Month: March 2010

War Veterans and the Criminal Justice system

With more than 1.8 million Americans havin served in Afghanistan and Iraq, it was only a matter of time before those dedicated service men and women had contact with the criminal justice system. There is no possible way for those in society who did not serve in the armed forces to understand the stress this proud service caused on these soldiers individually.

Unfortunately, many of these same soldiers who proudly served our nation and faced the greatest of adversities in order to survive and keep others safe, have not sought help for themselves once returning home. This has landed some in the criminal courts with charges of assaults, dwi’s and other alleged crimes. One of the questions that we need to ask in the criminal justice system is, but for the experiences that this young person saw in combat, would they be here now? But for their service to a nation that called upon these soldiers to serve, would they have engaged in the behavior the government now accuses them of?

As was pointed out in a recent Star Tribune Article, New vets court aims to help scarred soldiers, March 9, 2010 (by Mark Brunswick), “Veterans are a unique group of people, and the combat veteran in particular needs to be addressed.” Right now veterans account for roughly 10 percent of people with criminal records. Id.

A soldier who does receive help through private means, or the United States Department of Veteran Affairs (VA), may very well receive a report that diagnosis them with Post-Traumatic Stress Disorder (PTSD). This may also be inflamed by, or accompanied with alcohol use to self-medicate and manage anxiety since returning home. A returning soldier may also experience intrusive and distressing daytime thoughts about experiences, hypervigilance, exaggerated startle response, avoidance of trauma and war related stimuli, emotional and physical reactions to internal re-experiencing of the traumas, sleep disturbance marked by trauma and violent themed nightmares, insomnia, elevated anxiety, anxiety attacks, short term memory loss, emotional numbing, depression, isolation, detachment and survivor’s guilt.

A recent RAND Corporation study estimates that nearly 20 percent of Iraq and Afghanistan war veterans — 3000,00 in all– are returning with symptoms of post-traumatic stress disorder or depression; and only slightly more than half have sought treatment. Star Tribune Article, New vets court aims to help scarred soldiers, March 9, 2010 (by Mark Brunswick). Of that group, only half received minimally adequate treatment. Id.

Your attorney needs to understand and convey these unique circumstances to the prosecutor and the Court. Your attorney should also act as a legal counselor to provide guidance on where you can go to seek evaluations and treatment.

If you should find yourself involved in the criminal justice system and would like to discuss your case, contact Patrick Flanagan for a free consultation.

763-786-5324
651-200-3484

email: patflanagan@patflanagandefense.com

www.patflanagandefense.com

763-786-5324
651-200-3484
patflanagan@patflanagandefense.com
www.patflanagandefense.com

Sentencing Trials

If you are convicted of a crime, the next phase is sentencing. In certain circumstances, the government may ask for the statutory maximum, rather than the guideline sentence. A guideline sentence is based upon a grid that is created by the sentencing guideline commission. This grid offers a guideline to the courts for sentencing. The guideline is based upon several factors, including, but not limited to, how people in similar circumstances have been sentenced in the past. For example, in Minnesota, possession of over 42.5 grams of marijuana is a felony with a statutory maximum penalty of 12 months and one day in prison. The guidelines suggest a sentence that has that 12 months and one day in prison stayed (do not have to do) as long as certain probationary conditions are met. This may, or may not include local jail time with work release privileges. Take a person caught with 45 grams of marijuana, with no criminal history. This person may want a sentence with no jail and probationary conditions to remain law abiding and remaining jail/prison time hanging over their head. The government may ask the court to not follow the guidelines and seek what is called an upward departure. The government may want you to serve the full one year and a day in prison, even though the guidelines do not recommend that.

