‘Somebody else did it’ — a rare, but powerful, criminal defense

(via TwinCities.com)

As Jeffery Trevino’s attorney questioned law enforcement officials in September about surveillance video in the case, he hinted at a theory about a grainy figure seen walking in the Mall of America parking lot.

Didn’t the person — linked on tape to the car of Kira Steger, Trevino’s slain wife — look like someone who knew the lay of the land? And didn’t Steger, who managed a mall store, confront her own shoplifters?

The judge cut him off before he could connect the dots any further, agreeing with prosecutors’ objections that the line of questioning crossed a line into speculation.

But the implication was clear: Someone else could have been responsible for Steger’s death.

Such a defense has been enshrined in popular culture, from the mysterious one-armed man of the film “The Fugitive” to an elusive braces-wearing killer on television’s “The Simpsons.”

In the trial of Roger Holland, accused of murdering his wife in Apple Valley, expected to begin this week, the defense could get a fresh airing in the courtroom.

In the quest to sow reasonable doubt in jurors’ minds, it’s one of the most basic and potent seeds a defendant can plant, lawyers and legal experts say.

“If the defense attorney can describe an alternative narrative that has some coherence and probability, that’s the defense’s best chance of winning,” said Mark Osler, a University of St. Thomas law professor.

At the most formal level, the claim that someone other than the defendant committed a crime is known as an alternative perpetrator defense. It’s a strategy in which the defense introduces concrete evidence to flesh out an explanation of why someone else was responsible.

To do so, a defendant must declare the defense before the trial so the court can determine whether there’s enough evidence — be it fingerprints, motives, testimony or other clues — to connect the alternative perpetrator to the crime. It’s similar to the burden requiring prosecutors to stick to relevant, well-grounded evidence.

“It has to go beyond just mere speculation or suspicion,” said Derik Fettig, a teaching fellow at Hamline University’s law school.

Trevino didn’t go that far. Instead, his attorney teased out the idea of a mystery assailant in cross-examination and in closing arguments, where he suggested Steger’s marijuana use put her in the path of dangerous people.

Though it didn’t work — Trevino was convicted of unintentional murder — that kind of informal use of the defense is common, Osler said.

“You see elements of it in a lot of cases,” he said. “Even when you don’t have an alternative perpetrator named, the defense can try to create doubt about who did it.”

Attorneys for Holland have filed notice that they may raise an alternative perpetrator defense in his trial, which is scheduled to start this week in Dakota County District Court.

Holland’s claim includes an alibi: He was away from home, he said, when his wife, Margorie Holland, was apparently strangled March 7.

His attorneys are asking for special jury instructions that often come with alternative perpetrator defenses. Those instructions tell jurors to weigh the evidence in light of the defendant’s overall claims of reasonable doubt, not to put the alternative perpetrator on trial.

“You need not be convinced beyond a reasonable doubt that the alternative perpetrator committed the offense,” the instructions say.

Prosecutors in the case oppose the instructions, saying Holland thus far “has failed to even identify anyone as an alternative perpetrator,” let alone put forth the evidence needed to tie that person to the crime.

The judge in the case is still weighing the issue.

If the defense sticks, it can offer a defendant a more focused argument than the blanket claim that anyone else could have committed the crime, said Pat Flanagan, a Hugo-based defense attorney.

“It’s more than ‘I didn’t do it,’ ” Flanagan said. “It’s ‘I didn’t do it, and here, I can show you that someone else has done it.’ ”

He said he has prepared the defense a few times but has never used it in a trial because the cases were settled for other reasons. It isn’t one he uses commonly because many cases don’t have specific evidence of an alternative perpetrator.

“You can’t just say, ‘Well, a Martian did it’ or ‘Some guy down the street did it,’ ” Flanagan said. “You have to show that that person had a reasonable connection to the crime.”

Lynn Walters, a Plymouth-based freelance and appellate attorney, said a coherent claim that someone else committed a crime can give jurors something to latch onto.

She said that can have powerful psychological benefits — especially in cases of chilling crimes, such as homicides, in which jurors may feel compelled to seek an explanation and to place blame.

