The Criminal Court Process in Minnesota: A Step-By-Step Guideline

Arrest

A law enforcement officer may arrest a person if he or she has probable cause to believe that a person has committed a specific crime. This probable cause is a much lower standard than what is needed to actually obtain a conviction (proof beyond a reasonable doubt). When an arrest is made, the person accused of a crime may be ticketed and released, or taken into custody and transported to the police station. At the police station they are fingerprinted and booked.

Filing a Complaint

The Summons and Complaint is mailed to the Defendant; this often occurs when an officer makes the decision not to arrest a Defendant. This document will inform the person of the charges. There are four levels of offenses in Minnesota:

Petty Misdemeanor – Examples of Petty Misdemeanors include minor traffic offenses such as Speeding. A person will not serve jail time if they are convicted of a petty misdemeanor, thus these are not deemed as criminal offenses. The maximum penalty is a $300 fine. Typically, a formal Complaint is not issued in petty misdemeanor cases. Instead, the person receives a ticket.

Misdemeanor – Examples of Misdemeanor cases include: Disorderly Conduct, Thefts of $500 or less where a dangerous weapon was not involved, first time DWI where the reading was .08 or more but less than .20, and first time 5th Degree Assault or Domestic Assault. The maximum penalty for a misdemeanor is 90 days in jail and/or a $1000 fine. Typically, a formal Complaint is not issued in misdemeanor cases. Instead, the person receives a ticket, also called a tab charge. If the Defendant wants a formal Complaint from the prosecutor, either he or his lawyer (if he is represented by an attorney), must request a formal Complaint.

Gross Misdemeanor – Examples of some Gross Misdemeanors include but are not limited to: first time DWI with test result .20 or more, some repeat DWI offenses, fifth Degree Criminal Sexual Conduct, and certain Theft charges where a dangerous weapon was not used and the amount of the alleged theft was more than $500 but not more than $1,000. The maximum penalty for a gross misdemeanor is one year in jail and/or a $3000 fine.

Felony – Examples of felonies include: Murder, Armed Robbery, most Drug Offenses, most Criminal Sexual Conduct Offenses, Criminal Vehicular Operation where there was substantial or great bodily harm to another person, a fourth DWI offense within a period of 10 years, and Theft where the amount of the alleged theft is over $1,000. The maximum penalties for a felonies range from a year and a day in prison up to life imprisonment, depending on the type case. Maximum fine amounts also vary based on the severity level of the alleged offense.

Bail Hearing

If the person taken into custody remains in jail, he or she must be brought in front of a judge to determine the conditions of his or her release. At the Bail Hearing, a Judge will determine if a Defendant will be released on his own recognizance (ROR) with the promise that he will appear in court.

Alternatively, the judge may decide that a person is a flight risk and/or that he or she is a danger to the public safety as well as weigh other factors in determining that a certain bail amount be set in a particular case. As a general rule, it is a very good idea for a Defendant to arrange to have a lawyer present at the bail hearing if possible so that the attorney can argue for a lower bail or that the defendant be released on his own recognizance.

Timing of the Bail hearing: Under the Minnesota Rule of Criminal Procedure, a Defendant shall be brought before a judge or judicial officer without unnecessary delay and in any event, not more than 36 hours after the arrest. However, this 36 hour rule is does not include: the date of arrest, Sundays, or other legal holidays. For example, it is common that a person arrested on a Saturday morning would not have his bail hearing until Tuesday morning by noon although this is more than 36 hours after he was arrested because the 36 hours did not begin to run until Monday morning at midnight. The only bright spot here is that a person is entitled to credit against his sentence for all time spent in custody. In some cases an attorney may be able to help a Defendant get released before a formal bail hearing is held. So, an attorney should be consulted as soon as possible.

Arraignment

At this stage, the Defendant attends an arraignment, which is also called the Initial Appearance, where the Judge or an attorney reviews the Complaint with the Defendant and explains the right to have an attorney for representation, and, most importantly, his right to have a jury trial in any criminal case in which jail time could be imposed. If it has not already been done, a bail amount and/or other conditions of release may be set at the Arraignment hearing or the Judge may instead decide to release the Defendant on his or her own recognizance (ROR) with the promise that he or she appear at the next scheduled court date. Unless the defendant pleads guilty at the Arraignment, the Judge will set a future court date for defendant to come back to court to attempt to settle the case. The second appearance is scheduled generally one month to six weeks after the Arraignment. Also, if the Defendant was not initially arrested, it it likely he will have to formally be booked before leaving the courthouse. This process is having a picture taken and your finger prints rolled by an officer.

