News Cut Category Archive: Crime and Justice

The secret end of the Todd Hoffner affair

Posted at 12:21 PM on May 8, 2013 by Bob Collins (7 Comments)
Filed under: Crime and Justice

Todd Hoffner, the football coach at University of Mankato Minnesota is out of a job, the Star Tribune reports today.

Not surprisingly, there isn't a prayer that you're ever going to find out why. This paragraph is becoming journalistic boilerplate in stories involving schools in Minnesota.

Benson, citing privacy laws, declined to elaborate on the reasons Hoffner was no longer employed by the school, saying only that it was a private, personnel matter.

He also declined to say whether Hoffner was dismissed or resigned. He said the former coach was removed from the payroll Tuesday.

Hoffner, you may recall, was charged with possessing child pornography because he took pictures of his children after a shower, according to an MPR story at the time:

Hoffner testified, "The children came down into the living room with towels on and asked me to videotape them."

He said the children, all under the age of 9 years, were "singing, dancing, and laughing" in the videos. He said he didn't think there was anything inappropriate with recording them, and he didn't view the videos again. Hoffner made the videos using his university-issued cell phone on June 26, 2012.

"There's nothing inappropriate in any of those videos," Hoffner said.

And, it turned out, there wasn't.

The judge tossed out the charges.

"It is private, family speech of a most uniquely personal kind which the state can neither inhibit nor sanction," Judge Krista Jass said.

But, stained with "child pornography" charges, Hoffner lost his football coaching job anyway. He was "reassigned," and few people thought Hoffner would be at the university much longer.

He'd already been suspended for apparently using the university-issued cellphone to take the pictures.

A school spokesman told the Mankato Free Press that two investigations were conducted by the school authorities against Hoffman. What kind of investigations? Can't say. What did the investigations conclude? Can't say.

Hoffner asked the judge in the case to seal all the files so none of this will ever see the light of day. She did that on Friday, the Free Press reported

Gun violence: It may not be what you think

Posted at 1:51 PM on May 7, 2013 by Bob Collins (10 Comments)
Filed under: Crime and Justice

You couldn't tell it by the vigor of the public debate but the rate of homicides with guns in the United States has dropped rather dramatically from the '90s, an analysis of government data shows today.

The Pew Research Center study shows the homicide rate has been cut in half from the early '90s, but there's a big caveat: Most of the decline took place in the '90s.

Compared with 1993, the peak of U.S. gun homicides, the firearm homicide rate was 49% lower in 2010, and there were fewer deaths, even though the nation's population grew. The victimization rate for other violent crimes with a firearm--assaults, robberies and sex crimes--was 75% lower in 2011 than in 1993. Violent non-fatal crime victimization overall (with or without a firearm) also is down markedly (72%) over two decades.

Nearly all the decline in the firearm homicide rate took place in the 1990s; the downward trend stopped in 2001 and resumed slowly in 2007. The victimization rate for other gun crimes plunged in the 1990s, then declined more slowly from 2000 to 2008. The rate appears to be higher in 2011 compared with 2008, but the increase is not statistically significant. Violent non-fatal crime victimization overall also dropped in the 1990s before declining more slowly from 2000 to 2010, then ticked up in 2011

Despite the reality, 56 percent of those surveyed think that gun homicides are up.

What's responsible for the drop? The outsized post-World War II baby boom, which produced a large number of people in the high-crime ages of 15 to 20 in the 1960s and 1970s, helped drive crime up in those years, Pew says.

One other surprising statistic: The rate of suicides with guns is higher than the rate of homicides by gun.

Don't wait for the news coverage to be adjusted accordingly on that one.

Court: State may strip driver's license of people delinquent on child support

Posted at 12:02 PM on May 6, 2013 by Bob Collins (6 Comments)
Filed under: Crime and Justice

The Minnesota Court of Appeals has overturned a District Court ruling that suspending driver's licenses of people who don't pay child support is unconstitutional.

The court ruled today in the case of Bruce Buchmann, a Swift County man, who claimed he can't get a job driving a truck because his commercial license was suspended. At the time, he was more than $27,000 in arrears, and hasn't made any of the $200-a-month child-support payments since 2009.

He has had his license suspended and made agreements to pay the support several times, but each time he balked at paying for the children.

Last summer, a District Court declared the state statute prohibiting the issuing of a limited commercial driver's license unconstitutional, calling it "wholly irrational." The court also said the law's effect on people in rural Minnesota is considerably more harmful than for those in urban areas because there are fewer employers and public transportation is rarely available.

Today, the Court of Appeals rejected both points.

"The United States Supreme Court has never held that the right to pursue a particular profession, such as commercial truck driving, is a fundamental right," Judge John Rodenberg wrote. "The statute provides a rational connection between the prohibition on limited commercial driver's licenses and the public's interest in having respondent support his children's well-being through child support payments."

Under the statute, officials can suspend a driver's license of anyone who is three months behind in child-support payments.

The three-judge panel also rejected the claim that the statute unfairly targets people in rural Minnesota.

An urban obligor who lives very near a bus line may experience less impact upon suspension of his or her driver's license than one who lives remotely from a bus line. A rural obligor who lives with or near family may have an easier time arranging a ride to work than one who lives remotely from family. Some rural Minnesotans probably have less difficulty arranging for transportation in the absence of a driver's license than some urbanites. Once subject to license suspension under the statute, a rural obligor has the same options for license reinstatement as an urban obligor.

Here's the full decision.

You are Editor: Which picture?

Posted at 11:12 AM on April 26, 2013 by Bob Collins (15 Comments)
Filed under: Crime and Justice, Media

There was a somewhat interesting difference in the coverage of Byron David Smith yesterday, the man who allegedly shot and killed two teenagers who broke into his home last Thanksgiving.

Every picture tells a story. Apparently his attorneys are well aware of that.

This is the picture that mostly accompanied previous stories about Smith, who was indicted on first-degree murder charges this week.

It's the mugshot from the Morrison County sheriff's office. It's not flattering, as mugshots seldom are.

But something changed this week. This is the photo that accompanied many stories.

The picture was distributed by Meshbesher & Associates, Smith's attorneys.

The two pictures presented a dilemma for news organizations.

MPR and the Star Tribune went with the new one. The Associated Press went with the old one. The Pioneer Press went with the old one, in addition to images of the deceased.

You are editor: Which picture do you use?

In praise of the public defender

Posted at 12:30 PM on April 23, 2013 by Bob Collins (2 Comments)
Filed under: Crime and Justice

This line in the Associated Press story about the man accused as the Boston Marathon bomber is worth considering in some detail today.

Federal public defender Miriam Conrad, whose office has been asked to represent Tsarnaev, asked that two death penalty lawyers be appointed to represent Tsarnaev, "given the magnitude of this case."

How bad must it be to be the person representing arguably the most hated man in America? And how do you go about convincing someone else to join the team?

I thought back many years ago to a small town in eastern New York where a young man, who had massacred his family, was acquitted at trial. "How," the defender was asked, "could you represent a guilty person?" His answer provided me with a respect for defense attorneys I hold to this day.

"I never asked him if he was guilty," he said.

Because it didn't matter. His job was to be sure justice turned in a fair way, not to hold the horse at a lynching.

If anything, the case could bring a new spotlight on an important and underappreciated segment of the justice system -- the public defender.

Elie Mystal at Above the Law notes the qualifications of the two public defenders in the case of Dzhokhar Tsarnaev -- one a graduate of Harvard, the other from Yale.

"I love a country where public enemy number one gets an Ivy-covered defense before he's thrown in jail for the rest of his life," Mystal says.

I love the federal public defenders and you should too. Their work is the last bulwark preserving the thin line between "fair trial" and "show trial." They defend those who are presumed to be guilty, and those who are guilty. They defend the undeserving. It's dirty work, and they are not compensated nearly well enough for it.

But, like a sewer systems operator, if they don't do their job then the whole system gets backed up with our own waste. No matter how pure or righteous our prosecutorial intentions might be, prosecution creates the nasty, smelly byproduct of zealotry. Federal public defenders stand against that. They protect all of our rights by defending their clients.

Damned if I'd want to do it. I'm happy to have bourgeois conversations about the importance of presumption of innocence, but if you actually put me in a room with somebody like Tsarnaev I'd be like, "Eww, gross, can we put him in the Hannibal Lecter mask or something?"

Just days before the bombing, Ms. Conrad put up a fight against cuts to public defenders in the federal "sequester" scheme.

"We are simply not going to be available on certain days," she told the Boston Globe. "We can't start cutting things that affect our ability to provide representation for our clients."

" Let's hope those days include Tsarnaev's trial dates," a commenter wrote on a Wall St. Journal story about the her.

Because some people don't really completely understand what makes this country so unique.

From the archive: A day in the life of a public defender

The criminal complaint against Dzhokhar Tsarnaev

Posted at 1:11 PM on April 22, 2013 by Bob Collins (2 Comments)
Filed under: Crime and Justice

As good as some of the reporting over the weekend of the events during the Boston Marathon investigation was, nothing can be as riveting as the complaint lodged against the man arrested and now charged.

Criminal Complaint 1304211847

Freedom is messy and ugly

Posted at 8:57 AM on April 20, 2013 by Bob Collins (11 Comments)
Filed under: Crime and Justice

This is a piece I wrote this week that, for the most part, went unnoticed. It was written with the anticipation that once the people responsible for the Boston marathon bombing were captured, there would be a cancerous call to remove them from the justice system as outlined in our Constitution. We love the Constitution,of course, but we're often afraid of it.

Sen. Lindsey Graham took to Twitter last evening to declare that the suspect in the bombings should be treated as an "enemy combatant," with no constitutional protection. There is, you may have noticed, nothing in the 4th Amendment about this, just as there is nothing in, say, the 2nd Amendment about background checks.

This isn't a conversation about background checks, though; it's about our national tendency to treat the Constitution as a cafeteria, choosing the rights we like while ignoring the ones that are inconvenient.

We can talk about not allowing terrorists to destroy or damage our way of life. But every word in the Constitution is our way of life.

Anyway, here's the post I wrote in the middle of the week.

4/18/13 11:09 a.m.

I have written often over the years about the power of the U.S. Constitution, which comes exclusively from our willingness to extend its tenets to the most vile, despicable people on earth, or simply to the person next door whose political views we abhor.

It's easier to talk in patriotic terms than it is to act in a patriotic way. It is easier to swear allegiance to one, favorite article of the Constitution than it is to swear allegiance to all of them.

Freedom is messy and does not well lend itself to bumper sticker slogans. We can sing about it, we can carry signs about it, we can hold our hands over our hearts for it. We just can't agree on it. The coverage surrounding several different -- some unrelated -- news events of the week are converging on this fact.

Esquire's Charles Pierce, it's safe to say, is not a fan of what happened in the U.S. Senate yesterday, where opponents of expanded gun background checks held sway. In his piece today -- The Violence We Live With -- he decries the fact mayhem and slaughter go hand-in-hand with freedom in our society.

Make no mistake. That is what was determined down there this week among the bright, white buildings. There is a barbarism in the American soul and we must protect some of it by law. To root it out is to endanger our lives on the one hand, and our liberty on the other. We must tolerate the barbarism of the black sites to stay alive, and we must tolerate the occasional mass shooting in order to maintain our liberty. We will find the barbarian who killed and maimed the people along Boylston Street in Boston because his barbarism was not sanctioned, nor was it sanctified by law. That is the simple basic equation of where we are right now.

Gabrielle Giffords was told this. The families of the children of Newtown were told this. The 91 percent of the American people who want something that they now have no hope of getting were told this, The president of the United States, fairly shaking with impotent anger in the Rose Garden, was told this. We are a violent people. We are an armed people. We are a people intent on permitting mayhem and slaughter. We are a people intent on providing the means for mayhem and slaughter. And because of all of this, we are a free people. It is an odd day to be looking down at Our Nation's Capital, where barbarism has become so tailored and manicured, and so utterly unremarkable. We might as well speak honestly about it. We might as well speak about it here.