“Really, what the defense is trying to do is give the jury an alternative theory, something else to believe,” Walters said. “When you have some sort of a crime where the jury really wants to point a finger at someone, they’re going to be more likely to return a not-guilty verdict if they have something to believe.”

Marino Eccher can be reached at 651-228-5421. Follow him at twitter.com/marinoeccher.

Crookston member of meth ring gets six years in prison

(via Grand Forks Herald) A Crookston man arrested last year after narcotics agents found $10,000 worth of methamphetamine hidden in his home was sentenced to six years in federal prison Tuesday for being part of a meth trafficking ring.

Jose Angel Fuentes, 33, pleaded guilty in Minnesota’s U.S. District Court to one count of conspiracy to distribute methamphetamine. His prison sentence is four years less than the mandatory minimum sentence in his case.

Fuentes was originally charged with one count of first-degree drug sale and one count of first-degree drug possession in Polk County District Court after agents raided his Crookston home last August, but the charges were dismissed after he was named—along with seven others—in a federal indictment as a member of a drug conspiracy to move large amounts of meth.

Two other members of the drug ring have pleaded guilty to conspiring to distribute meth, including Lonnie Alan “Gordo” “Fat Boy” Giles, who handled more than 500 grams of meth, according to the federal indictment. Giles was ordered to spend 20 years in federal prison.

Charges were pressed against Fuentes after the Pine-to-Prairie Regional Drug Task Force obtained a search warrant to search his Crookston home, where agents found 75 grams of methamphetamine hidden behind a wall in his garage, court records state.

During police questioning, officers say he admitted to hiding the meth for another person so as to pay off part of a debt he owed that person.

In a court document filed prior to sentencing, Fuentes’ lawyer Patrick Flanagan asked for leniency, arguing Fuentes was a “minor” player and pointing to his struggle with drug addiction and the role his addiction played in his choices.

“Mr. Fuentes’ addiction got the best of him, leading him back into poor decision making and into contact with one of the parties on this case,” Flanagan wrote.

Flanagan also cited national discourse on mandatory minimum sentences imposed in drug cases, pointing to how former U.S. attorney general Eric Holder has encouraged prosecutors to move away from mandatory minimums.

“The discussion as to how to best combat the criminal drug trade by imposing a criminal penalty upon the offender while also acknowledging the addiction the offender may have and that played a part in the poor decision making, is an ongoing discussion in the criminal justice system,” Flanagan wrote.

The judge chose to give Fuentes a sentence less than the mandatory minimum for conspiring to distribute at least 50 grams of meth, which is 10 years in prison.

He will receive credit for the year of jail time he served prior to his sentencing.

St. Paul party bus joyrider pleads guilty to DWI charge

(via TwinCities.com) A Forest Lake man has pleaded guilty to a DWI charge stemming from his joyride in a bar party bus in downtown St. Paul.

Michael Allan Schurrer, 48, was charged in March with three gross misdemeanors: second-degree DWI refusal to submit to a chemical test, third-degree DWI, and driving after cancellation of license.

He pleaded to the refusal charge Monday and was sentenced by Ramsey County District Judge Salvador Rosas to 90 days in jail, which he’ll be allowed to serve on electronic home monitoring or work release, if eligible. Rosas also ordered Schurrer to be placed on probation for two years. The other two charges were dismissed.

According to a criminal complaint, police were alerted on the evening of March 5 that someone had stolen a small party bus from outside Alary’s Bar on East Seventh Street.

When officers located the bus, less than a mile away near Charles Avenue and Capitol Heights, Schurrer was exiting the driver’s side of the vehicle. He appeared drunk and admitted he was drunk, the complaint said.

Alary’s didn’t want to press charges for the auto theft, police said at the time.

Schurrer had five DWI convictions from 1995 to 2008, according to court records. His driving privileges have been canceled since 1997, the complaint said. As part of his sentence, Schurrer is ordered to abstain from drinking.

At the time he was arrested and charged, Schurrer was listed as the Forest Lake Hockey Association’s director of junior gold/bantam teams, but no longer appears to hold the position.

The Minnesota high school boys state hockey tournament was under way at the Xcel Energy Center, though Forest Lake was not in the tournament.

Elizabeth Mohr can be reached at 651-228-5162. Follow her at twitter.com/LizMohr.