In past years, the Court was simply able to consider the arguments of the prosecutor to determine if this prison sentence recommendation would be the correct thing to do. The legal landscape has just changed considerably on this issue. Blakely v. Washington, 542 U.S. 296 (2004), held that, in the context of mandatory sentencing guidelines under state law , the Sixth Amendment right to a jury trial prohibited judges from enhancing criminal sentences based on facts other than those decided by the jury or admitted by the defendant. This means that you have a right to a sentencing trial before the Court is able to upward depart on your sentence. In State v. Rourke, 773 N.W.2d 913 (2009), the Minnesota Supreme Court explained the difference between “facts” and “factors.” It also explained the differing roles that courts and juries play in sentencing departures.

Under the Minnesota Supreme Court’s Rourke case, in order for a defendant to receive an upward departure, a jury must find “additional facts.” By “additional,” the court means some fact that wasn’t necessary to prove the offense and wasn’t admitted by the defendant. For example, a finding that a defendant sprayed the handcuffed victims with chemicals is a fact, and it might be the kind of fact that justified a departure IF the sentencing court decides that spraying helpless people with chemicals amounts to “particular cruelty.” The court, not the jury, gets to decide that issue because “particular cruelty” is not a fact, it’s a factor.

If you should have questions about your criminal case, contact Patrick W. Flanagan for a free consultation.

651-200-3484
763-786-5324

email: patflanagan@patflanagandefense.com

www.patflanagandefense.com

763-786-5324
651-200-3484
patflanagan@patflanagandefense.com
www.patflanagandefense.com

Sixth Amendment Right To Confrontation

The Sixth Amendment of the Constitution gives us the Right to confront our accusers in open court. However, the the government would often times simply attempt to use video taped interviews for certain witnesses rather than putting them on the witness stand. Recently the Supreme Court did away with this violation by the government. Crawford v. Washington, 541 U.S. 36 (2004. When statements are testimonial, the accused has a right to Confrontation.

There are some limitations to the Right to Confrontation. First, the statement must be testimonial. This is a term of art that is used by the court system. Your attorney should be able to determine whether the statement is testimonial or not.

Another limitation to the confrontation clause is that the accused can’t be the cause of the failure to confront. This may happen in a situation where the accused attempts to threaten, or does threaten a witness. However, the burden is on the government to show this. Giles v Calif, 128 SCt 2678 (2008), requires the trial court to find: 1) the declarant is unavailable; 2) def engaged in wrongful conduct; 3) wrongful conduct procured unavailability of witness; 4) def intended to procure unavailability of witness. The Court also says the burden is on the state to prove this by a preponderance.

If you should have a question or a case that involves your right to confront an accuser, contact Patrick W. Flanagan.

651-200-3484
763-786-5324

Patflanagan@patflanagandefense.com

www.patflanagandefense.com

763-786-5324
651-200-3484
patflanagan@patflanagandefense.com
www.patflanagandefense.com

Fake drugs still a crime

Every once in awhile a person may try to sell a powdery substance, or a pill, that they claim is a narcotic such as cocaine, methamphetamine, ecstasy, or some other narcotic. The person selling the product may mistakenly believe that because the substance was not really a drug, they did not commit an offense. Why might someone do this? To turn an easy profit, for one. However, to believe that this is not a crime is a mistake.

Under Minnesota law, Minnesota Statute Section 152.097, it is felony to sell a simulated controlled substance.

There are many elements to an offense such as this and the government must prove each and every element by proof beyond a reasonable doubt before you can be convicted. Make sure you have a lawyer review your case before entering the courtroom to face such allegations.

If you are need of a free consultation, contact Patrick W. Flanagan

763-786-5324
651-200-3484

email: patflanagan@patflanagandefense.com

www.patflanagandefense.com

763-786-5324
651-200-3484
patflanagan@patflanagandefense.com
www.patflanagandefense.com

Your lawyers role does not end upon a finding of guilty

Often times a person accused of a crime will ask, “what can you do for me?” This is then followed up with, “well, I can plea and take the standard deal, right?” True, this may happen. However, what if you did not do the alleged offense? What if their are mitigating circumstances? What if the probationary conditions requested by corrections are such that you will not succeed and end up doing your sentence behind bars?