This week, the New York Post -- owned by arguably the most powerful and influential person in mass media -- has continued a steady drumbeat of inept, inaccurate, unethical, and scurrilous journalism. It indicted a Saudi man who had nothing to do with Monday's bombing in Boston, feeling no shame in abusing the freedom it had to do so.

Today, for example, it zeroed in on two men in the crowd in Boston.

"Those are not the pictures that are going to be released today by the authorities," CBS' John Miller, a former FBI insider, said.

And yet, we are required to acknowledge -- if not cheer -- the Post's right to be so consistently inciteful, inept, and insulting to our sensibilities.

At some point -- maybe today, maybe not -- a suspect in Monday's bombings will be arrested and we will, again, come face to face with the conflict between the freedom we love and our visceral side, as evidenced by other Rupert Murdoch employees, who called for him/her/them to be sent away without trial.

That, Elie Mystal suggests in an Above the Law column today, is a fundamental ignorance of freedom and rights we claim to cherish.

Look, it seems to me that if and when they arrest the guy (or guys, or gals) the police will have three options:

1. Shoot him to death.
2. Beat the piss out of him.
3. Interrogate him.

I'd like to think that there is broad consensus that options one and two are potentially satisfying, but ultimately antagonistic to justice in a civilized society.

The police are going to interrogate him. And they're going to do so in a way that they hope finds his accomplices and establishes his motives all in a way that will hold up in a court of law.

In that context, why wouldn't they read him his rights? Are they afraid it will take too long? Remember, the Miranda rights are there to help law enforcement so that later criminals can't claim that they were denied the protections of the the Fifth Amendment. They are a prophylactic for the cops so they don't have to confirm that people truly understand their constitutional protections.

Why would these people on Fox argue that the cops should risk losing a good arrest on self-incrimination grounds when it is so simple for police to just read the guy his rights?

See, I think what the anti-Miranda people really want is for people to not know their rights... because they think if he knows his rights, he might call a lawyer, and somehow that'll just mess everything up.

You see, there is a world of people out there who think every criminal defense lawyer is Saul Goodman, a criminal who happens to be a lawyer and thinks that his job is to help criminals evade justice. In fact, good defense lawyers allow justice to proceed. Why do we even have a right against self-incrimination? It's so people cannot be bullied into confessing to crimes they didn't commit, or worse, confessing to facts that didn't happen.

Freedom can be incomprehensible and infuriating. Long may it live.

NBA ref Mauer loses tax fight in Minnesota

Posted at 11:05 AM on April 17, 2013 by Bob Collins (0 Comments)
Filed under: Crime and Justice

(AP file photo)

The Minnesota Supreme Court has ended a fight between an NBA referee and the state over whether he's a Minnesota or Florida resident.

Ken Mauer, a Saint Paul native, didn't file tax returns in 2003 and 2004, claiming he was a full-time Florida resident. Florida residents pay no state income tax. Minnesota tax officials insisted he was a Minnesota resident, because he built and lived in a home in Afton until 2003.

He didn't have much choice. Mauer had been swept up in the IRS' "Operation Slam Dunk," in which NBA referees were charged with evading taxes through the use of airline ticket refund policies. He was sentenced to prison, and eventually was sentenced to home confinement at the Afton home, which ended at the end of June 2003.

The next day, he flew to Florida and bought a townhome.

The court opinion today says Mauer's NBA pay was deposited into a Minnesota bank, and he made his own travel arrangements as a referee, flying in and out of Minnesota.

During the 2003-04 NBA season, the NBA expressed concern about Mauer's travel arrangements. The NBA gave Mauer a block travel stipend to cover his travel expenses and calculated that stipend based on Mauer having designated Fort Myers as his home airport. But the NBA learned that Mauer was, in fact, traveling in and out of Minneapolis-Saint Paul rather than Fort Myers, and believed that Mauer was being over-reimbursed for his travel. In January 2004, the NBA notified Mauer that it would not pay Mauer's requested January 11, 2004 travel stipend because Mauer was staying in Minnesota and was not actually traveling in and out of Fort Myers. The NBA and Mauer exchanged a series of contentious letters on the issue of whether Mauer was accurately reporting his travel locations, including a letter in which the NBA threatened Mauer with sanctions, up to and including termination of his employment as an NBA referee. Eventually, Mauer hired a travel agent who prepared a one-page handwritten travel cost summary showing that Mauer's designation of Fort Myers as his home airport cost the NBA $65,193.54, whereas a designation of Minnesota would have cost the NBA $66,806.49--an alleged savings to the NBA of $1,612.95. Following the receipt of this summary, the NBA relented on its internal inquiry into Mauer's travel expenses.

The court says Mauer put the Afton home up for sale for $3.1 million, but no "for sale" sign was put on the property, and it wasn't listed in the Multiple Listing Service.

The Minnesota Department of Revenue ruled he remained a Minnesota resident for tax purposes because he didn't prove he had actually taken up residence in Florida for more than half the year. Mauer says buying a home in Florida, registering to vote there, and basing a car there, and disputing his residence with the NBA shows he was a Florida resident.

No he wasn't, the Minnesota Supreme Court said today. It said he didn't make a "good faith" effort to sell his Afton home, two cars stayed here, and his most active checking accounts were Minnesota banks.

We conclude that Mauer's assertion about his distaste for Minnesota and its cold weather is undermined by the fact that, during the disputed time frame, Mauer continued to spend significant time in Minnesota, including time he spent in Minnesota during some of the coldest months of the year. During the 2003-04 winter season, except for a New Year's "vacation" to Fort Myers and an early March trip to Florida, Mauer scarcely spent more than a night or two at a time in Florida--while he routinely returned to Minnesota for four, five, or even six nights at a time.

There is little doubt that Mauer established a motive to become domiciled in Florida; but, while motive and intent are often confused and used synonymously in ordinary speech, motive and intent are different.

Here, Mauer did not sell his Afton home--nor does it appear as though he made a good-faith effort to sell it; he continued to spend significantly more time in Minnesota than in Florida, including considerable time during the winter season despite asserting that he wanted to avoid Minnesota in the winter; he kept and insured several motor vehicles in Minnesota; and he maintained employment in Minnesota by refereeing high school football games. When considering the foregoing facts, we conclude that Mauer's acts, as opposed to his declarations, weigh in favor of the presumption that Mauer's domicile remained in Minnesota. Taken together, these facts provide more than sufficient support for the tax court's determination that Mauer remained domiciled here. In other words, when Mauer's intentions are measured by his actual behavior, they do not match his possible motive or stated intentions to establish his domicile in Florida.

In a dissent, however, Supreme Court Justice G. Barry Anderson said Mauer's actions clearly indicate he wanted out of Minnesota for most of the year:

Mauer was engaged in a long-running, and noisy, argument with his employer about his decision to live in Florida. In fact, the issue escalated to threats from the NBA to fine Mauer, suspend Mauer, or even terminate Mauer's employment, yet he continued to insist that he was domiciled in Florida, not Minnesota, notwithstanding the potential employment-related consequences.

I agree with the majority that actions matter, and Mauer's actions here in moving to Florida immediately after home confinement and his willingness to do battle with his employer on the residence issue lead me to "a definite and firm conviction that a mistake has been committed" by the tax court in rejecting Mauer's change-of-domicile claim. I would reverse the tax court for these two reasons alone.

Here's the full decision.

By the way, some sports fans may remember Mauer for this classic moment in Minnesota sports history.

Court: No right to notice before suspension of driving privileges

Posted at 11:02 AM on April 15, 2013 by Bob Collins (2 Comments)
Filed under: Crime and Justice

Three people arrested for DWI in separate incidents in Minnesota have lost their claim that they didn't get proper notice before their driving privileges were revoked.

The Minnesota Court of Appeals today reversed a lower court ruling that because the letter from the Department of Public Safety arrived at their homes six days before the date their privileges would be revoked, their driver's licenses should not be revoked.

In each case, the letters were mailed 10 days before the licenses were to be revoked.

Some people who get their licenses immediately revoked for DWI are eligible for a seven-day temporary license, but the Court of Appeals noted there's no such provision for people who voluntarily submitted to field sobriety tests, as these three did.

It is true that a licensee who refuses a peace officer's demand to submit to a
chemical test, or who submits to a test the results of which immediately indicate an alcohol concentration of 0.08 or more, is subject to immediate revocation of his driver's license and the issuance of a temporary, seven-day license by the peace officer. Minn. Stat. § 169A.52, subd. 7. But respondents were not facing immediate revocation. Instead, they submitted to fluid testing and waited weeks or months for a revocation notice to come in the mail from the commissioner. A notice of revocation mailed by the commissioner is deemed received three days after being mailed.

The Court of Appeals noted today's ruling only states that there is no right of a seven-day notice in license suspensions, and invited the Minnesota Supreme Court to consider how much notice people should receive when losing driving privileges.

Full opinion here.

Court lowers the boom on the 'boom, boom boom'

Posted at 1:02 PM on April 8, 2013 by Bob Collins (1 Comments)
Filed under: Crime and Justice

The Minnesota Court of Appeals today provided a "win" to ear drums, ruling that a Minneapolis law regulating car speaker music is not unconstitutionally vague.

The court ruled in the case of Marlin McElroy, who was cited by a Minnepaolis police officer, who said he could hear the "music" or "loud bass sound" coming from McElroy's car from more than 150 feet away. He told McElroy to turn the speakers down; he didn't, and drove away.

The police officer caught up to him at a stop sign and ticketed him under the noise ordinance which prohibits "the operation of any electronic device used for the amplification of music or other entertainment, which is located within a motor vehicle being operated on a public street or alley, or in commercial or residential parking facilities, which is audible by any person from a distance of fifty (50) feet or more from the vehicle."

McElroy's attorney argues that the ordinance is vague because there was only one listener -- the police officer -- and that no one standing on the street testified the music was audible. But the ordinance only requires that it be audible by any person.

Minnesota Court of Appeals Judge Renee L. Worke said the ordinance is not overly broad because it doesn't ban the amplification of music, it only limits its volume. "Thus, the appellant's enjoyment of music or entertainment is not prohibited. Further, the government has a legitimate interest in controlling the noise level on streets... limiting the amplification of sound protects the peace and quiet of other persons also using the sidewalks and streets."

SCOTUS DOMA audio

Posted at 2:06 PM on March 27, 2013 by Bob Collins (1 Comments)
Filed under: Crime and Justice

Here is the audio of today's Supreme Court arguments over the federal Defense of Marriage Act.

The statute, which restricts benefits to people in opposite-sex marriages, is "in trouble," according to Lyle Denniston at SCOTUSblog.

Justice Kennedy told Clement that there was "a real risk" that DOMA would interfere with the traditional authority of states to regulate marriage. Kennedy also seemed troubled about the sweeping breadth of DOMA's Section 3, noting that its ban on benefits to already married same-sex couples under 1,100 laws and programs would mean that the federal government was "intertwined with citizens' daily lives." He questioned Congress's very authority to pass such a broad law.

Moreover, Kennedy questioned Clement's most basic argument -- that Congress was only reaching for uniformity, so that federal agencies would not have to sort out who was or was not married legally in deciding who could qualify for federal marital benefits, because some states were on the verge of recognizing same-sex marriage.

Along with sharply negative comments about DOMA by the Court's four more liberal members, Kennedy's stance could put the law on the edge of constitutional extinction. But, if the Court were to do that based on states' rights premises, the final ruling might not say much at all about whether same-sex couples were any closer to gaining an equal right to marry under the Constitution.

MN Supreme Court: Foster parents can adopt children even if relatives are able

Posted at 12:10 PM on March 27, 2013 by Bob Collins (14 Comments)
Filed under: Crime and Justice

A sharply divided Minnesota Supreme Court today ruled that two young African American girls, born to apparent drug addicts, can be adopted by their white foster parents rather than their grandparents, despite a state law that appears to favor adoption by family members over others.

The decision appeared to hinge on one word in the law: consider.

The two girls both tested positive for cocaine upon birth and have had developmental problems since. They were removed from the home almost immediately by Hennepin County and put in the care of foster parents.