Discovery

After the Arraignment, the Defendant’s attorney will serve a formal request for Discovery in the case. Upon request, the County Attorney’s Office must give the attorney all the documentation that they have in their possession that relates to the Defendant’s case. This documentation generally includes the police reports, transcripts of any tapes of statements that were made by the defendant or other witnesses during the initial investigation and any videos or recordings that were obtained at the time of arrest. Generally, there is a small out of pocket copying and processing cost associated with obtaining these reports which must be paid before the police reports, copies of statements and other discovery material will be provided.

Settlement

The next is the settlement phase. There are several different types of hearings at this stage and the Defendant may need to attend more than one hearing depending on the case. Many cases are settled at this stage. The types of hearings that the Defendant may be required to attend are:

Omnibus Hearing – A hearing to attempt to settle the case and/or litigate legal issues and motions.

Contested Omnibus Hearing – A hearing to contest the admissibility of evidence at trial that Defendant and his or her attorney believe was obtained in an unlawful or improper manner. A defendant will need to consult with an attorney to determine what the relevant law is and whether it would be worthwhile to contest the admissibility of a particular piece of evidence.

Pre-Trial Hearing – this hearing is an opportunity for the attorneys to discuss the facts of the case and attempt to resolve the case prior to trial.

Trial

If no resolution has been reached during the settlement phase, the case will then be set for a court or jury trial. In misdemeanor and gross misdemeanor cases a defendant is allowed a six person jury trial or, instead, a trial to a judge which is called a court trial. Felony cases allow a defendant to have a twelve person jury trial or a court trial. The defendant is allowed to choose if he or she would like a jury trial or a court trial. If the defendant wishes to waive or give up his right to a jury trial, and have a court trial instead, this must be done on the record in open court.

Sentencing Guidelines

The State of Minnesota has developed sentencing guidelines for felony level offenses which take into account the severity level of an offense as well as the Defendant’s prior criminal history, called the criminal history score. The Sentencing Guidelines Grid lays out this information in a grid format with the severity level of the offense on the left hand side of the grid and the Defendant’s Criminal history score on the top side of the grid. The grid will tell a Defendant the presumptive sentence in his or her case, however, the court may consider aggravating as well as mitigating circumstances in determining the sentence in a particular case.

A person accused of a felony level offense should consult with an attorney regarding the penalties that could be imposed in his or her particular case, if he or she were to be convicted.

Sentencing

If at any time the Defendant pleads guilty, or is found to be guilty after a trial, a Sentencing Hearing will be held. Depending on the severity of the offense, sentencing may be done right away after the plea is entered, or on a different day after a pre-sentence investigation has been completed by probation.

Sentences can include: jail or prison time, sentence to service work for the county, being subject to electronic home monitoring, being required to perform community service work, pay fines and/or restitution, and being on probation or parole for a period of time, as well as other conditions that would be set by the judge and/or the probation or parole officer acting under the direction of the judge. Examples of some other conditions that might be set on a particular defendant include: obtaining a chemical dependency assessment and then attending classes or chemical/alcohol dependency treatment, obtaining an anger management assessment and then attending anger management classes, completing a victim impact panel sponsored by MADD or a similar group, being required to remain law abiding and having no same or similar offenses for the period of probation, being subject to random testing at the direction of probation, and/or following other rules to be determined by the Judge or the defendant’s probation officer. The Defendant may also lose his or her driving privileges, or the right to possess a firearm for a period of time as a result of a criminal conviction.

Let’s Hope for Justice

Domestic Abuse and Child Abuse is always a sad situation. This guy has a history, which many of the most dangerous offenders do, and unfortunately the ultimate tragedy came of it. If you are in Minnesota, or anywhere else for that matter, and there is Domestic Assault/Violence or Child Abuse in your home (or you know of it occurring in someone else’s home), please report it and seek the necessary help. There are many shelters out there set up for the purpose of helping victims. Silence will not stop the problem.