This last situation almost happened to a client of mine. Had he not had a lawyer, he would have failed on probation and had to spend his time behind bars. Thankfully, we were able to educate the judge as to how unfair the proposed conditions of probation were. The judge modified the sentence that will eventually allow my client to have the case dismissed.

Here is the scenario: My client met a young lady when she came into his place of employment to purchase some merchandise. The young lady stated she was 17. My client was 19. The young lady looked like she was 17 according to some witnesses and my client. The young lady began texting my client. This continued for several days. One evening, the young lady slept over at a friends house. She texted my client asking him to meet her. My client invited her to a party at his friends house. There was alcohol at this party. The young lady told my client she could not drive there and needed a ride. My client picked her up, met her at the driveway of her friends house and brought her to the party. This is where the facts become in dispute.

A few days after this party, the young lady went to her counselor at high school and told the counselor she believed she may be pregnant from having sexual intercourse with her 19 year old boyfriend. Turns out, the young lady was not 17, but 15. A felony as a 15 year old can’t give consent. There is a defense of mistake of age at 15, and that was offered by us as a defense in this case. The young lady stated she did not want my client prosecuted and that the sex was consensual. Remember, a 15 year old can’t give consent. She also claims that she told my client how old she was. There were also some other factors about whether my client should have known how old she was. Those were up for dispute.

My client admitted to officers that he knew the young lady and that they kissed and and feeling each other. This is not a felony. This is a gross misdmeanor. My client denied any sexual intercourse. In fact, that was the only night these two had contact according to my client. That he has not spoken to her since the event.

The young lady’s mother acknowledged that the young lady is a handful. That she tries to look older than she is. That in fact, she no longer lives at home as she will not listen to what her parents instruct her to do. The mother also claimed that my client has known the young lady since she was 14 years old and the two have had a romantic relationship together. The mother stated that my client continued to text her explicit messages and that the relationship continues despite a court order to stay away from each other.

In the end our investigation found these accusations to be false. There was no intercourse between the two. My client’s telephone records established that he never sent her a text after the night in question and there was no ongoing relationship. Furthermore, the investigation revealed that my client and the young lady never met until she came into that store a few days before this event. The young lady was 15, only a few days away from 16.

The case resolved. My client was fearful of being convicted of a criminal sexual conduct with a minor. An offense that would be a felony, mandatory registration and prison time. The eventual offer was for sexual contact, not conduct (contact over clothing of sexual parts, not penetration), a gross misdemeanor and the court would consider a stay of adjudication given the circumstances. A stay of adjudication means that at the end of completing probationary conditions, the case will be dismissed.

My client then had to follow the statute and complete a psychosexual evaluation. During this interview, my client was asked about the penetration. My client stated that there was none. The department of corrections and the evaluator took that as a denial of acceptance of responsibility. Why is this important? This is important because the department of corrections recommended that my client successfully complete sex offender treatment and after care as directed by the Corrections department. Also that my client comply with polygraph testing. If the client does not successfully complete these requirements, the client fails probation, will have a conviction and must go to jail, or prison as the case may be. Corrections further recommended that the court execute my client’s sentence because he is not amenable to probation and will successfully complete sexual treatment because he won’t admit to having sexual intercourse with the young lady.

This is absurd. After significant debate about the issue the department of corrections acknowledged that they consider what the initial complaint is to be true, not what the evidence shows. So, even though the evidence shows that sexual intercourse never happened, my client would be required to admit to having sexual intercourse in order to be successful with his treatment. This is because, whether treatment is successful, is completely subjective and arbitrary to the person performing the treatment. The kicker is this. Had my client admitted to having sexual intercourse with the young lady, that would be a lie and he would fail the polygraph and thus fail probation and end up in jail or prison. As was finally acknowledged, there is no way to successfully complete this absurd request.