Later, the foster parents agreed to adopt the girls after the grandparents initially expressed interest in the adoption, but didn't cooperate with an in-home placement study in Mississippi. After some delay, they relented, the study was turned in, and the two competing adoption petitions went before a district court, which ruled adoption by the foster parents was in the best interest of the girls. The court said given their special needs, there could be damage by removing the girls from the only home they ever knew.

But the grandparents appealed, saying state law favors relatives over "an important friend with whom the child has resided or had significant compact." They said the district court should have ruled they were fit to adopt, and the process should have stopped there.

But in her opinion today, Justice Lori Gildea disagreed, saying the law only requires courts to consider the adoption petition of a relative first and then the foster parents. But it does not prefer a relative over a non-relative.

"It is true that the district court did not analyze the grandparents' petition in its entirety before turning to analyze the foster parents' petition," Justice Gildea wrote. "The court also did not expressly conclude in its order that it was not in the girls' best interests to be adopted by their grandparents, which would be the better practice. But the court did consider and then form a conclusion about the grandparents' petition with respect to each factor before considering the foster parents' petition on that factor."

But the grandparents are African American while the foster parents are white and the issue of tending to the "cultural needs" of adoptive children has been controversial in Minnesota and elsewhere, even though state law requires cultural needs be considered.

"The foster parents have adopted two sons who are Asian-American and African-American respectively, and an African-American friend lives with the family," Justice Gildea said in rejecting the argument. "The district court did not specifically explain how the foster parents were able to meet the cultural needs of the children other than to find that the foster parents 'believe that diversity is very important.' We share the court of appeals' concern that the district court's findings on this factor 'grossly simplify' the girls' needs... But given our deferential standard of review, we cannot say that the court's analysis of this factor renders its overall best-interests analysis an abuse of discretion."

But in his dissent, Justice Alan Page, joined by Justice David Stras, said Gildea's interpretaton of the law would require courts to consider a relative's adoption petition and a non-relative's "side by side and at the same time," and effectively makes the state statute "meaningless."

"If the Legislature had intended for us to read the statute the way the concurrence suggests, there would have been no reason to require courts to consider placement in a particular order, and absolutely no reason to distinguish between relatives and others," Justice Page wrote.

And that's important in a case like this, Page noted, because the Legislature's authors wrote the statute with race differences in mind. "The authors of the amendments were no doubt concerned that eliminating race as a consideration in adoptive and foster care placements might have the unintended effect of decreasing the likelihood that children from racial minorities would be adopted by relatives," he wrote. "One way to mitigate these potential negative effects was to strengthen the statutory emphasis on placement with relatives by requiring that placement with relatives be considered before placement with others."

Justice Wilhelmina Wright agreed with Justice Page that the district court should've considered the grandparents' petition first before moving on to the foster parents' adoption petition, but she said "the best interests of the children could not have been ascertained without consideration of the impact of the proposed move on these young children."

Here's today's full decision.

The sketch artist in the jury box

Posted at 1:49 PM on March 26, 2013 by Bob Collins (0 Comments)
Filed under: Arts, Crime and Justice

When you're on jury duty and your case goes on for 33 days and includes 200 witnesses, it may be difficult to stay focused.

A juror in the recent Native American mob trial in Minneapolis found a way -- sketching the participants.

The jury eventually convicted three men of being a part of "Native Mob," a criminal enterprise prosecutors said sold drugs, committed violence and other crimes in order to support the gang.

"I really haven't had the time to draw for quite some time," Juror Number 8 told me by e-mail. He prefers that over his true identity, which we're withholding. "I found that i had really missed having the time to express myself in this way."

Prosecutor Andrew Winter.

Prosecutor Steve Schleicher.

Here's what they really look like:

Here's federal judge John Tunheim:

Continue reading "The sketch artist in the jury box"

Audio: Supreme Court on Prop 8

Posted at 12:00 PM on March 26, 2013 by Bob Collins (2 Comments)
Filed under: Crime and Justice

Here's the audio from today's Supreme Court hearing on California's Proposition 8, banning same-sex marriage.

ScotusBlog's Lyle Denniston opines:

If the Justices, in the initial vote they will take on this case in private later this week, do not find themselves with a majority on any of the issues they canvassed, then they might well be looking for a way out. One way would be to find that the proponents of Proposition 8 did not have a legal right to be in court to defend it, but even that was a hotly disputed issue on the bench. The other way out was directly suggested by Kennedy, and pursued by him in more than a fleeting way: dismiss this case as one that should not have been accepted. A decision like that, though, could take weeks or months to reach.

From the 'worst people on the planet' file

Posted at 3:09 PM on March 21, 2013 by Bob Collins (2 Comments)
Filed under: Crime and Justice

Until you have an elderly parent with diminished faculties, scams that target them seem too stupid to have any chance of success. But they do and with great regularity.

It's important to talk to seniors, of course, but when memory begins to fail, it is hard to remember that your loved one once had a talk with you about not falling victim to some of the filthiest people who walk the planet.

This news release today from the Minneapolis Police Department provides one such example:

The Richfield Police Department has informed the Minneapolis Police Department that an old scam has resurfaced.

Recently, a Richfield senior was approached in the Rainbow Foods parking lot by a black female driving a navy blue Dodge Caravan. TUV835. The suspect is described as 45 to 50 years old, 5'4", 160 pounds, straight gray hair, and wearing a medium length purple coat. The suspect wore lots of jewelry and was well dressed.

The suspect showed the victim a medium sized package and said that she was a courier. She claimed she was trying to deliver the package but couldn't because the address was bad. She stated the post office informed her it would go into the dead letter file and would not be delivered.

The suspect asked the victim to sit in her car and use her phone to call her boss regarding the package. She then requested a ride to a nearby bank. The suspect indicated that she went in to see her boss and came back out and said that there was a lot of money in the package and child pornography. She was told by her boss that no one would claim it because they would go to prison if they did. The suspect informed the victim that they could split the $170,000 in cash plus some bonds. She also stated they both needed to get $12,000 each for "fees."

The suspect and victim drove to several banks in order to obtain money from the victim's accounts. The suspect never entered any of the financial institutions, and at the last bank, disappeared with the package and $8000 in cash.

Residents, especially seniors, should be wary when approached by strangers. Please call 911 immediately to report suspicious behavior and/or similar solicitations.

(h/t: Curtis Gilbert)

The value of public humiliation

Posted at 1:19 PM on March 8, 2013 by Bob Collins (1 Comments)
Filed under: Crime and Justice

Maybe Pinkey Carr is onto something.

The Cleveland judge who last year ordered a woman to hold a sign calling herself an "idiot" for driving on a sidewalk to get around a stopped school bus, has issued a sign sentence again this week.

Richard Dameron is getting 90 days in jail for threatening officers in 911 calls, but Judge Carr also ordered him to stand in front of a police station.

"I was being an idiot and it will never happen again," the sign will say.

(Photo: Associated Press)

The right to show a gruesome image

Posted at 1:16 PM on March 6, 2013 by Bob Collins (4 Comments)
Filed under: Crime and Justice

Should protesters who are against legalized abortion be allowed to hold signs and posters showing aborted fetuses?

They can in Minnesota, but not in Colorado.

In 2005, Kenneth Tyler Scott and Clifton Powell led a demonstration outside Saint John's Church in the Wilderness, a Denver-area church they said was liberal, embraced Bill Clinton, and ran astray of teachings of the Bible. They held signs of aborted fetuses. Although they never entered church property, the church sued them for private negligence and won.

Subsequent rulings in the appeal court and the state supreme court limited the time they could demonstrate, blocking out Sunday worship time. They were barred from setting foot on the block around the church and portions of a neighboring block.

The court said it was necessary to protect children "from exposure to certain images of aborted fetuses and dead bodies."

Is it? The U.S. Supreme Court is about to decide whether it's something the Supreme Court needs to decide.

Eugene Volokh, who writes the law blog, The Volokh Conspiracy, took the case and filed his brief this week to the high court. He's a professor of law at UCLA, writing today...

I'm not opposed to abortion myself, and I understand the sentiment behind the decision, but it strikes me as potentially very dangerous. The same arguments could apply to other disturbing images -- for instance, images used by some animal rights protesters, by anti-war activists, anti-drone strike activists, and so on. The arguments aren't even limited to images; see Bering v. SHARE (Wash. 1986), which used the same rationale to hold that an injunction could ban "picketers' oral use of the words 'murder,' 'kill,' and their derivatives."

And beyond that, it seems to me that the upholding of new content-based restrictions, especially on political speech, helps undermine the strength of First Amendment protections more generally. I think the Ninth Circuit was quite right in taking the opposite view in Center for Bio-Ethical Reform, Inc. v. Los Angeles County Sheriff Dep't (9th Cir. 2008), and rejecting a "'minors' exception to the prohibition on banning speech because of listeners' reaction to its content." "It's for the children" has long been a slogan for all sorts of restrictions on individual rights, some justifiable but some not. I'd rather that the strong rule against content-based speech restrictions on political speech not fall victim to this slogan as well.

Why not? Because it would be easier to prevent publication of things like this, for example -- a Tibetan monk immolating himself to protest persecution. Gruesome indeed, but does it serve a purpose in informing people? Volokh says it does.

There's another area where this question might ring a bell for Minnesotans, however: The Westboro Baptist Church picketing the funerals of soldiers.

After church members picketed the February 2006 funeral of Andrew Kemple in Anoka (he was killed in Iraq), the Minnesota Legislature followed other states in passing legislation making it a crime to "disrupt" a funeral.

It mirrored a law passed in Missouri, which a federal court blocked. Supporters appealed to the U.S. Supreme Court then to decide the issue. It did so in 2011. Ruling against the Maryland father of a soldier killed, the court said the protesters had the right to protest. It wasn't close; eight of the nine justices agreed.

The art of social science

Posted at 11:04 AM on March 5, 2013 by Bob Collins (2 Comments)
Filed under: Arts, Crime and Justice

Two people staged a murder inside a New York elevator this week, then filmed people's reactions.

Not unexpectedly, some people intervened. Some people didn't even bother to put the couch down they were moving.

In the category of we-shouldn't-have-been-surprised-but-we-were: the guy who took a picture with his cellphone.

But intervening in a crime is more than just considering personal safety. It also involves figuring out for certain who the bad guy is.

It's interesting social science, especially if one ignores that the video was created to promote Dead Man Down, a movie which opens next week.

Appeals Court: Gang rape participant not an adult

Posted at 10:37 AM on March 4, 2013 by Bob Collins (0 Comments)
Filed under: Crime and Justice

The Minnesota Court of Appeals has overturned the certification of a 17-year old to stand trial as an adult for his participation in a gang-related rape of a girl on St. Paul's East side.

Jim Her was certified to stand trial as an adult last year in the 2011 attack on the 14-year-old girl in an abandoned house on White Bear Avenue. He did not actively participate in the rape, according to court documents, but he was in the room and he didn't try to stop it.

Her is suspected of having been a TB22 member -- a St. Paul gang -- for four to five years. The gang is said to be one of the most violent Hmong gangs in the Twin Cities.

The District Court certified him to stand trial as an adult because of the seriousness of the crime but today the Court of Appeals struck down the order because it didn't adequately consider whether the man could be helped better in the juvenile justice system.

Appellant here had absolutely no prior programming, formal or otherwise. The psychological evaluation and certification study reports both noted that appellant has no programming history and concluded that the factor supports EJJ designation. Dr. Hertog concluded that, based on his 23 years of treating juveniles, appellant fell into the category of a juvenile who was amenable to treatment and for whom appropriate programming was available. In addition, he opined that it was highly likely that appellant would benefit from treatment. Moua also testified that appellant has never received any type of probation. This court has previously held that this factor favors EJJ designation when the child has not participated in any programs.

The district court said "the punishment and programming in the juvenile justice system would be inadequate for a violent crime of this nature" and "would not be commensurate with the seriousness of this heinous offense," once again emphasizing the seriousness of the crime over all other factors, Judge Edward Cleary wrote today.

Prosecutors had said if Her's case were handled in the juvenile system, he could return home and join the gang again, and after age 21, he'd be outside the arm of the law in this case.