Be Careful About What You Post on Facebook

When you are about to post something on a social media website, stop and remember that your post will potentially be seen by everyone…….including, in some circumstances, the police.

The following article is attributed to Lawyers.com

It shouldn’t need to be repeated, but apparently it does: Should you commit a crime, and wish to escape prosecution, don’t brag about your exploits on social media.

A man in Astoria, Oregon was arrested after he broadcast to the world about a little accident he had driving home early New Year’s Day.

Police were already investigating a hit-and-run that caused minor damage to two vehicles when they were tipped off that Jacob Cox-Brown, 18, had posted an update to his Facebook page:  ”Drivin drunk… classsic 😉 but to whoever’s vehicle i hit i am sorry. :P”

Sure enough, the cops matched the damage to Cox-Brown’s car to the two other vehicles and promptly arrested him on two counts of failing to perform the duties of a driver.

Luckily for Cox-Brown, admitting that he was drunk on Facebook wasn’t enough evidence for officers to actually charge him with DUI. In Oregon, a first DUI typically carries a year’s license suspension, between two days to a year in jail and a $1,000 fine, although a conviction can be avoided by entering a diversion program and completing drug and alcohol evaluation and treatment.

However, the hit-and-run charges could be more serious than a DUI would have been, if a judge chooses to be harsh: Leaving the scene of an accident that involved only property damage can bring a year in jail and up to $6,250 in fines.

New Years sans champagne next year, perhaps?

Dr. Martin Luther King Jr.: Still Dreaming After 50 Years

This year will mark the 50th anniversary of Dr. Martin Luther King, Jr.’s “I Have a Dream Speech.” Fifty years later this speech is still powerful and moving. It is the most famous speech from quite possibly the greatest speaker in American history. Tomorrow we will celebrate MLK Day across the country. While many people will simply view this as a day off of work, I want to make sure we don’t lose sight of what this man meant to our country. Unfortunately, there are still pockets of this country where racism is an issue, but we have sure come a long way…..and let’s hope will continue to move forward.

Below is the text of the final five minutes of the speech:

Go back to Mississippi, go back to Alabama, go back to South Carolina, go back to Georgia, go back to Louisiana, go back to the slums and ghettos of our northern cities, knowing that somehow this situation can and will be changed. Let us not wallow in the valley of despair.

I say to you today, my friends, so even though we face the difficulties of today and tomorrow, I still have a dream. It is a dream deeply rooted in the American dream.

I have a dream that one day this nation will rise up and live out the true meaning of its creed: “We hold these truths to be self-evident: that all men are created equal.”

I have a dream that one day on the red hills of Georgia the sons of former slaves and the sons of former slave owners will be able to sit down together at the table of brotherhood.

I have a dream that one day even the state of Mississippi, a state sweltering with the heat of injustice, sweltering with the heat of oppression, will be transformed into an oasis of freedom and justice.

I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.

I have a dream today.

I have a dream that one day, down in Alabama, with its vicious racists, with its governor having his lips dripping with the words of interposition and nullification; one day right there in Alabama, little black boys and black girls will be able to join hands with little white boys and white girls as sisters and brothers.

I have a dream today.

I have a dream that one day every valley shall be exalted, every hill and mountain shall be made low, the rough places will be made plain, and the crooked places will be made straight, and the glory of the Lord shall be revealed, and all flesh shall see it together.

This is our hope. This is the faith that I go back to the South with. With this faith we will be able to hew out of the mountain of despair a stone of hope. With this faith we will be able to transform the jangling discords of our nation into a beautiful symphony of brotherhood. With this faith we will be able to work together, to pray together, to struggle together, to go to jail together, to stand up for freedom together, knowing that we will be free one day.

This will be the day when all of God’s children will be able to sing with a new meaning, “My country, ’tis of thee, sweet land of liberty, of thee I sing. Land where my fathers died, land of the pilgrim’s pride, from every mountainside, let freedom ring.”

