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Not Guilty In Minnesota

“Answers To Minnesota Criminal Law Questions”

Category Archives: Criminal Defense

December 5, 2012 The Bad Kind of Jeopardy: Double Jeopardy Under Minnesota Law

Mankato Lawyer“Double jeopardy”:  obviously not just a segment of a TV quiz, but what does it really mean?  The concept comes from the Fifth Amendment of the Constitution, which promises that no one shall “be subject for the same offense to be twice put in jeopardy of life or limb.”  The essence is that the state can’t prosecute someone for a crime, and then, if the person is acquitted, simply try again with a new prosecution.

While that may be the most basic aspect of the double jeopardy prohibition, the concept has several different facets:  a prohibition on a second prosecution after conviction, a prohibition on a second prosecution after acquittal or certain types of mistrial, and multiple punishments for the same offense.

Many of the above situations are straightforward:  it’s not hard to determine whether someone has already been acquitted or convicted of a particular crime.  The more complicated issues arise when the person has been tried but a mistrial has resulted for one of any number of reasons.  Here, the reason for, and circumstances of, the mistrial will determine whether or not the person can be re-prosecuted for the offense.  The situations below are common instances where double jeopardy is at issue:

  • Jury becomes deadlocked and is unable to agree on a verdict:  retrial is permissible if mistrial was a manifest necessity
  • The defendant is convicted and appeals, and the appellate court reverses the conviction:  retrial is permissible unless the reversal was due to a finding that there was insufficient evidence to support the conviction or that the prosecution had otherwise failed to prove the defendant’s guilt

Multiple sentences

If a defendant is charged with multiple crimes arising out of the same incident and the crimes involve closely-related conduct, such as burglary and trespassing, the double jeopardy doctrine may prohibit him from being sentenced on both counts.  The test is whether each offense requires proof of something that the other does not; if this test is satisfied, sentences can be imposed for both crimes.

If you are convicted of two offenses and it would be a violation of the double jeopardy clause for the court to impose punishments for both those offenses (for example, because both crimes arose out of the same facts), the court will merge one conviction into the other and sentence you only once on the newly-merged charge.

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November 7, 2012 Get out of jail free? Parole / Supervised Release in Minnesota

Compared to a jail or prison sentence, parole (also called supervised release in Minnesota) sounds pretty good.  However, parole is not the same as a pardon in that it does not fully discharge a convicted defendant from his sentence.  Instead, parole is a method for disciplinary treatment of prisoners capable of rehabilitation outside of prison, allowing the convicted defendant to be released and live and work outside of prison pursuant to certain conditions.

In some circumstances, parole is the default assumption.  If a sentence of more than five years, but not a life sentence, has been imposed on a defendant for a crime authorizing a sentence of not more than ten years, the commissioner of corrections is required to grant parole no later than the expiration of five years of imprisonment.  This is further reduced by the time granted for good behavior.  However, if the Commissioner of Corrections determines that the defendant’s parole would not be conducive to rehabilitation or would not be in the public interest, there is no requirement to grant parole.  Additionally, this provision does not apply to persons convicted of a third violent felony.

“Not in the public interest” can be a broad term.  For example, Dennis Kozlowski, the former CEO of Tyco International who was convicted of larceny and multiple financial crimes in 2005, sounded like a sure candidate for release:  no violent background, no disciplinary infractions while in prison, completion of various prison educational programs, and successful participation in a work release scheme.  However, the New York State Parole Board recently denied parole to Kozlowski, finding that release would not be compatible with the welfare of society at large, and would tend to deprecate the seriousness of the instant offense.

Because Minnesota doesn’t have a parole board, the procedure here is slightly different from that in New York.  When an offender receives a prison sentence, the sentence pronounced by the court consists of two parts: a term of imprisonment and a term of supervised release.  The prison sentence will be two-thirds of the total term, and the supervised release will be the remaining one-third.  However, the amount of time the offender actually serves in prison may be extended by the Commissioner of Corrections for violation of disciplinary rules or other prison infractions.

What parole does not do is set aside or affect the sentence you received; you remain in legal custody of the state, under control of its agents.  The state can undertake random drug testing and searches and may impose a variety of other conditions, including restrictions on travel and leaving the state.  There is also the constant specter of revocation; revocation of parole is a complicated topic in its own right, but as a general proposition, revocation stems from a violation of a parole condition.