But being judged in the juvenile justice system, doesn't make the threat of an adult prison sentence go away, Cleary said.

"The (district) court ignored the fact that designating appellant EJJ (extended jurisdiction juvenile) does not mean that he necessarily avoids the prison sentence that would be imposed upon an adult. Appellant must successfully complete the EJJ programming; if he violates the terms of EJJ programming, the adult prison sentence could, and most certainly would, be executed," Cleary said.

But in a dissent, Judge Carol Hooten focused on what's happened to the victim in this case:

The record also establishes that the victim, who had been a good student prior to the rape, has left school, no longer lives in her home, has psychological issues, and engages in self-injurious behavior. It was reported that the sexual assault instilled fear in the victim, her family, and the community and there was testimony that the victim and her family are afraid of the gang.

She said Mr. Her had repeatedly ignored his father's directives not to associate with gang members, and even recruited his younger brother to join the gang. And, she wrote, it wasn't until after he was charged with participating in the rape that he went back to school and began to get decent grades.

Judge Hooten said certifying Her as an adult "offers a far greater level of protection of the public safety."

Nine defendants were charged in the crime. The ringleader, Vang Tou Ger Vue, 19, pleased guilty last fall. He was sentenced to 21 years in prison.

Here's the full opinion.

Same-sex marriage and one old woman's tax bill

Posted at 3:37 PM on February 26, 2013 by Bob Collins (13 Comments)
Filed under: Crime and Justice

The same-sex marriage debate will begin anew in Minnesota tomorrow when sponsors of a bill to legalize same sex marriage unveil their initiative.

Minnesota was one of the first states to legally rule that people of the same sex cannot be married. In 1971, Richard John Baker and James Michael McConnell (picture) challenged Hennepin County's refusal to grant them a marriage license. The Minnesota Supreme Court ruled against the couple and the U.S. Supreme Court refused to hear the case.

Twenty-five years later, Congress passed the Defense of Marriage Act and a year later, Minnesota passed its own version, specifically prohibiting same-sex marriage.

In Washington today an 83-year old woman challenged the federal DOMA when she filed a brief with the U.S. Supreme Court. When Edith Schlain Windsor's spouse died four years ago, she said, she had to pay a $363,053 estate tax. If she'd married a man, she would have paid nothing.

They were married in Canada after her spouse was diagnosed with a terminal illness, and although New York, where the couple lived, recognizes same-sex marriage, DOMA does not.

The 77-page brief filed today provides something so often missing in the political debate around the issue: a human story.

Lyle Denniston at SCOTUSblog tells it:

She noted that, at the time she fell in love with Thea Spyer in the early 1960s, it was "a time when lesbians and gay men risked losing their families, friends, and livelihoods if their sexual orientation became known." The couple then began "a relationship that would last until Dr. Spyer's death forty-four years later."

Before they met, Ms. Windsor had tried a brief marriage with a man "because she did not believe that it was possible for her to live openly as a lesbian." While she was in graduate school, she noted, she worked as a computer programmer for the Atomic Energy Commission at a time when a presidential executive order barred the government from employing homosexuals -- but she was never asked by the FBI about her sexual orientation in reviewing her eligibility for security clearance.

When she was later hired by IBM as a programmer, that employment, too, was supposed to be barred because IBM was a government contractor.

When she and Dr. Spyer were engaging in their courtship in New York City, they met at a restaurant where lesbians were allowed to eat. After they moved in together and became engaged, Dr. Spyer gave her a diamond brooch instead of a ring, to avoid questions from Ms Windsor's co-workers if they knew she was engaged.

Much of the debate about same-sex marriage has focused on perceived morality. When the Supreme Court hears the challenge next month, it may come down to one old woman's tax bill.

The price of judicial dignity

Posted at 12:43 PM on February 26, 2013 by Bob Collins (2 Comments)
Filed under: Crime and Justice

The Supreme Court of New Jersey is holding a hearing today on whether Judge Vince Sicari has to give up the night gig because it's undignified.

Sicari, whose stage name is Vince August, is a comedian. He often warms up the crowd of the Colbert Report before the show. He does stand-up and some TV comedy.

But he's also a municipal court judge in Hackensack, with a state ethics board that suggests being a comedian is more of an assault on the dignity of the bench than being paid $13,000 to do the job, which apparently he does quite well.

Appeals Court overturns unemployment benefits ban on personal care attendants

Posted at 10:07 AM on February 25, 2013 by Bob Collins (7 Comments)
Filed under: Crime and Justice

The Minnesota Court of Appeals today overturned a Minnesota law that bans people who care for immediate family members as personal care attendants (PCA) from seeking unemployment benefits.

The court ruled in the case of James Weir, who began taking care of his mother in 2010 as a personal care assistant employed through ACCRA Care, Inc.

When she died in 2011, Weir applied for unemployment benefits, but the state Department of Employment and Economic Development denied his claim because the Legislature amended the state's unemployment-insurance statutes to include "employment of an individual who provides direct care to an immediate family member funded through the personal care assistance program" under employment that is considered "uncovered" by unemployment benefits.

But the court today overturned the ruling, saying it violates Minnesota's equal protection clause because it treats people differently.

Judge Jill Flaskamp Halbrooks cited a previous Supreme Court ruling that threw out laws providing for different penalties for cocaine possession, depending on whether it was in powder form or crack form. In that case, the court said, there was no real proof that someone possessing crack was more likely to be a street dealer, and the law can't treat people differently based only on a supposition.

The court said the Legislature amended the law on PCAs in the belief that someone caring for a family member would be more inclined to commit fraud.

Here is what the court said DEED claimed:

... applicants would front-load all of the approved hours during any given six-month period, claiming that they worked extraordinarily high hours during the early weeks or months, and then collect unemployment benefits during the remainder of the time period. . . . These PCAs then collected both wages and unemployment benefits every year, which required the complicity of their family member clients. . . .

While such manipulation would also theoretically be possible in non-family settings, it is substantially less likely. Non-family clients would have no motivation to seek unemployment benefits for unrelated PCAs, nor would they be likely to report that all of their care hours had been used up early in the six-month period, risking that the non-relative PCA would not follow through on the bargain, and continue showing up to provide care even after the hours were reported and the wages were paid.

But the Court of Appeals said there is no proof to DEED's theory, and said legislators relied purely on assumptions rather than facts. And, the court said, there are already penalties for committing fraud in unemployment claims and there's no indication they are insufficient.

To deny unemployment benefits to everyone caring for a family member in the belief that they're more likely to commit fraud is unconstitutional, the judge said.

Here's the full opinion.

What's the big threat at Timberwolves games?

Posted at 2:48 PM on February 20, 2013 by Bob Collins (2 Comments)
Filed under: Crime and Justice

For years, the Minnesota Timberwolves have required fans to pass through hand-held metal detectors. The team, in fact, was more security-conscious than any other sports team in town, dating back to well before 2001. Back then the threat was gang violence. Now it's mass shooting.

You opened up your jacket, they felt your pockets, they looked in your purses, waved a wand around you and off you went. It was a little time consuming, but not terribly disruptive.

Something seemed to change at the last home game. At the skyway level entrances, the lines crossed the skyway into the nearly abandoned Block E.

New security people -- younger ones, for that's worth -- seemed to be taking things a little more seriously. Keys had to come out of pockets, so did cellphones. Yards away from the security perimeter, the ticket-takers had nothing to do. The fans were being released so slowly that I counted one fan getting in to the game about every 30 seconds.

I expected to see a big crowd once I got inside, but, instead, it was one of the smallest crowds of the year. We missed the first five minutes of the game because of the increased security.

It's more fallout from Newtown. The NBA has mandated all team increase their security.

The NBA team issued a news release today and sent letters to season ticket holders that says, basically, "get used to it."

Here it is:

Beginning tonight and through the remainder of the Timberwolves season, the NBA, in a continual effort to improve fan and team safety, has mandated increased security screening with the use of handheld metal detectors for all fans entering Target Center. We recommend that fans arrive early (30 minutes prior to game time) as unexpected delays may occur. Along with asking season ticket members to arrive early and allow for extra time into the arena, please be reminded of the following in order to make your experience as seamless as possible:

• Cooperate with security personnel.
• Be patient while fans and security staff adjust to the new process.
• Be aware of those lines that are shorter or moving faster and be sure to take advantage of them.
• Have purses and coats open and ready for inspection prior to arriving at security check points.
• Remember that outside food and beverages are not allowed.
• Remember that prohibited items include: firearms, knives and other weapons/self defense items such as mace.
• The fan texting number is 612-673-8398. This can be used to send anonymous info or requests to security and guest services staff.
Have purses and coats open and ready for inspection prior to arriving at security check points.

So far, we don't have to remove our shoes.

This should be an interesting exercise once a team comes to town that might draw fans -- Miami in about two weeks should provide the perfect test. The Target Center arena is poorly designed for crowd flow with only two entrance locations.

Freedom of hyperbole

Posted at 1:18 PM on February 19, 2013 by Bob Collins (3 Comments)
Filed under: Crime and Justice

Watch the video and see if you can find the moment that got a guy banned from every public building in a small town in Massachusetts.

After making a joke about shooting, Robert Schueler, a finance committee and sewer commission member, was banned by the Shirley (Ma.) Board of Selectmen from every public building in town. He can only call in to meetings now.

Today, the American Civil Liberties Union filed suit against the town.

"The Constitution protects both popular and unpopular speech, including hyperbole," an official with the local chapter said.

"If the police were truly concerned, they would have charged him, and they didn't," his own attorney said.

The selectmen aren't commenting.

Itchy trigger fingers in California

Posted at 12:42 PM on February 8, 2013 by Bob Collins (4 Comments)
Filed under: Crime and Justice

The manhunt for a murderous Los Angeles cop on a killing spree continues in California.

More than 100 officers from various agencies were searching for Christopher Dorner in the Big Bear Lake region of the San Bernardino Mountains east of Los Angeles, according to the Associated Press.

It's unclear who presents a greater risk to the average person on the street, however: Dorner or some of the police looking for him:

The case of the snow-tuber who got hurt

Posted at 11:49 AM on February 4, 2013 by Bob Collins (2 Comments)
Filed under: Crime and Justice

It's great weather for snow tubing in Minnesota, but you're on your own if you go, the Minnesota Court of Appeals ruled today.

The court upheld dismissal of a case in which a young man sued Green Acres snow-tubing hill in Lake Elmo after he apparently hit another person at the bottom of the hill, although he doesn't remember the accident and no employee saw it.

No matter. The sign in the parking lot saying "tube sliding can be dangerous," the ticket tag that says customer "is voluntarily participating in the activity and acknowledges that snow tubing is a potentially dangerous activity, and the release customers sign saying they hold the owners harmless " provided plenty of warning.

But an attorney for Ryan Grady, the customer involved in the accident, said Green Acres had "a duty to provide lanes on the hill, employ attendants at the top and bottom of the hill who would indicate when it was safe for tubers to come down, and install a protected walkway from the bottom of the hill to the tow rope."

The Court of Appeals made quick work of that argument:

When asked why, when sledding, he waited until no one was in the way before going down the hill, he answered, "So I can make it all the way down and I don't run into anybody." (Emphasis added.) When asked how one could get hurt while snowboarding, he answered, "You could fall, run into a tree or a building or someone else." Thus, the record here supports the district court's conclusion that appellant knew snow tubing entailed the risk of collision with another person and appreciated that risk, just as Snilsberg knew diving into water of an unknown depth entailed the risk of hitting the lake bottom.

Like Snilsberg, who could have avoided the risk by not swimming at all or not diving into the water, appellant had the chance to avoid the risk by not going down the hill. The district court concluded that his "choice to slide down an icy snow hill face-first evinces not only a willingness to relieve others of their obligation for [his] safety, but to leave [his] safety largely to chance." The record supports the district court's conclusion that appellant knew the risk, appreciated it, and had a chance to avoid it.

If you don't want to get hurt while snow tubing, don't go snow tubing.