 

 

 

Reputed Mob Boss Found Not Guilty of Conspiracy

Many ask how they can be charged with an offense that someone else committed. If the government can’t prove that the defendant agreed to commit the criminal act with the other person, a jury may find the accused not guilty. This is what happened in a recent case where an alleged mob boss was recently found not guilty in a Federal racketeering case. The government alleged that the Defendant had conspired with others to commit a variety of crimes. You can read about the case of George Borgesi and his release from custody after 13 years by clicking here

In Federal Court, 18 U.S. Code § 371 creates an offense “[i]f two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose.” In many conspiracy cases the accused must not only agree to commit the crime, but at least one of the conspirators must commit an overt act to accomplish the crime. This is not always a requirement. Furthermore, there is no requirement that the accused knows of the others involved in the conspiracy.

A conspiracy is often confused with aiding and abetting. 18 U.S. Code § 2 defines aiding and abetting as “ (a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal. (b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.” With aiding and abetting there is no requirement that an agreement to commit the crime was reached between the accused and the actor. In such a case, if a defendant counseled, gave advice on how to commit the crime or assisted in the completion of the crime, the defendant is may be charged as though the defendant committed the actual crime.

Conspiracy as well as aiding and abetting charges may seriously effect how to best prepare a defense for your trial. Be certain to retain a lawyer to assist you with these charges. Contact Attorney Patrick Flanagan at 651-200-3484 or at PatrickFlanagan@Flanaganlawsit.com if you have questions about your criminal case.

Fish scares away burglar

If you live near a lake, or know someone who does, you may have have come across the talking bass that hangs on the wall known as Billy Bass. While this wall mount has been know to annoy people, this may be the first time it has scared someone. The police in Minnesota believe the talking fish scared away a would be burglar. You can read the story here.

The would be burglar should still be careful. Even though he/she may not have taken anything, the crime may have already occurred. Minnesota Statute Section 609.582 defines Burglary. Burglary in the first degree, which is what the Bill Bass allegation is if this was a dwelling and the homeowner or another person was inside the house somewhere, is outlined in Subdivision 1: “Whoever enters a building without consent and with intent to commit a crime, or enters a building without consent and commits a crime while in the building, either directly or as an accomplice, commits burglary in the first degree and may be sentenced to imprisonment for not more than 20 years or to a payment of a fine of not more than $35,000, or both if: (a) the building is a dwelling and another person, not an accomplice, is present in it when the burglar enters or at any time while the burglar is in the building; (b) the burglar possesses, when entering or at any time while in the building, any of the following: a dangerous weapon, any article used or fashioned in a manner to lead the victim to reasonably believe it to be a dangerous weapon, or an explosive; or (c) the burglar assaults a person within the building or on the building’s appurtenant property.

If you have been charged with a crime, call the Flanagan Law Office at 651-200-3484 for a free consultation

Woman makes sexual advances toward airline passenger

Recently a woman flying from Baltimore to Salt Lake City, Utah had a few too many drinks before boarding a plane. The woman allegedly asked the man seated next to her for sex. The woman became belligerent and abusive when the man turned her down. The plane made an emergency landing at the Minneapolis/St. Paul International airport where she was turned over to airport police. A passenger with a cell phone captured the scene on video. You can read about the incident and watch the video by clicking here.

With Spring break around the corner and people looking to escape the winter, it is important for airline passengers to remember that being disruptive on a plane may result in federal charges. Federal law makes it illegal to interfere with the flight crew. Assaulting a crew member is governed by 49 U.S.C. § 46504.

Actions that do not amount to a physical assault may still result in significant civil penalties. Such actions may be offensive or disruptive behavior, blocking a flight attendant from walking down the aisle, failing to return to your seat, or a variety of matters. Disruptive behavior is covered under 14 C.F.R. §§ 91.11, 121.580, 135.120.

The safest way to avoid criminal charges while on a plane is to obey the crew member’s instructions. Do not raise your voice at a crew member, or make threats. Ask to speak to the flight attendant in charge if you believe that the crew member you are dealing with is in the wrong. Finally, unless rendering aid, never touch a crew member. If you believe that you were treated unfairly, or the crew was out of line, wait until the end of the flight and you may then file a complaint against the crew member with the airline, or at this site with the Department of Transportation’s Aviation Consumer Protection Division.