October 4, 2012 The Minnesota Burglary Law

Minnesota Burglary Law:

Can you burgle your own home?

An interesting case came up in Washington, D.C. recently.  A man was convicted of first-degree burglary; nothing particularly unusual in and of itself.  However, in a slightly odd twist, the home that was the subject of the burglary was the home in which the man was living at the time of the incident!  The target of the burglary was apparently the man’s roommate, who had allegedly fallen afoul of local drug dealers.  The government’s theory was that the defendant had helped the drug dealers carry out their burglary by telling them that the roommate didn’t lock his door and by acquiescing to the burglary.  This led the appellate court in Washington, D.C. to ponder the question:  can you be convicted of burgling your own home?

In D.C., the answer to this question turned out to be yes, in certain circumstances.  The court decided to accept the idea that you could be convicted of burglary in that situation under an aiding and abetting theory—meaning, you helped someone else commit a burglary of the home—if the crime intended to be committed in the home, which formed the reason for the burglary, infringed upon the peaceful use and occupancy of a co-dweller of that home.

This issue could also arise in Minnesota, because under Minnesota law, one element of the offense of burglary is that the defendant entered a building without consent.  “Entering a building without consent” is defined as entering a building without the consent of the person in lawful possession.  So, the problem is, if a roommate or co-owner claims to have lawful possession of the home, can they be convicted of burglarizing it, since the law allows them to give consent to entry?

A 2009 Minnesota Supreme Court case considered this issue in part.  It found that a co-owner could divest himself of lawful possession of a piece of property and thereby become capable of burglarizing it.  Divesting oneself of lawful possession of property could happen in various ways:  one spouse moves out of the marital home after the couple separates, or one co-owner enters into a contract with a second co-owner to allow the second co-owner to live alone in the property.  In those situations, then, the key issue is whether the burglary defendant gave up the legal right to possess the property.

The Minnesota court apparently accepted the idea that you can’t burgle your own home if you are in fact in lawful possession of it, but that issue was never argued.  However, the D.C. court’s decision, focusing on the potential threat to peaceful use and occupancy of the co-dweller of the home, would fit with Minnesota’s interpretation of burglary as being not solely an offense against property but rather one that creates a special danger to human life, and its conclusion that in some circumstances, burglary should be considered a “person offense” rather than a “property offense.”

Rosengren Kohlmeyer, Law Office Chtd.
Mankato, Minnesota
507-625-5000
www.RoKoLaw.com

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August 29, 2012 Forfeiting Cars And Property In Minnesota

Minnesota Civil Forfeitures

When you think of punishments the government can hand out for violations of a law, you probably think of jail time and/or fines.  Although these are obviously major

Police tape

Do Not Cross…

contenders in the punishment world, there is a third type of sanction the government can impose:  forfeiture.   Forfeiture essentially involves the government taking possession of property that has a connection to illegal activity.  Forfeiture comes in two varieties, criminal and civil.  Criminal forfeiture is fairly easy to understand and doesn’t need much in the way of explanation; for example, if the police lawfully search your house and find goods that are dangerous or that are intended for use in a felony, those goods can be seized.

Civil forfeiture, on the other hand, is slightly more complicated.   It also involves government seizure of property connected to illegal activity, such as the confiscation of a motorcycle owned by a driver who was convicted of driving while intoxicated (DWI), or the taking of a house in which drugs were found .

How does this happen??

Instead of happening in the course of a criminal proceeding against a person, the forfeiture happens via a civil lawsuit which is, oddly enough, brought against the property itself (hence a plethora of unusual case names like “Hawes v. 1997 Jeep Wrangler”).  The idea is that civil forfeiture is not a punishment as such but rather a tool used to confiscate property used illegally, compensate the government for its time spent prosecuting and punishing criminal behavior, and discourage illegal conduct.