Mass shooting stats cooked, criminologist says

Posted at 1:58 PM on January 31, 2013 by Bob Collins (14 Comments)
Filed under: Crime and Justice

Are mass killings on the rise?

It depends, apparently, on how you define mass killings.

In a December article, Mother Jones magazine provided a "Guide to Mass Shootings in America," including last year's killings at an office in Minneapolis.

It said...

Since 1982, there have been at least 62 mass shootings* across the country, with the killings unfolding in 30 states from Massachusetts to Hawaii. Twenty-five of these mass shootings have occurred since 2006, and seven of them took place in 2012. We've mapped them below, including details on the shooters' identities, the types of weapons they used, and the number of victims they injured and killed.

That statistic has been cited several times since by news organizations in the ongoing debate over gun control since the Newtown, CT massacre.

It's wrong, Prof. James Fox, a criminilogist, writes today on Boston.com. He looked at Mother Jones' methodology and found the magazine had eliminated mass shootings in the past. For example, he says, Mother Jones included "the 1993 Chuck E. Cheese robbery/massacre of four people committed by a former employee, but excluded the Brown's Chicken robbery/massacre of seven victims that occurred the very same year, presumably because two perpetrators were involved in the latter incident or perhaps because these gunmen had no prior connection to the restaurant."

He also says the magazine eliminated massacres involving family members.

But Fox provides a chart showing no upward trend in mass killings in this country.

According to these expanded figures, there have been, on average, nearly 20 mass shootings a year in the United States. Most, of course, were nowhere as deadly as the recent massacres in Colorado and Connecticut that have countless Americans believing that a new epidemic is upon us and have encouraged healthy debate concerning causes and solutions. Notwithstanding the awful tragedies of this past year, there has been no upward trend in mass shootings.

What is abundantly clear from the full array of mass shootings, besides the lack of any trend upward or downward, is the largely random variability in the annual counts. There have been several points in time when journalists and others have speculated about a possible epidemic in response to a flurry of high profile shootings. Yet these speculations have always proven to be incorrect when subsequent years reveal more moderate levels.

Given the inconsistent pattern -- and rarity -- of mass shootings in the country, Fox says, it will be difficult to determine whether any laws to reduce them worked.

On that score today at the Capitol, a host of gun control measures were introduced in Minnesota. They include tougher laws for transferring guns to ineligible people, a ban on large-capacity magazines and assault weapons, and mental health screening for people applying for firearms permits.

Court: Calling a doctor 'a tool' is protected speech

Posted at 10:48 AM on January 30, 2013 by Bob Collins (5 Comments)
Filed under: Crime and Justice

The Minnesota Supreme Court has thrown out the case against a man for rating a doctor online.

Kenneth Laurion had a stroke in 2010 and was examined in the hospital by neurosurgeon Dr. David McKee in Duluth. Laurion's son found McKee to be "rude and insensitive" during the 20-minute examination.

So he posted the following on some "rate-your-doctor" websites:

My father spent 2 days in ICU after a hemorrhagic stroke. He saw a speech therapist and a physical therapist for evaluation. About 10 minutes after my father transferred from ICU to a ward room, Dr. McKee walked into a family visit with my dad. He seemed upset that my father had been moved. Never having met my father or his family, Dr. McKee said, "When you weren't in ICU, I had to spend time finding out if you transferred or died." When we gaped at him, he said, "Well, 44% of hemorrhagic strokes die within 30 days. I guess this is the better option." My father mentioned that he'd been seen by a physical therapist and speech therapist. Dr. McKee said, "Therapists? You don't need therapy." He pulled my father to a sitting position and asked him to get out of bed and walk.[] When my father said his gown was just hanging from his neck without a back, Dr. McKee said, "That doesn't matter." My wife said, "It matters to us; let us go into the hall." Five minutes later, Dr. McKee strode out of the room. He did not talk to my mother or myself. When I mentioned Dr. McKee's name to a friend who is a nurse, she said, "Dr. McKee is a real tool!"

McKee sued for defamation. A district court judge court threw the case out, but an appeals court kept the defamation claims intact.

Today, the Minnesota Supreme Court threw those claims out, too, saying there's no indication they were false, and there does not appear to be any harm to the doctor.

Statement 3 was published as follows: "Dr. McKee said, 'Therapists? You don't need therapy.' " We fail to see how this statement, standing alone, is capable of a defamatory meaning that would harm Dr. McKee in the eyes of the community. By itself, Statement 3 is harmless. Doctors routinely evaluate whether therapy is appropriate for a given patient.

Of particular interest in the case is the debate over whether calling a doctor "a tool" is protected speech.

It is, the court said today:

Referring to someone as "a real tool" falls into the category of pure opinion because the term "real tool" cannot be reasonably interpreted as stating a fact and it cannot be proven true or false.... See Milkovich v. Lorain Journal Co., 497 U.S. 1, 19-20 (1990). We conclude that it is an opinion amounting to "mere vituperation and abuse" or "rhetorical hyperbole" that cannot be the basis for a defamation action. (explaining that people often engage in name-calling "without any real intent to make a defamatory assertion, and it is properly understood by reasonable listeners to amount to nothing more").

Nonetheless, the assertion that a nurse told Laurion that Dr. McKee is a "real tool" is one of fact because whether a nurse actually made the statement to Laurion is an assertion that can be proven true or false. Dr. McKee argues that Laurion's possible fabrication of the existence of the nurse, and thus the statement attributed to the nurse, creates a genuine issue of fact as to the falsity of Statement 6. As described above, Laurion's assertion that the nurse made the statement to him and the implicit assertion that the nurse exists are susceptible to proof. We nevertheless conclude that even though Statement 6 includes a factual assertion that can be proven true or false, Statement 6 is not actionable because the statement is incapable of conveying a defamatory meaning. First, the part of the statement that can be proven true or false--whether a nurse made the statement to Laurion--does not itself place Dr. McKee in a negative light even if it is false. The assertion that a nurse made the statement only has the potential to cast Dr. McKee in a negative light when combined with the second part of the statement--that Dr. McKee is a "real tool." However, attributing the statement to an unidentified nurse does not add defamatory meaning to the statement.

As a final matter, a review of Laurion's online posting as a whole does not change our holding in this case. Given the reasoning underlying our conclusion that the six individual statements at issue are not actionable, it would defy logic to conclude that the posting, when viewed as a whole, is somehow actionable. Therefore, we reject any argument that the totality of Laurion's statements makes his online posting actionable.

Here's the full opinion.

Nonetheless, there's clearly a lesson here regarding posting material online: Be careful.

Jeff Hermes, director of the Citizens Media Law Project at Harvard University's Berkman Center for Internet and Society, told the Associated Press at the beginning of the case that "people who want to post critical reviews should think about whether they can back up their statements. And they can strengthen their position by stating the facts on which their opinions are based."

"The reality is that we bet our house every time that we post content online," Goldman told the AP. "It's a lousy answer from a societal standpoint because we need people to share their experiences so vendors will be punished or rewarded as appropriate."

Wisconsin sheriff: Get in the game with a gun

Posted at 4:53 PM on January 25, 2013 by Bob Collins (4 Comments)
Filed under: Crime and Justice

It's hard to know whether Milwaukee County sheriff David Clarke is seriously trying to get his citizens to arm themselves or just trying to call attention to cutbacks in his department, but his radio ad certainly has caused a stir in Wisconsin.

Here's the ad:

"Apparently, Sheriff David Clarke is auditioning for the next Dirty Harry movie," Jodie Tabak, Mayor Tom Barrett's spokeswoman, said.

An anti-gun group says Clarke is promoting vigilantism. A pro-gun group tells the Milwaukee Journal Sentinel, "Unless you can take care of yourself, you're kind of SOL."

Fathers, kids, and guns

Posted at 3:20 PM on January 25, 2013 by Bob Collins (2 Comments)
Filed under: Crime and Justice

There's a weird plethora of news stories today about fathers, daughters, sons, and guns.

Let's take it from the top:

>> A St. Paul man has been charged with terroristic threats after he pointed an AK-47 rifle at his daughter during an argument, according to Fox 9 News. The headline says he did so because "she got two B's instead of straight A's in school," but that's not quite correct. He did so after she swore at him, as if that's more logical.

According to the charges, 52-year-old Kirill Bartashevitch recently purchased the AK-47 due to fears that such weapons would be banned under President Obama's push for gun control legislation.

>> In New Jersey, 27-year-old Byaer Johnson wanted to see his daughter but when he entered the home, he was asked to leave. So he shot his daughter in the face, CBS reports.

>> In Oregon, a man admitted "he messed up bad" when he acknowledged he shouldn't have had a gun in the house, what with him being a felon and all. His 11-year-old son found the gun and tried to carjack a woman.

Court: Drunk driving laws not applicable to Segway

Posted at 10:40 AM on January 22, 2013 by Bob Collins (4 Comments)
Filed under: Crime and Justice

In a state where 1 of every 7 people has a drunk driving conviction, a Minnesota Court of Appeals decision today provides some important guidance -- a Segway is not a motor vehicle.

The judges today upheld the dismissal of DWI charges against Mark Greenman, who was cited in Medina last February. He was charged with third-degree DWI (driving under the influence of alcohol), driving with an alcohol concentration of .08 or more, and failure to operate a personal assistive mobility device with due care.

Greenman challenged the first two charges, arguing that a Segway is not a motor vehicle, and he had good cause to because he'd been charged with drunk driving a Segway before and a court dismissed the charge. In that earlier case, the district court said that Greenman was acting as a pedestrian while on the Segway.

In today's ruling, the Court of Appeals cited an earlier case in which a person in a wheelchair was ruled to be a pedestrian:

The DWI statutes do not define a "personal assistive mobility device," but that term is defined in the traffic-regulations chapter as "a self-balancing device with two nontandem wheels, designed to transport not more than one person, and operated by an electric propulsion system that limits the maximum speed of the device to 15 miles per hour."

A Segway meets this definition because it is a two-wheeled, self-balancing, battery-powered device designed for use in places a car or bicycle cannot go, including in buildings. Just like Brown's scooter, the Segway is an "electric personal assistive mobility device" that is specifically excluded from chapter 169's definition of "motor vehicle."

But in a dissent, Judge Roger Klaphake said the court got it wrong, and that the Segway is -- unlike, say, a bicycle -- a vehicle:

This statutory language is clear; it encompasses the Segway that was driven by respondent. The operative language includes "every vehicle that is self-propelled," and excludes only "vehicle[s] moved solely by human power." Minn. Stat. § 169A.03, subd. 15. The references apply to "every device in, upon, or by which any person or property is or may be transported or drawn upon a highway." Minn. Stat. § 169.011, subd. 92. Because a Segway is a self-propelled vehicle or "device" that is not moved solely by human power and by which respondent could be transported upon a highway, a Segway falls within the definition of "motor vehicle" under the impaired driving code.

Here's the full decision.

What happened in North Mankato?

Posted at 10:48 AM on January 18, 2013 by Bob Collins (3 Comments)
Filed under: Crime and Justice

This video from KEYC in Mankato is some of the most dramatic we've seen lately.

Yesterday, police went to a home in North Mankato to check on a resident there.

Hours later, the person inside was dead and it's not at all clear --yet -- why:

KEYC - Mankato News, Weather, Sports -

It's not clear who was doing the shooting.

The Mankato Free Press described the scene in its story today, suggesting that the man inside -- where guns were said to be present -- wasn't talking:

For most of the next three hours, the only sounds were the repetitious calls over a loudspeaker: "We need to make contact with you. Please come to a door or window."

A few minutes later: "You're not in any trouble. We need to make sure you are safe."

Later still: "We're here to help you. Please make contact with us."

After 1 p.m: "Please come to a door or a window. We need to make sure you're OK. Your family is concerned about you."

At 1:37 p.m.: "If you want us to go away, you're going to have to talk to us. We're not going anywhere."

Assault rifles were trained on the house throughout the stand-off.

Police promise to answer questions today. There are obviously plenty of them. It's worth keeping in touch with the Free Press website today.

Update: The Free Press reports the man fired at officers several times and had made homicidal threats.