And if America is to be a great nation this must become true. So let freedom ring from the prodigious hilltops of New Hampshire. Let freedom ring from the mighty mountains of New York. Let freedom ring from the heightening Alleghenies of Pennsylvania!

Let freedom ring from the snowcapped Rockies of Colorado!

Let freedom ring from the curvaceous slopes of California!

But not only that; let freedom ring from Stone Mountain of Georgia!

Let freedom ring from Lookout Mountain of Tennessee!

Let freedom ring from every hill and molehill of Mississippi. From every mountainside, let freedom ring.

And when this happens, when we allow freedom to ring, when we let it ring from every village and every hamlet, from every state and every city, we will be able to speed up that day when all of God’s children, black men and white men, Jews and Gentiles, Protestants and Catholics, will be able to join hands and sing in the words of the old Negro spiritual, “Free at last! free at last! thank God Almighty, we are free at last!”

Here is a link to the video of the speech in its entirety: http://www.youtube.com/watch?v=smEqnnklfYs

When Do You Have To Allow An Officer To Search Your Home….Almost NEVER.

The following article was written by Larry M. Elkin, I came across it recently and found that it is a good reminder that unless an officer has a search warrant, you do not have to allow him to search your home or car. There are a couple exceptions to this rule, but it is always best to politely decline the request to search.

Why I Teach My Daughters to Deal with Police

Written by Larry M. Elkins, CPA, CFP from Scarsdale, NY

My wife and I taught our daughters how to tie their shoes, how to catch a ball, and, a little later, how to deal with the police.

Many people do not know how to handle an encounter with a police officer, and, as a result, end up inadvertently waiving their rights. When my daughters were in high school, there were several cases in nearby suburbs where police arrested teenagers and sometimes their parents because of underage drinking taking place within private homes. While I do not condone underage drinking, what truly puzzled me was why anyone would allow police officers into their home without a warrant.

In most situations, police must have either a warrant or an individual’s consent before they can enter a private residence. In situations where the expectation of privacy is lower, such as for a vehicle, police still must, at the very least, have probable cause or reasonable suspicion before conducting a search. However, all too often, people fail to realize when their consent is required and permit searches that they are not obliged to allow. This creates the possibility that police will discover something illegal or something that could be misconstrued as illegal.

I recently wrote about the case of Jerry Lemaine, the Haitian-born Long Island resident who is currently facing possible deportation after police discovered a single marijuana cigarette in his pocket. Lemaine came into contact with the police when he crashed into a parked car on his way home from a party. This situation provided no legal justification for the officer to explore the contents of the young man’s pockets.

According to the organization Flex Your Rights, which is dedicated to helping people stand up for their rights when dealing with the police, police may conduct a pat down of a person’s outer clothing only to check for weapons and only if they have reasonable suspicion to detain the person. They may reach into a person’s pockets only if they feel an object that is likely to be a weapon — not if they feel an object likely to be a joint. Lemaine should have refused to comply with the officer’s request that he reveal the contents of his pockets.

Many people mistakenly think that, if they have nothing to hide, they should consent to any search that a police officer wishes to conduct. But not having committed a crime is no guarantee that something in your possession will not be mistaken for something illegal. In January, two Bronx men were headed to a party when police asked to search their Ford minivan. Cesar Rodriguez, one of the two, told the New York Post, “I said ‘Go search.’ I even opened the door.”

What police found inside was a Hello Kitty sandwich bag of Coco Candy, which the newspaper describes as “a hard coconut-based treat.” What police thought they had found was crack cocaine. Rodriguez was held in jail for five days and the other man, Jose Pena, was held for three days. If Rodiguez and Pena had refused to allow police to look inside the van, the officers never would have had the opportunity to mistake the candy for cocaine.

One notable exception to the rule that you should always refuse to cooperate with unwarranted searches is the blood alcohol test. In most states, by driving a motor vehicle, you give implied consent to chemical testing. Penalties for refusing a breathalyzer can be steep, and, in some cases, refusing the test carries a greater sentence than taking the test and demonstrating an above-the-limit blood alcohol level.

But in nearly all other cases, the best course of action is to politely say no. This is the lesson that Flex Your Rights hopes to convey with its new short film, 10 Rules for Dealing With Police, and it is the lesson we taught our daughters.