In a state civil forfeiture proceeding, the government derives its authority from a state statute providing for the forfeiture of the item.  For example, Minnesota state law provides for the forfeiture of property associated with controlled substances.  This is a fairly wide-ranging law that allows for the confiscation of all property “that has been used, or is intended for use, or has in any way facilitated, in whole or in part, the manufacturing, compounding, processing, delivering, importing, cultivating, exporting, transporting, or exchanging of contraband or a [illegal] controlled substance.”  That’s a pretty exhaustive list!  Minnesota also has a similar law for the forfeiture of vehicles involved in DWI incidents.

Double Jeopardy concerns

If you have already been convicted of a crime and your property is subsequently taken in a civil forfeiture proceeding, does this violate the double jeopardy clause of the federal constitution, which prohibits the government from punishing a person twice for the same offense?  In general, courts have found that it does not, though obviously it’s likely that a person who loses property through a civil forfeiture proceeding would disagree.  The idea behind the courts’ reasoning is that civil forfeitures serve primarily non-punitive goals and thus are not actually “punishment.”  However, in some limited circumstances, it can be argued that a civil forfeiture statute is punitive in nature and that therefore a civil forfeiture proceeding undertaken after a criminal prosecution violates double jeopardy.  If you think you may be in such a situation, we recommend discussing your case with an experienced lawyer.

Thanks for reading and if you have any questions or comments please feel free to email or call me at Thagen@rokolaw.com or 507-625-5000

Thomas Hagen
Rosengren Kohlmeyer, Law Office
Mankato, Minnesota MN 56001
507-625-5000
www.RokoLaw.com

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August 23, 2012 Mankato’s Latest Brush With Fame – The Todd Hoffner Child Porn Case

The Mankato Child Porn Case

Mankato has made national news yet again, but not for the greatest reason, Minnesota State University-Mankato’s head football coach, Todd Hoffner, has been arrested and charged with  multiple counts of using minors in a sexual performance and possession of child pornography. (As an aside it looked like Coach Hoffner was doing a great job with

Mankato Child Porn Case

Coach Hoffner

the MSU football team, playoff appearances and a great record!)

These are very serious charges and with the current public opinion of Penn State and football coaches, now is not the time to be charged with these crimes (as if there ever is a good time!). It appears that Jim Fleming is representing Mr. Hoffner. Mr. Fleming is an excellent defense attorney and it looks like he might have a very good case defending Mr. Hoffner. Why do I say it might be a good case for the Defense?  Good question, let me lay out the reasons below:

  1. Bail was set at $10,000. This is usually a good indicator of how serious the charges are (and if the state has the evidence they need for a conviction). To put it in context, when former Minnesota State Bar Association President-Elect Aaron Biber was charged with criminal sexual conduct with a minor, he had a Million dollars bail put on him. To put it another way, the mandatory bail for a second time DWI in Minnesota is…$12,000. This sends a message that perhaps this isn’t quite the case the prosecution thinks it is. (It should be noted that the presiding Judge was Judge Harrelson, a great visiting Judge who often gives defendants the benefit of the doubt on bail issues).
  2. The videos could be harmless. Now, I haven’t seen the videos, but reading the Mankato Free Press article it seems as if the videos could truly be harmless. They are pictures/videos his children doing, arguably, what young children, that is running around and acting silly, sometimes naked. If that is the case, from the way the Free Press wrote the article, it sounds like the prosecution may have a tough case.
  3. It appears there are no other videos/pictures. I have defended a lot of child pornography cases in my career, and while every case is different, what I see a lot is that purveyors of child porn don’t just have one or two videos…they have one or two THOUSAND. People who are “into” child porn tend to be collectors and I can say that it’s pretty rare when there are only a few pictures or videos in a child porn case. This will be argued to the jury, and will help the defense.
  4. No other “victims”. I use the term victim without any judgment as to innocence or guilt, it’s just how we describe the kids in this case as “victims”. The worst thing for the defense would be if some other children come forward with similar claims. It’s one thing to take videos of your own children, it’s another to take videos of the neighbor kids.

All said and done, with what I know today, it looks like the Blue Earth County Attorney’s office has its work cut out for them to show that Mr. Hoffner is guilty beyond a reasonable doubt. I’ll keep doing analysis as more facts about the case come out.

Local legal analysis provided by Jason Kohlmeyer, of Rosengren Kohlmeyer, Law Office, Mankato Minnesota 507-625-5000. www.Rokolaw.com

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