A clear case of pedophobia

Posted at 1:54 PM on January 15, 2013 by Bob Collins (2 Comments)
Filed under: Crime and Justice, Schools

Is fear of young children a legitimate phobia or a good reason to try to shake down a school district? We're about to find out.

In Ohio, the Associated Press reports, Maria Waltherr-Willard is suing the school district for disrimination after the high school Spanish and French teacher was transferred to a Cincinnati middle school.

She claims all those seventh- and eighth-graders triggered her anxiety, forcing her to retire. She claims her fear of young children falls under the federal American with Disabilities Act and the district violated it by transferring her to the school.

But the Cincinnati Enquirer goes deeper, and notes the beginning of her problems wasn't kids, it was parents:

According to her personnel file, Waltherr-Willard scored high marks in all of the written evaluations she received over the years, including the latest in 2010. She had a continuing contract with the school district, which is similar to having tenure, and made about $84,000 a year.

She began having trouble in 2009, when she discussed with parents the likelihood that the district would eliminate teacher-led French courses at the high school. The high school planned to offer it online.

Parents complained, and in December of that year, Superintendent Paul Imhoff and high school principal James Renner reprimanded Waltherr-Willard, warning her that if she continued talking to parents about the French changes, her job would be at risk and they would put a memo in her personnel file.

Why Minnesota has a sexually dangerous person law

Posted at 10:54 AM on January 7, 2013 by Bob Collins (9 Comments)
Filed under: Crime and Justice

The Minnesota Court of Appeals today provided a graphic account of why Minnesota locks up people after they've served their prison time under the theory that they might offend again.

The court ruled today that a man who has raped several women in the past, can be committed under the state's program just for taking steps that, while not sexually violent under the state's definition, mirror his pattern of behavior that preceded his previous violent behavior.

And what a past Timothy Joseph Crosby has. He raped two women in the '70s, got out of prison, then tried to rape another woman, and was sent to prison for a fairly short period of time.

The Court of Appeals today didn't bury the man's past in legal niceties, describing his days of freedom after his first incarceration ...

Before long, in April 1983, Crosby assembled a kit consisting of a gag, a blindfold, and rope, and then he drove around until he found a girl hitchhiking. He drove her to her requested destination, but then he put a knife to her ribs. He planned to blindfold and bind her hands before driving her to a rural area and raping her. And he imagined hanging her by her hands from the ceiling to facilitate his planned sexual assault. But she resisted, screaming and fighting for the knife. She finally wrested the knife from Crosby, cut him on the hand, and escaped from his car.

Crosby was reported and returned to the Minnesota Security Hospital in 1983 for more treatment. He continued to fantasize about rape and to constitute an "extremely high risk" to reoffend, but he was given passes to shop in St. Peter and the Twin Cities area. In early 1986, he again told treatment providers that he was no longer engaging in sexually violent fantasies, and he was provisionally discharged in June 1987.

If you're keeping score, that's just four years of incarceration for a man who'd already raped two women.

The Court of Appeals continued...

The month after his June 1987 release, Crosby brought a 21-year-old prostitute to his apartment. He choked her, tied her to a bed, taped her mouth and eyes shut, and raped her six or seven times over several hours. The victim eventually freed herself from the restraints and escaped after Crosby left her momentarily unattended. She tore through concealing cardboard and then broke through the window, which Crosby had nailed shut. She crawled outside and was found fleeing naked, bleeding from her hands and feet from their having been wired behind her back. Crosby pleaded guilty to third-degree criminal sexual conduct for this. Crosby's plea agreement in that 1987 case is the focal point of this appeal. In it, the state dismissed a count of false imprisonment, agreed not to seek an upward departure at sentencing, and, most important here, agreed not to file a petition seeking Crosby's commitment as a sexual psychopath or as a mentally-ill and dangerous person. The district court sentenced him to 41 months in prison. Crosby declined sex-offender treatment.

As part of the plea deal, Crosby got only a 41-month prison sentence and a promise from prosecutors wouldn't try to commit him as a sexual psychopath or as a mentally-ill and dangerous person.

In 2000, he was fired as a custodian at the University of Minnesota because he printed pornographic material.

But in 2009, a story about him in a newspaper prompted a complaint from a woman who said her 17-year-old daughter was spending time with Crosby. So the cops searched his apartment.

They found several trunks containing a hacksaw blade and an array of newspaper articles about violent sexual assaults, including rapes, kidnappings, murders, and serial killings. They also found hundreds of pornographic videotapes, magazines, and books depicting circumstances and conduct resembling Crosby's past violent sex crimes.

They also found books on how to rape and torture women. He also hired a 17-year old girl to have sex with a 24-year old woman while he watched.

For that, he got a two-year prison term.

But the judge let him remain free if he promised to follow directives for his sex-offender treatment.

Minnesota petitioned then to commit him as a sexually dangerous person but the Court of Appeals at the time overturned the attempt because "neither the probation agent nor the district court had specifically ordered Crosby into sex-offender treatment, making the revocation for failure to participate in treatment a violation of Crosby's due process rights."

In May 2011, however, a district court ordered him held until it determined whether he could be committed. Crosby argued, however, that the 1987 plea bargain prevented the state from trying to lock him up.

Today, the Court of Appeals rejected that argument, and it ruled what might have been obvious decades ago...

The district court was not presented with these facts in a vacuum; it received them in the context of Crosby's history of already having engaged--repeatedly--in the kind of violent and criminal sexual conduct depicted in the disturbing material that, apparently, once again captivated him. The district court was aware that this same self-tempting, fantasy conduct had accompanied Crosby's previous predatory sexual behavior. These facts do not necessarily prove, as Crosby maintains, "that he can be sexual and concurrently control his actions." At the very least their description in the commitment petition along with Crosby's past criminal activity alerts the district court that the question of renewed commitment is ripe. Crosby insists that this new conduct is not of the commitment-triggering violent nature of his former conduct because he had not acted on his fantasies. But having placed himself again on the self-tempting slippery edge, Crosby has no statutory reason to demand that the district court must wait for another fall before it entertains the state's civil-commitment petition.

So Timothy Crosby is off the streets.

Here's today's full opinion.

Ryan Larson and the urge to name suspects

Posted at 2:48 PM on January 4, 2013 by Bob Collins (7 Comments)
Filed under: Crime and Justice

Though they said the investigation is far from over, authorities are providing some evidence the man found dead in a Cold Spring apartment last night is the man who might have ambushed and killed Cold Spring police officer Tom Decker in November.

The gun used in the killing was found on Eric Thomes' property. He was found dead; He had apparently killed himself as police tried to interview him about "inconsistencies" in the story he's given police.

But BCA superintendent Wade Setter said "We have not excluded anyone as a suspect in this case," and said it would be "premature" to suggest Thomes did it.

KMSP-TV

That's got to sting Ryan Larson, who is the "anyone" Setter is referring to.

Larson's official involvement still seems to be that he was the guy Officer Decker was to check on at the request of some family members.

After the shooting, that was apparently enough to hustle Larson off to jail. His apartment was tossed by the cops, and he was named as a suspect.

The media, many of whom have a policy about naming suspects until they are charged with a crime, tossed their policies, even though the reason it exists is to prevent innocent people from being named until there's some evidence to charge them with a crime. The Star Tribune carried quotes about his temper from an ex-girlfriend.

There was -- and as far as we can tell, still is -- no evidence to charge Larson with anything. The county prosecutor refused to charge him in the case.

But almost every subsequent news story about Officer Decker's killer included a mug shot of Larson, who feared enough for his safety that he didn't return to his apartment for days.

If it turns out that, indeed, Larson was not involved in the shooting as he insists, there'll be plenty of opportunity for introspection on how he was so publicly linked to the crime.

"I just hope it ends for everybody," he told the Star Tribune today.

When rape isn't rape

Posted at 1:11 PM on January 4, 2013 by Bob Collins (4 Comments)
Filed under: Crime and Justice

A man enters the dark bedroom of an unmarried woman after seeing her boyfriend leave late at night, and has sexual intercourse with the woman while pretending to be the boyfriend. Has the man committed rape?

That's the beginning of a controversial decision from an appeals court in California this week that has people calling for a change in an old law.

Julio Morales had been convicted of rape and sentenced to three years in state prison.

Yesterday, the Court of Appeals in Los Angeles answered the question it raised above. No, it's not rape.

It said the California law on rape of an unconscious woman says the woman "is unconscious or asleep or not aware that the act is occurring or not aware of the essential characteristics of the act because the perpetrator tricked, lied to, or concealed information from her."

But the woman in this case was awake; she just thought it was her boyfriend, and besides, Morales didn't pretend to be her boyfriend.

The court, however, didn't really need any of that because it said it was constrained by an 1872 law defining rape:

In light of the continued existence of a separate provision that expressly makes sexual intercourse by impersonation a rape, albeit only when the victim is married and the perpetrator impersonates the victim‟s spouse, we are compelled to interpret section 261, subdivision (a)(4), in a way that does not render subdivision (a)(5) superfluous. Therefore, we reluctantly hold that a person who accomplishes sexual intercourse by impersonating someone other than a married victim‟s spouse is not guilty of the crime of rape of an unconscious person under section 261, subdivision (a)(4).

"Judicial activism" has become a bad phrase. A woman in California, however, could've used a little in this case.

Here's the full opinion.

The gun owner next door

Posted at 1:10 PM on December 26, 2012 by Bob Collins (12 Comments)
Filed under: Crime and Justice, Media

Is it in your best interest to know which of your neighbors has a gun in the house? Does it violate the privacy of gun owners?

New York's Journal News has posted an interactive map showing the location of all gun owners in Westchester and Rockland counties, north of New York City.

My information "should be absolutely private," said Triglianos, who is licensed to carry firearms and owns an AR-15 rifle, the same model of gun used in the Newtown massacre. "Why do my neighbors need to know that? I am not a threat to my neighbors. I don't pose a physical threat to anyone."

He's got some support in surprising place, according to an accompanying article.

The comments section of the paper is worth reading. "I'd rather have a gun owner as my neighbor then a journalist, one is far more responsible then the other," says one commenter.

"It's not necessary for people to know who has what," said Daniel Friedman, a Ramapo councilman and author of the book, "Saving Our Children: An In-Depth Look at Gun Violence in Our Nation and Our Schools." "I think we need to balance people's right to privacy with people's right to safety and people's right to legitimately own guns."

The newspaper didn't do anything illegal in creating the map. All of the data was available using a Freedom of Information request.

But NPR says the move has generated significant pushback against the paper.

And the journalism site, Poynter, says some gun owners and bloggers responded by posting names, home addresses and phone numbers of the paper's publishers and the reporter who wrote the story.

Poynter's Al Tompkins seemed perplexed over why a paper would do such a thing.

"I hope any journalist who does this is willing to be accessible and responsive. If it is unfettered openness you want, you jolly well better set the example," he said.

The reporter of the story owns a .357.

Can a jealous wife force a husband to fire an employee?

Posted at 3:41 PM on December 21, 2012 by Bob Collins (9 Comments)
Filed under: Crime and Justice

If a wife suspects her husband is having an inappropriate relationship with one of his female employees, is it legal to fire the female employee even if there's no evidence of an affair?

It is in Iowa. The state's Supreme Court ruled today that an "employee who has not engaged in flirtatious conduct may be lawfully terminated simply because the boss views the employee as an irresistible attraction."

The court upheld a lower court ruling that Melissa Nelson, who had worked as a dental assistant for Dr. James Knight of Fort Dodge for 10 years, had no basis under the state's civil rights act to sue him when he fired her at his wife's demand.

The two had texted each other with what could be considered sexually suggestive messages. And when Dr. Knight fired Ms. Nelson, he told her it was because he might try to have an affair with her.

In her suit, Nelson claims the dentist discriminated against her on the basis of her gender. She also says the action could allow any employer to fire any employee just by saying "my wife is jealous."

But the court today rejected her argument:

The civil rights laws seek to insure that employees are treated the same regardless of their sex or other protected status. Yet even taking Nelson's view of the facts, Dr. Knight's unfair decision to terminate Nelson (while paying her a rather ungenerous one month's severance) does not jeopardize that goal. This is illustrated by the fact that Dr. Knight hired a female replacement for Nelson.