The sex offender laws are a knee jerk reaction to very bad events. The downfall is that rather than looking at the specifics of the case and the specifics of the individual, we sentence according to a mob fear. A guilt by association. We lump in the minor offenses of a senior dating a freshman or sophomore with the child molesters. This is wrong. This is against every meaning of our Constitution and should make everyone appalled. A person can outright lie in their initial report to police because they are angry with their parents and want to spite them, the true facts can come to light, but the overpowering government because of our apathy as voters to educate ourselves, can decide that the truth is not the truth. Instead, what the government states is the truth must be accepted as the truth, or sit in prison. Sound familiar? Dictatorships are run this way.

Thankfully in this case, we had a judge that saw through the inconsistencies and nonsense of the alleged facts coming, not from the alleged victim, but the mother. The judge also discerned that Department of Corrections demands were a joke. That the demands were subjective, arbitrary and had no foundation. In the end, my client was placed on a proper probation with educational courses and also received that stay of adjudication. Had my client not had a lawyer, the department would convinced the court to do the opposite. They almost succeeded.

Your lawyer does much more than get a deal, an offer, or doing a trial. The representative role continues to insure that the government does not succeed in taking advantage of you during sentencing should you be convicted.

If you should find yourself in need of legal advice, please call for a free consultation.

Patrick W. Flanagan
763-786-5324
651-200-3484

email: patflanagan@patflanagandefense.com

www.patflanagandefense.com

763-786-5324
651-200-3484
patflanagan@patflanagandefense.com
www.patflanagandefense.com

Each incremental intrusion during a stop must be analyzed

Often times a person’s vehicle is stopped due to an alleged traffic violation. This alleged violation may then result in a search of the vehicle, leading to felony charges or other charges significantly more severe than the reason for the initial stop. Just because an officer may find something illegal in your vehicle during such a search, does not mean that you will be convicted. One reason that the conviction may not occur is that the officer may have illegally searched the vehicle, or questioned the driver. This may result in the suppression of found evidence, or of information garnered from the driver’s answers.

“[E]ach incremental intrusion during a stop must be strictly tied to and justified by the circumstances which rendered the initiation of the stop permissible.” State v. Askerooth, 681 N.W.2d 353, 364 (Minn. 2004) (quotations omitted). Here, the first intrusion occurred when the officer identified Defendant. Once they had knowledge that the Defendant was not the owner with a suspended driver’s license the purpose of the stop had evaporated. Further detention and search violated the Defendant’s legal, statutory and constitutional rights in that the basis for the stop had ended. See also State vs. Hickman, 491 NW2d 673 (Minn.App.1992).

When confronted with an issue involving the search of your person or property, you should always seek the advice of an attorney knowledgeable in this area. Should you have such an issue and wish a free consultation, please contact Patrick Flanagan at:

763-786-5324
651-200-3484

email: patflanagan@patflanagandefense.com

www.patflanagandefense.com

763-786-5324
651-200-3484
patflanagan@patflanagandefense.com
www.patflanagandefense.com

Eyewitness evidence is not always reliable

Eyewitness testimony frequently provides information for arresting and charging someone of a crime. This testimony is also used by the prosecutor in an attempt to convict someone of a crime. These convictions can have dire consequences on future freedoms, employment, housing and life events. Therefore, it is imperative that eyewitness evidence be accurate and reliable. The accuracy and reliability depends upon how the government obtains that eyewitness testimony.
Recent DNA cases have shown the importance and the need for accurate and reliable eyewitness evidence. When recent DNA science has shown the convicted person did not commit the crime, the eyewitness testimony that convicted the person was shown to be fallible. Eyewitnesses do make mistakes in recalling and interpreting events. The human memory does have flaws.
These flaws are further emphasized by an investigator’s cues such as, body language, tone of voice, eye movement and other non verbal indicators. Each cue will negatively impact the reliability of eyewitness evidence. One way to avoid such cues is for investigators to use a “blind” procedure when obtaining eyewitness testimony. Many departments, or investigators, do not use these blind methods. There are various reasons the blind method is not used, but the most common is time. Using the blind methods requires more time and effort.