One night when my wife and I were out of town, one of the girls had a few friends over. I don’t know if alcohol was present, but this group of friends is not a big drinking crowd. More likely they were cooking, baking and listening to music. A police officer knocked on the door, and my daughter stepped outside to meet him.

The officer said there had been a noise complaint — unlikely, since our house is not very close to any other houses and my daughter’s friends are not very loud. It is possible that a few people were talking and laughing in the backyard, but it is, in my opinion, more likely that the officer simply noticed teenagers coming and going and decided to investigate.

The officer asked my daughter if he could come inside. She replied, “I’m sorry, but my parents aren’t home and I’m not allowed to let you in the house.” The startled officer pulled out a notebook and asked, “Who are your parents?” My daughter gave him our names. He thereupon left, and we never heard anything further.

We came home to a peaceful, orderly house. There was no problem. There was no safety issue. I was proud that my daughter knew the correct, polite way to handle the situation, and glad I had played a role in preparing her.

I have nothing against police doing their job. But I am not going to permit random inspections of my house, my car or my person until the day comes when I can just drop by a police officer’s house and ask to look around. Our rights to privacy, and to only be searched when there is a reason to be searched, are important. Rights, however, are no good unless we exercise them.

So when someone in a uniform asks — or demands — to take an unwarranted look around your stuff, flex your rights. In doing so, you protect freedoms that are important for all of us.

Can We Learn Anything From the Sandusky Trial?

By now almost everyone is aware of the Jerry Sandusky trial. Even for those who tend to tune into ESPN instead of the evening news, there was no escape, thanks in large part to the role Penn State University and their football team played in the saga. To put this into context, the verdict was read at the same time as the NHL draft, less than 24 hours after the NBA crowned a new champion, and during the College World Series; however, the lead story on SportsCenter that night was the 45 individual guilty verdicts handed down by the jury. There is still a lot that we don’t know about the whole situation, and some things we will never know, such as what did the late Joe Paterno know about Sandusky’s actions. One thing we do know, barring a successful appeal by Sandusky’s legal team, is that Sandusky will die while in the custody of the Pennsylvania prison system. He is 68 years old and facing a minimum of 60 years of incarceration.

This story is far from over….there may be more victims out there who have yet to come forward (during the trial we found out that Sandusky’s foster son, who is now in his 30s, has said that he too was abused as a child); there will most likely be civil suits filed against Sandusky, Penn State, and school officials; and currently there are former school officials facing perjury charges stemming from the investigation.

Is there anything to learn form this case?

First, we know silence is what allows people like Sandusky to keep victimizing children. It’s almost like fuel on a wild fire. There are many reasons why victims of these types of crimes do not come forward (shame, fear, guilt, embarrassment, etc….), and we can not blame them for staying silent for so long. I spent over a year of my professional career prosecuting people like Sandusky, and unfortunately his story is not unique. Often these monsters prey on vulnerable children and make threats to keep them silent. It is important for victims to know they are not alone, which is one reason why once the story broke last November many victims broke their silence, realizing they were not the only ones who went through the nightmare.

Second, monsters like Sandusky can blend in with everyone else, its not always just the stereotype of a strange man driving a window-less van. A lot of times we find out that these criminals are the people who society trusts; in recent years there have been numerous stories involving teachers, coaches, and church members. In fact, on the same day and in the same state as the Sandusky verdict, a jury found Monsignor William Lynn guilty of Child Endangerment for his role in covering up alleged sex abuse in his church. A lesson to be learned by parents is to never let your guard down. This does not mean to be suspicious of everyone and accuse people of crimes, but to just remember that you never truly know who a person is and how they act behind closed doors. So, just always be alert. Talk to your children often and make sure they are comfortable talking to you.

Third, there are no witnesses. Sandusky, like most other sexual abusers, was calculated in what he did. Even though there was one incident were a young assistant coach happened to walk in and see something inappropriate, these people typically attack when they know there is no one around. This makes prosecuting these cases difficult, because ultimately it comes down to the victims’ testimony, which is often times years removed from the actual crime. Technology and the “CSI effect” give the jury the mistaken belief that there should always be some type of forensic evidence to prove what happened, which is another hurdle prosecutors face in trial.