The court said its decision doesn't mean that the dentist didn't treat his employee badly, just that he didn't treat her illegally.

The dentist's attorney called the 7-0 ruling a victory for family values.

The woman's attorney told the Associated Press it's a case of blaming the victim.

"These judges sent a message to Iowa women that they don't think men can be held responsible for their sexual desires and that Iowa women are the ones who have to monitor and control their bosses' sexual desires," said attorney Paige Fiedler. "If they get out of hand, then the women can be legally fired for it."

Here's the full opinon.

The reviews are in for the NRA news conference

Posted at 10:34 AM on December 21, 2012 by Bob Collins (13 Comments)
Filed under: Crime and Justice

Given the lack of much new emanating from today's long-awaited National Rifle Association news conference reacting to last Friday's Connecticut massacre, Twitter's 140 character limit seems like the perfect vehicle for reviewing it.

NRA: "Sure, some children died, but the president is still a scary black man, so we expect gun sales to remain high. And, um, freedom."

— Top Conservative Cat (@TeaPartyCat) December 21, 2012

So far on NRA's blame list: video games, media, gun free school zones, hurricanes soup.ps/VWfjVo

— Anthony De Rosa (@AntDeRosa) December 21, 2012

.@nra: "The only thing that stops a bad guy with a gun is a good guy with a gun." 5 reasons this logic doesn't hold up ow.ly/gi4hk

— Mother Jones (@MotherJones) December 21, 2012

UPDATE: Has anyone explained to the NRA that absolutely nobody in Mortal Kombat has a gun?

— Disalmanac (@Disalmanac) December 21, 2012

#NRA bungled its response to Newtown. Pulled Facebook pg, says nothing until Wed, holds presser on 1 wk anniversary, blames everyone else.

— Darin Broton (@DBroton) December 21, 2012

When NRA chief starts to criticize the media for concealing the truth, live stream cuts to the bank of video cameras all pointed at him.

— Brian Stelter (@brianstelter) December 21, 2012

Truth! >> "The only thing that stops a bad guy with the gun is a good guy with a gun." #NRA

— Eye on Politics (@EyeOnPolitics) December 21, 2012

The #NRA is ready, willing, and uniquely qualified to help

— NRA (@NRA) December 21, 2012

Continue reading "The reviews are in for the NRA news conference"

The streets of Woodbury (continued)

Posted at 10:57 AM on December 20, 2012 by Bob Collins (7 Comments)
Filed under: Crime and Justice

I see absolutely no reason not to make this a regular NewsCut category.

From this week's Woodbury Bulletin police blotter, a police call that gives new meaning to the classic line, "Come and get me, copper!"

Police responded Dec. 10 to a Woodbury residence for a report of children refusing to go to school. The complainant said his high school-age children refused to go to school because driving was unsafe and they should have a snow day. An officer declined the complainant's request to drive the students to school. The officer learned the children had been taken to school by their mother.

When kids are kids

Posted at 2:05 PM on December 18, 2012 by Bob Collins (1 Comments)
Filed under: Crime and Justice

Kids do a lot of stupid things, as anyone who ever was a kid can attest in their moments of adult honesty. That makes the job of school principals and superintendents harder than it's ever been, especially when you have to figure out what's a serious threat and what's a kid being stupid.

That task fell to Vern Koepp, the superintendent at Rush City High School, when a young man started making threats in class yesterday.

A letter posted on the school's website tells the story...

On Monday a High School student made some very inappropriate threatening comments in a classroom setting. Administration asked the Chisago County Sheriff's Department to assist with the investigation. The Sheriff's department concluded that no credible threat to student or staff safety existed, but the student was still removed from school.

Because investigations by school administration and the Sheriff's department both concluded that a threat to student safety did not exist, we did not inform parents immediately.

After school, dramatized stories began to circulate via social media. We asked the Sheriff's department to investigate these stories and again they concluded that there was no threat to student or staff safety.

Due to the Connecticut tragedy and the incident in the High Schol on Monday it is understandable that community members are apprehensive about the safety of its students. Student and staff safety is our first priority, we take these matters very seriously, we work through safety concerns carefully, and we are confident our schools are safe.

We have emergency procedures in place for both schools and we practice lockdowns at least 5 times each year. In light of these recent incidents we have decided to take additional measures to reassure our community that our schools are safe.

A Chisago County deputy was present in the High School this morning and the department plans an increased presence in the community. All exterior doors, including the main entrance, of both schools will remain locked during school hours the remainder of this week. An adult will be present to allow people to enter the building.

Rush City Schools does not currently have a rapid response mass communication system. Please check this web site for updates.

We understand that student safety evokes strong emotions and we appreciate your understanding as we work through these challenging issues. Please contact principals or me with questions.

Vern Koepp, Superintendent

In hindsight, a lot of things seem obvious. But the situation above is also the toughest job of being a parent: trying to determine what's a kid being a kid and what's something more serious.

Court: Judge can't order jury to reach a verdict

Posted at 10:46 AM on December 17, 2012 by Bob Collins (2 Comments)
Filed under: Crime and Justice

Maybe you've seen the TV crime episode when a jury is hopelessly deadlocked but the judge tells them they have to reach a verdict.

A judge's instruction to them might sound like this:

Members of the jury, I received your note from . . . your foreperson. "We have reached an impasse, how should we continue." I have discussed that with counsel as well as Mr. Olsen. How should you continue? You should continue. I don't believe you have deliberated long enough and I'm going to send you back to continue your deliberations reminding you of the instructions I gave you. And I'll remind you once again you are the finders of fact. There are twelve of you and you are to make a decision on this. It's what I have discussed with counsel, and this is being done with their approval as well but it's ultimately my call. Back to the room. If you go into the noon hour give us a half hour, forty five minutes to get you something to eat.

What you don't see on TV is a Court of Appeals overturning a conviction because of those instructions.

It happened today in Minnesota when the Court of Appeals overturned the conviction of a Chaska man, who was charged with sexually assaulting his girlfriend's child.

In September 2011, a jury convicted the man, just a few hours after the judge told them they had to reach a verdict.

"A hung jury is a legitimate outcome to a trial," the court said today. "Telling a jury that it must reach a verdict may cause jurors holding a minority viewpoint to surrender their honest beliefs in order to reach a unanimous verdict."

Travis Olsen will get a new trial.

Here's the full opinion.

The streets of Woodbury

Posted at 11:42 AM on December 17, 2012 by Bob Collins (3 Comments)
Filed under: Crime and Justice

The local police blotter has always been something from which I can't look away. Particularly in smaller towns, there's no better way to get the temperature of a community.

Years ago, MPR carried a segment with the police chief of Bovey reading a sample of his department's calls, based on the good chief's newspaper column. The late Terry Wilkey started each column, as former MPR reporter Catherine Winter recalled, "with a suggestion that know-it-alls should not read his words because they might overtax their minds. Each column ended with the advice, 'Lock that door and get that license number.'"

I think often about Chief Wilkey when I read some of the blotter items from either the Woodbury Bulletin or the Woodbury Patch. These two come from the latter. What would Chief Wilkey do?

Police were called about a dispute between neighbors--one accused the other of shoveling snow onto her yard. An officer made contact with both and tried to mediate the situation. One appeared willing to do so; the other did not. The officer noticed that the person who was unwilling to make amends had a sign in a window that read: "Merry X-Mas Ass" with an arrow pointing to the other home.

Sometimes, the shortest items can be too revealing about a community:

Police were called about an individual who did not appear to be a "normal clean-cut Woodbury person" in the Ashley Furniture parking lot. Police found no issues.

If a cop says 'get out of the car,' get out of the car

Posted at 11:21 AM on December 10, 2012 by Bob Collins (4 Comments)
Filed under: Crime and Justice

You're pulled over on the side of highway, your passenger is sick, and a cop pulls up behind you. He smells alcohol in the car. If the state trooper orders you out of the car, do you have to get out?

Today, the Minnesota Court of Appeals said "yes," while ordering the reinstatement of driving-under-the-influence charges against a woman.

Last December, a Minnesota state trooper pulled up behind a stopped car on I-94 in Minneapolis when he noticed Julie Ann Klamar's passenger vomiting out the door. The trooper noticed Klamar's eyes were bloodshot and she agreed to a field sobriety test, which she flunked. Her blood alcohol level was later determined to be .122.

But the District Court tossed the case, ruling that the trooper didn't have enough evidence and had "prematurely" ordered the woman out of the car.

"Under the Minnesota Constitution, a person has been seized if in view of all the circumstances surrounding the incident, a reasonable person would have believed that he or she was neither free to disregard the police questions nor free to terminate the encounter," the court said today.

It is generally established that a seizure occurs when a police officer stops a vehicle. But the trooper in this case did not stop Klamar's vehicle; he pulled up and parked behind the vehicle when it was already stopped along the side of the freeway. "[C]ourts generally have held that it does not by itself constitute a seizure for an officer to simply walk up and talk to a person standing in a public place or to a driver sitting in an already stopped car."

In addition, the Minnesota Supreme Court has held that an officer's use of a squad car's flashing red lights, when pulling up and stopping behind a car parked on the shoulder of a highway at night, does not turn the encounter into a Fourth Amendment seizure. But this court has found a show of authority sufficient to constitute a seizure where officers asked a person to exit a parked vehicle and approach the officer.

Is the smell of alcohol in a car with more than one person enough justification for a police officer to seize the driver? "Because the odor of alcohol emanating from the vehicle could have come from Klamar, from her passenger, or from another source in the vehicle, it was reasonable for the officer to physically remove Klamar from the other possible sources," the court ruled today.

Is there something about Grand Marais?

Posted at 2:08 PM on December 6, 2012 by Bob Collins (37 Comments)
Filed under: Crime and Justice

When Tim Scannell was shot in the Cook County courthouse in Grand Marais a year ago this month, it led to a revelation, as reported by MPR's Dan Kraker: In Grand Marais, there's an odd pattern in the town of older men pursuing high school-aged girls. Or being pursued by high-school aged girls.

Continue reading "Is there something about Grand Marais?"

In matters of guilt and innocence, getting it right is time well spent

Posted at 1:08 PM on December 4, 2012 by Bob Collins (7 Comments)
Filed under: Crime and Justice

In the aftermath of the killing of a popular police officer, it's only human nature to want someone to pay, and pay quickly. Sometimes, real life doesn't work that way and there are good reasons it doesn't.

Ryan Larson was released from jail today after prosecutors said they don't have enough evidence to charge him in the shooting death of Cold Spring police officer Tom Decker last week.

If ever there was a compelling reason for news organizations to abide by their occasional policy of not naming suspects until a person is actually charged with a crime, this case may be it. But they didn't and, already, social media is following a sadly predictable path.

"They better get him. They can't let him get away with this," one reader of WCCO's Jason DeRusha commented on his Facebook page.

"He might want to fear for his life," another said.

"That's just not right!!" said a third.

Releasing Larson doesn't mean he didn't do it. It doesn't mean he did do it. It means the justice system works.

What happens when it doesn't?

Terry Harrington and Curtis McGhee think they know. The two served 25 years in prison for the 1977 murder of an Iowa police officer. The Iowa Supreme Court freed the pair in 2003 after it found prosecutors concealed reports about another man seen near the crime scene with a shotgun, and two key witnesses recanted their testimony. They said cops pressured them into implicating Harrington and McGee.

The two are seeking compensation now.

A year ago in Georgia, seven of the nine non-police witnesses recanted their original testimony that Troy Davis killed a police officer. A group of experts, including one from Minnesota, testified that the evidence presented in the case may have led to the wrong man being charged.

Georgia executed him anyway.

"We're in the business of making sure that we convict guilty people and, at the same time, exonerate innocent folks," Bureau of Criminal Apprehension Assistant Superintendent Drew Evans tells the Star Tribune.

We live in a TV-crime-drama world. Over the course of an hour, we expect crimes to be solved. But real life is more complicated and sometimes it takes time to make sure that justice is done.