If you are accused of a crime, it is important that you have a lawyer review all the evidence in your case to make sure all proper procedures were followed. For a free consultation and review of the accusations against you, contact Patrick W. Flanagan at:

763-786-5324

651-200-3484

Email: Patflanagan@patflanagandefense.com

www.patflanagandefense.com

763-786-5324
651-200-3484
patflanagan@patflanagandefense.com
www.patflanagandefense.com

>Drug possession in a motor vehicle

>I represented a defendant in a methamphetamine case were the issue was possession. The methamphetamine was found in my client’s motor vehicle. A passenger was also in my client’s vehicle.

The state attempted to prove their case through “constructive” possession. In order to show constructive possession, the State must prove: a) that the officers found the methamphetamine in a place under Defendant’s exclusive control to which other people did not normally have access; or b) that there is a strong possibility, which may be inferred from the evidence, that Defendant consciously exercised dominion and control over the methamphetamine if it was found in a place to which other people had access. State v. Florine, 303 Minn. 103, 105, 226 N.W.2d 609, 611 (Minn. 1975).

The State attempted to also work in the presumption of control one has when operating a motor vehicle. However, this presumption can be overcome. In this case, the presumption was overcome. The officer allowed the passenger to remain in the vehicle while searching and running a background check on my client for 45 minutes. Furthermore, the officer observed the passenger make “furtive” movements while in the vehicle. In addition, the officer then allowed the passenger to leave the scene without searching the passenger.

The verdict was returned as Not Guilty.

It is important that you have an attorney review all the allegations and “evidence” the government alleges to have against you. There may be inconsistencies or mistakes made that the untrained eye will not recognize. If you have questions about your case, please contact Patrick W. Flanagan for a free consultation.

Patrick W. Flanagan
763-786-5324
651-200-3484
Patflanagan@patflanagandefense.com
www.patflanagandefense.com

>Make sure your license is valid before you drive

>In a recently appealed case to the Federal 8th Circuit, a man was brought down by his suspended driver’s license. This case helps to illustrates how law enforcement may use information from one source to lead to an investigation on a more serious offense. Searches by law enforcement is an area of law that is often contested. To properly contest a search and to determine if law enforcement violated your 4th Amendment Rights, you should contact a lawyer immediately. Patrick Flanagan offers free consultations. You can reach him at 651-200-3484; 763-786-5324; email: Patflanagan@patflanagandefense.com; www.patflanagandefense.com

United States v. Joe Franklin, No. 09-1549 (W.D. Arkansas).

In May 2008, a confidential informant notified police that Frankling was supplying cocaine to a street dealer, which led officers to begin to monitor him. Later, police observed the street dealer enter and exit Franklin’s house before meeting with the informant to complete drug deals. During the investigation, officers obtained Franklin’s bank records from the previous 8 months, which revealed more than $145,000 in total transactions. Then, on June 19, 2008, after a discussion between one of the investigating detectives and a police officer with the local police department, who knew Franklin’s driver’s license had been suspended, Franklin was stopped after being observed driving his vehicle. During the stop Franklin was arrested and officers discovered cocaine on his person. Thereafter, a judge issued a warrant for a search of Franklin’s residence which revealed incriminating evidence.

The Eighth Circuit held that based on the information discussed between the investigating detective and local police officer, there was probable cause to make a warrantless arrest because the officer could reasonably believe Franklin was dealing cocaine. Also, the Eighth Circuit concluded that the warrant to search Franklin’s home was supported by probable cause,including statements by the informant, surveillance of Franklin’s house, and the suspicious transactions in Franklin’s bank account.

If you believe that you may have a case that involves a search issue, contact Patrick Flanagan at the Flanagan Law Office immediately. Office: 763-786-5324; 651-200-3484; email: patflanagan@patflanagandefense.com; www.patflanagandefense.com