evidence from techniques often used (typically by the government) in criminal cases. These include techniques whose results have often been admitted into evidence in high-stakes cases. This highlights a serious problem in criminal justice: not nearly enough people (whether practitioners of these disciplines, attorneys, judges, jurors, or members of the general public) critically question “science” when it is presented to them.

The draft report, which is expected to be made final this month, found that a number of forensic techniques such as “bite-mark, hair, footwear, firearm[,] and tool-mark analysis” lack scientific validity or adequate testing. While that may not mean that the forensic evidence from those techniques is worthless, it means that it may not meet the legal standard to be admitted as evidence in court (different jurisdictions use different standards, such as the Frye-Mack test or the Daubert test). While DNA and fingerprint analysis did meet the standards the council established, these aren’t so infallible as some would have you believe. In fact, “the council said it would be appropriate to inform jurors that only two properly designed studies of the accuracy of fingerprint analysis have been conducted and they both found false positives ‘at detectable frequencies.'”

Forensic evidence from testing techniques that have later been debunked has played a key role in some of the highest-profile cases in which a conviction has later been brought into question or simply overturned. One particularly famous (or infamous) example of this is the case of Cameron Todd Willingham, who was convicted of murder, sentenced to death, and executed. Not only was key forensic evidence wrong, experts later testified that the government’s experts who testified at trial should have known the evidence was wrong at the time of the trial. There are lots of very troubling examples, such as FBI “experts” giving flawed testimony for decades. And lest you think these kinds of problems couldn’t happen here in Minnesota, you only have to look to the St. Paul Police Department’s crime lab scandal just a few years ago.

If you find yourself involved in the criminal justice system and the government says its has forensic evidence against you, you need a lawyer who isn’t afraid to challenge that evidence and the testing behind it. Even if you discover later that the evidence against you may have been flawed, you may not get a second shot at challenging it.

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DWI/DUI Statistics from 2015 DPS Report

As we start the Labor Day holiday weekend, it’s the right time to think about DWIs/DUIs. Earlier in the week the Minnesota Department of Public Safety (specifically, the Office of Traffic Safety) released its 2015 “impaired driving facts” report. The report is an 86 page long document on DWI/DUI statistics and contains very little other than tables and appendices. Buried inside those, however, are some interesting facts.

The report breaks down the conviction rate percentage for DWIs/DUIs (number of convictions divided by  total number of incidents) by judicial district, county, and by alleged  number of violations. And for those in southeastern Minnesota, the numbers are interesting.

Perhaps one of the most glaring statistics is that Olmsted County has by far the highest conviction percentages of any large county in Minnesota. By June 1, 2016, 86.6% of alleged impaired driving incidents in Olmsted County in 2015 had resulted in convictions. Compare that to the seven Minnesota counties in Minnesota larger than Olmsted: Hennepin (66.3%), Ramsey (68.4%), Dakota (67.6%), Anoka (73.9%), Washington (61.2%), St. Louis (70.9%), and Stearns (74.3%). That means that alleged impaired driving incidents in Olmsted County incidents have a far higher conviction rate than that in the next-highest large county, Anoka (a notoriously prosecutor-friendly jurisdiction). Other than in Wabasha County, which edges out Olmsted County by just a tenth of a percentage point, Olmsted County also has the highest conviction rate in southeastern Minnesota.

If this will be you, don't drive.

Why would this be? It’s not clear. It could be a “good” reason – such as that law enforcement in Olmsted County does a better job with these offenses, that prosecutors are more skilled than elsewhere, or that the system works more quickly (as the report notes, the data only show convictions received by June 1, 2016). It could also be a “bad” reason – such as that the quality of the defense lawyering is not as high or that the prosecutors are inflexible. It could also be a reason that doesn’t fall neatly in to “good” or “bad” categories, such as that judges or juries are more willing to convict here than elsewhere. It may, of course, be some combination of these.

At the same time, Olmsted County has one of the lowest percentages of people with an impaired driving incident on their record, at just 9.6% – well under the statewide average of 11.4% and well less than half of the county with the highest percentage, Mahnomen County, which clocks in at 24%.

For a wider perspective on the report, there has been some coverage of it in the media, such as at MPR and MinnPost. If you want to spend what looks to be a lovely long weekend reading about DWI/DUI statistics (and who doesn’t?), there are some other fascinating tidbits. Did you know that there was someone who had an impaired driving incident in 2015 who has had TWENTY-FIVE priors?

Every defense lawyer knows that DWIs/DUIs and other alcohol-related driving offenses are tough to beat. But if you’re charged with a crime, including DWI/DUI, you need the best in your corner. At Liebling & Liebow, PLLC, we’ve defended people charged with DWIs/DUIs in courts across southeastern Minnesota. If you’re facing the serious criminal and civil consequences that begin with a DWI arrest, call us today.

Have a safe, pleasant, and fun holiday weekend. Don’t drink and drive!

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