Even though the victims and their families will never fully recover from their physical and emotional scars, hopefully knowing that other children are now safe from this monster can help them begin to move forward. At some point, this news story will fade away from national attention. At some point, Penn State University will get past the black cloud which is now placed over their campus. At some point, we may all forget about this trial. But always remember, at no point will the victims be completely whole again. Sandusky took away an innocence from each one of his victims that can not be returned. Remember, that for the victims, this nightmare will never truly be over.

 

One Less Shield for a Deadbeat Parent to Hide Behind

The federal government has made the decision to no longer send paper checks to individuals collecting federal benefits. So, now for everyone who receives social security payments, disability benefits, or veteran’s benefits, the money will be electronically transferred into their bank account. This plan will not go into place until March 2013, but when it does many “deadbeat” parents will find it harder to hide from their child support payment obligations. At the present time, one way many “deadbeats” are able to keep their federal benefits is by simply not depositing the check into their bank accounts. Now it will be much easier for the States to garnish a large percentage of these benefits before the “deadbeat” ever has access to the money.

The purpose of this change is to save the federal government money and they estimate that the cost to send the benefits will be reduced by 90 percent (or an estimated $1 billion over the next ten years). Whether or not the federal government intended to help parents who depend on child support payments, this is a welcome change. It is one of many changes in the last couple decades that empower parents who needs the support. “Deadbeats” can also have their wages garnished or even have their tax refund intercepted. There are many other ways to pressure “deadbeats” into paying their support obligations, such as suspending their driver’s license, professional license, placing liens on their property, denying a passport, or even being held in contempt of court and jailed. Also, under the Uniform Interstate Family Support Act, a “deadbeat” could possibly face federal criminal charges if they move out of state to avoid their child support obligation.

When it comes to child support, the large majority of parents pay their obligations and act like a parent. However, if just one “deadbeat” avoids supporting his (or her) own child, that is one too many. There will always be people who try to avoid their obligations, but hopefully this new decision by the federal government will help reduce the number of “deadbeats” out there.

 

Goldy’s Run

Welcome to my blog at LeoneLegal.com. I will be periodically blogging about legal issues  and updates in the law, and discussing how you may be affected. Also, I will blog about current events or other topics which are in the news. Today, however, I want to blog about Goldy’s Run, which is a 10 mile, 5K or Kid’s Run being held on the University of Minnesota’s campus next month.

Now you may be wondering why I’m blogging about a running event on a law firm website. Well, there are a couple reasons. First, and foremost, it is about who will benefit from the proceeds of this event. Being a father of two young children it is heartbreaking to see any child in need of medical care. However, it is good to know that there are hospitals, such as the Amplatz Children’s Hospital at the University of Minnesota. The proceeds from this race will help support the hospital in their groundbreaking research, surgeries, and treatments. It was Amplatz Children’s Hospital where the first successful pediatric blood marrow transplant was performed, as well as the first infant heart transplant in Minnesota.

It is also at Amplatz Children’s Hospital where a friend of our family has spent a lot of long hours recently. Her son underwent a succesful surgery when he was only four days old and I am happy to say that he is now on his road to recovery. The doctors, nurses, and staff perform miracles on a daily basis, so lets help support them with this wonderful event.

Now for the second reason why I’m writing about Goldy’s Run…..It’s a run through the University of Minnesota campus on a nice spring morning. Take advantage of the Minnesota weather and visit one of the best college campuses in the country. The event will be family friendly and the kids will love running in the Kid’s Run and meeting Goldy Gopher.

And finally, all the races end on the 50 yard line of the new TCF Bank Stadium and your picture will appear on the scoreboard as you cross the finish line.

Now for the information on Goldy’s Run:

Saturday, April 14 at 8:00 am.

The entry fees are $60 for the 10 mile, $35 for the 5K, and $10 for the Kid’s Run.

So bring the family out, help raise money for a great cause, and, most importantly, have some great fun.

For more information on the Amplatz Children’s Hospital you can visit their website at http://www.uofmchildrenshospital.org/index.htm.

For more information on Goldy’s Run you can visit http://www.goldysrun.com/page/show/272092-goldy-s-run-saturday-april-14.