Here are a few of penalties disruptive passengers expose themselves to:

Assault. Assaulting a crew member is punishable by up to 20 years’ imprisonment, and a fine of up to $250,000. If a dangerous weapon is used, the defendant can be imprisoned for life. 18 U.S.C. § 3571, 49 U.S.C. § 46504.

Interference. The maximum civil penalty for interfering with a crew member is a fine of up to $25,000. 49 U.S.C. § 46318.

Expungements

Sometimes people make poor decisions. What if you make one very poor choice, or if you make a choice you believe is the only choice you have to make at the time, but it turns out to be illegal? That choice may effect your life for years if you are convicted of a crime. What if you turn your life around, or there are circumstances about the decision you made that can be rectified with some sort of rehabilitation? What if the Judge who heard your case believes that you deserve a second chance after you have paid your debt to the community? If that conviction can’t be sealed, the information, especially in today’s cyber world, will haunt you when you apply for student loans, apply for schooling, apply for housing, or try to find work. Even if the Court seals its records, the law as it is now states that the Court can’t tell the executive branch – law enforcement – to seal their records. Even if it is in everyone’s best interests that the records be sealed. Thankfully, Rep. John Lesch, D – St. Paul, has drafted a bill that would allow the Courts to determine when the records should be sealed, even in the executive branch. Sealing does not mean erasing. The information would simply not be public.

For example, suppose a high school senior, who is 18, gets arrested with 33 grams of marijuana in his possession. That is a felony. Just over one ounce. Suppose this 18 year old is a straight A student and for all other discussions is a great kid. The arrest records fall under the executive branch, law enforcement. Even if the prosecutor offers to resolve the case in a manner that will ultimately result in the matter being dismissed, the current law only allows for the court records to be sealed. The arrest records and police reports will still be open and available through the executive branch. That is why employment agencies, housing agencies and others simply take a trip to the BCA, the local Sheriff’s Department or the Police Department to obtain records on people even if the case was dismissed.

This bill, if it passes, should allow the Court to properly seal all the records that hinder a person’s ability to be successful after they have paid their debt to the community for their wrongdoing. Click here to read an article about the process.

Mandatory Minimums on illegal drug cases

In 2013 United States Attorney Eric Holder sent a memo to his Assistant United States’ Attorneys noting that not all illegal drug cases should demand mandatory minimum sentences. If you have a case drug case in Federal Court or Minnesota State Court, please contact Patrick Flanagan at 651-214-7209 to discuss your case

Click here to read more about the Holder memorandum

Or watch the news conference on the subject here http://www.youtube.com/watch?v=CcuzCNwFktA”>Holder Conference

Our new office location

pat-flangan-attorney-twin-cities

We are happy to announce that Flanagan Law Office has opened a 2nd office near the University of Minnesota in the Twin Cities.

Flanagan’s offices are now both centrally in the corridor of University Avenue and Highway 280 on border of Minneapolis and St. Paul. The new office location is right on the Light Rail line and just two blocks from the stadium.

Contact Pat Flanagan Defense today if you are in need of any legal advice or guidance. We’re now serving you in two locations of the Twin Cities.

Flanagan Law Office

5669 147th Street N.
P.O. Box 167
Hugo, MN 55038

Telephone: 763-786-5324 or 651-200-3484
Fax: 651-200-3486

Map and Directions

University Location

2701 University Avenue South East
Suite 209
Minneapolis, Minnesota 55414-3236

Telephone: 763-786-5324 or 651-200-3484
Fax: 651-200-3486

Map and Directions

“I Can’t Drive 55” – Sammy Hagar

After a person is stopped for speeding, people will often wonder how the ticket will effect their driver’s license and insurance rates.  The Honorable Alan F. Pendleton, Judge of the 10th Judicial District in Minnesota, put together a nice chart that explains when a speeding ticket will go on your record in Minnesota.

In Minnesota, if you are in a 55 mile an hour speed zone and you are not going 10 miles per hour over the speed limit, then your ticket should not appear on your record.

Click below to read the entire chart:

I can’t drive 55