And sometimes we just have to accept that it's time well spent.

Court to deadbeat dad: Stop having kids

Posted at 4:06 PM on December 4, 2012 by Bob Collins (3 Comments)
Filed under: Crime and Justice

Corey Curtis, 44, of Racine, Wisconsin keeps having kids -- nine so far with six women. He owes $50,000 in back child support and another $40,000 in interest, the Journal Times reports.

"It's too bad the court doesn't have the authority to sterilize," Racine County Circuit Court Judge Tim Boyle said at a hearing.

That's when the prosecutor piped up that a 2001 Wisconsin Supreme Court ruling found that a judge could order people not to procreate unless they keep up to date on support payments.

Then, Boyle so ordered Mr. Curtis to abstain.

The 2001 case was appealed to the U.S. Supreme Court, which had no interest in reviewing it.

It's not the first time the original Wisconsin case was used to try to prevent pregnancy. In Texas in 2008, for example, Felicia Salazar, a 20-year old mother, was sentenced to 10 years probation for not protecting her 19-month-old daughter from abuse at the hands of her father. The judge ordered her not to get pregnant during her probation.

In the original Wisconsin case, the justices concluded the order doesn't prevent a man from sowing constitutional oats...

Applying the relevant standard here, we find that the condition is not overly broad because it does not eliminate Oakley's ability to exercise his constitutional right to procreate. He can satisfy the condition of probation by making efforts to support his children as required by law. Judge Hazlewood placed no limit on the number of children Oakley could have. Instead, the requirement is that Oakley acknowledge the requirements of the law and support his present and any future children. If Oakley decides to continue his present course of conduct--intentionally refusing to pay child support--he will face eight years in prison regardless of how many children he has. Furthermore, this condition will expire at the end of his term of probation. He may then decide to have more children, but of course, if he continues to intentionally refuse to support his children, the State could charge him again under § 948.22(2). Rather, because Oakley can satisfy this condition by not intentionally refusing to support his current nine children and any future children as required by the law, we find that the condition is narrowly tailored to serve the State's compelling interest of having parents support their children. It is also narrowly tailored to serve the State's compelling interest in rehabilitating Oakley through probation rather than prison. The alternative to probation with conditions--incarceration for eight years--would have further victimized his children. And it is undoubtedly much broader than this conditional impingement on his procreative freedom for it would deprive him of his fundamental right to be free from physical restraint. Simply stated, Judge Hazlewood preserved much of Oakley's liberty by imposing probation with conditions rather than the more punitive option of imprisonment. See State v. Evans, 77 Wis. 2d 225, 230, 252 N.W.2d 664 (1977) ("Whether sentence 'is withheld or imposed and stayed, a convicted person's status as a probationer is a matter of grace or privilege and not a right' made possible by the legislature.")

But in a dissent, Justice Ann Bradley claimed finances as a requirement of procreation creates an unequal world...

... by allowing the right to procreate to be subjected to financial qualifications, the majority imbues a fundamental liberty interest with a sliding scale of wealth. Men and women in America are free to have children, as many as they desire. They may do so without the means to support the children and may later suffer legal consequences as a result of the inability to provide support. However, the right to have a child has never been rationed on the basis of wealth.

The lost story in Kansas City

Posted at 11:04 AM on December 1, 2012 by Bob Collins (11 Comments)
Filed under: Crime and Justice, Media

How much do we elevate the importance of professional football players? A tragedy in Kansas City today provides an answer.

A Kansas City Chiefs player killed himself at the team's practice facility. The team's fan website has the important details in its headline...

At CBS sports, the importance of the tragedy on fans' fantasy teams had to be considered...

And USA Today was on top of the story...

BREAKING: Reports: K.C. Chiefs player commits suicide at team facility usatoday.com

— USA TODAY (@USATODAY) December 1, 2012

So was NFL.com

And NPR...

Reports: Kansas City Chiefs Player Kills Self Near Stadium n.pr/TAFAb7

— NPR News (@nprnews) December 1, 2012

CNN only hinted that there might be more to this...

The Washington Post -- appropriately -- provided the missing detail...

Domestic violence is the leading cause of injury to women between the ages of 15 and 44. A woman is beaten every 15 seconds, according to the FBI. Of all female homicide victims, 30 percent are killed by spouses, ex-spouses, boyfriends or ex-boyfriends. Fifteen hundred women die each year the way a woman died today in Kansas City.

That's the story.

The unanswerable questions in Cold Spring

Posted at 12:21 PM on November 30, 2012 by Bob Collins (16 Comments)
Filed under: Crime and Justice, Health, Religion

This is the part of the day -- around 11 a.m. or so -- when the pressure is on to put something new and fresh on NewsCut. A news blog is a beast that has to constantly be fed and most of the time, I can usually find something that fits. Sometimes it's funny or at least a little offbeat; most of the time it's a story that's out of the glare of the daily news.

But not today.

Everything I'm looking at in the world of news looks trivial to me in the aftermath of the death of Tom Decker, the Cold Spring police officer who was killed last night when he went to check on a man who might be suicidal, MPR reports.

Like you, perhaps, I don't really know what to write and yet I have these questions without answers at which I want to scream my frustration.

I look at this picture, and I don't see a cop. I see a kid.

A kid. The same word Cold Spring Mayor Doug Schmitz used this morning. "There's a lot of people in shock wondering how we could lose such a nice young officer," Schmitz said. "Tom was a very well-liked kid."

I see a kid who cared about his town and died making sure someone else in town was OK, not at all different from the viral video I pointed to yesterday of a cop who bought boots and socks for a homeless man in New York, because the regular folks were walking by laughing at him.

I'm aware of the indecent opportunism that people with an agenda have at times like this, and yet I see yet another shooting in Minnesota that should have us asking how people who might have some mental health issues are able to get a gun and kill four kids' father? But we can't get that answer, partly because when Minnesota passed the concealed carry law, its benefactors made sure we couldn't get an answer to that question. It is illegal for the police in Cold Spring -- or anywhere else -- to answer this question: "Did the person who killed Tom Decker have a permit for the gun?" (note: if, indeed, he carried it at some point)

It's illegal to answer that question in the case of the man in Little Falls who finished off two teen burglars with a "clean shot to the chin." It's illegal to answer that question in the case of the man who shot up the office in Minneapolis in October before killing himself.

What if we knew the answer to that question? Maybe we could do something so that other 31-year-old cops don't end up dead on a street outside a bar, and maybe we could do it in a way that doesn't send everybody off to their corners on talk radio. Maybe it could be in the interest of something we have in common. Maybe.

I see another story that may involve someone with a mental illness who didn't, couldn't, or wouldn't get mental health treatment and wonder why people still think they don't have a significant, vested interest in Minnesota's mental health system if they or their immediate family don't have a mental health problem? We all have a mental health problem.

I see the usual questions of faith that I have in times like this. The same ones I wrote about after the shootings in Colorado. I see a story in the Fargo Forum this morning that a lawmaker says it's "immoral" not to mine coal, gas, and oil because "God put it there for us." And I wonder why so many issues can be explained away with God's intent but nobody can explain why God put a young man in Cold Spring to check on a guy with a gun?

I see a media that was -- at least momentarily -- obsessed with a dead cop's possible relationship to a famous football player, as if that's an important question at a time like this, especially when there are so many other questions needing asking and answering.

Even though he not related to me, my thoughts and prayers go out to officer Tom Decker, his family and the Cold Spring community

— Eric Decker (@EricDecker87) November 30, 2012

I want to make things all better for four kids in Cold Spring today and, of course, I can't. I don't know what to do and I recoil at the notion that the we are powerless to do anything but cry out and move on. But, perhaps, we are.

The Little Falls shooting

Posted at 2:59 PM on November 26, 2012 by Bob Collins (13 Comments)
Filed under: Crime and Justice

Here's the play-by-play of last week's killing of two teenagers by a man in Little Falls, as described by the Morrison County sheriff. (h/t: Brainerd Dispatch)

"If you're trying to shoot somebody and they laugh at you, you go again," Byron David Smith, 64, of Little Falls, told investigators.

The great pushup scandal of 2012

Posted at 1:58 PM on November 26, 2012 by Bob Collins
Filed under: Crime and Justice

Old school policing is apparently dead.

In Rhode Island, it's reported today, cops are under investigation for the way they treated the kids who were apparently involved in damaging a mailbox.

After a carload of suspect teenagers was stopped, the cops made the miscreants do pushups as penance for their crime.

And the local TV station treated the story like the second coming of the Rodney King beatings.

The mayor of the city where the incident took place wants the cops suspended for "taking the law into their own hands."

Court: Too much religion in prosecution of priest

Posted at 11:15 AM on November 26, 2012 by Bob Collins (3 Comments)
Filed under: Crime and Justice, Religion

The Minnesota Court of Appeals has apparently narrowed the ability of prosecutors to try clergy charged with having sexual relationships with people who seek religious or spiritual advice.

The court ordered a new trial for Christopher Wenthe, a priest who was convicted last year of having sex with a 21-year old woman. A jury convicted him of sexual assault under Minnesota's third degree sexual conduct statute, which contains this clause in the definitions:

the sexual penetration occurred during a period of time in which the complainant was meeting on an ongoing basis with the actor to seek or receive religious or spiritual advice, aid, or comfort in private. Consent by the complainant is not a defense;

But the prosecutor in the case, in attempting to show Wenthe held power over the woman, introduced the Roman Catholic Church's doctrine on the religious authority of priests, chastity, and the church's "moral prohibition on engaging in sexual reltionships." The prosecutor also provided testimony from a church staff member about the archdiocese's "emphasis on maintaining boundaries with parishioners."

That's too much religion, the Court of Appeals said, noting it "presents a serious risk of excessive government entanglement" in religion. It said the prosecutor provided the jury with "religious standards for judging (Wenthe's) conduct. "It invited the jury to determine appellant's guilt on the basis of his violation of Roman Catholic doctrine, his breaking of the priestly vows of celibacy, and his abuse of the spiritual authority bestowed on Roman Catholic priests."

Wenthe was charged in the incidents that took place while he was serving at Nativity of Our Lord in St. Paul. At the time of his arrest, he was pastor of the Delano Cath­olic Community.

Here's the entire opinion.

Embarrassing the 'idiots'

Posted at 3:39 PM on November 6, 2012 by Bob Collins (2 Comments)
Filed under: Crime and Justice

When is embarrassment a punishment that fits a crime?

In Cleveland, it's when you drive on a sidewalk to get around a stopped school bus.

Shena Hardin, 32, will have to wear a sign for an hour a day that says "Only an idiot would drive on the sidewalk to avoid the school bus."

She was sentenced on Monday. The bus driver took footage of the incident, which left little question that she was guilty. It did, however, leave the question of why only an hour a day?

Is a reduction of hours a good reason to quit?

Posted at 10:56 AM on October 22, 2012 by Bob Collins (6 Comments)
Filed under: Crime and Justice, Economy

The Minnesota Court of Appeals ruled today that employees whose hours are reduced by employers do not have to complain about the reductions in order to qualify for unemployment benefits when they quit.

The Court reversed a decision by an unemployment law judge that Shouna Thao could not collect unemployment because she failed to give her employer an opportunity to return her to full-time status.

In Minnesota, people who quit are generally not eligible for unemployment benefits, but an exception is made for "adverse working conditions" if the employee calls the conditions to the attention of the employer.

But the Court of Appeals said the "terms" of someone's employment and the "conditions" of employment are not the same thing.

As usual in these sorts of cases, the decision came down to trying to understand what the Legislature intended. In 2004, the Legislature removed "a substantial adverse change in the wages, hours, or other terms of employment by the employer" in the definition of good reasons to quit and replaced it with "a reason for quitting employment shall not be considered a good reason caused by the employer for quitting if the reason for quitting occurred because of the applicant's employment misconduct."

But the court said the Legislature never intended to remove a loss of hours from the reasons to quit that would qualify for unemployment benefits.

It sent the case back to the unemployment law judge for a decision, and invited the Legislature to revisit the issue.

Here's the decision.

Did a Minnesota debt-collection agency go too far?

Posted at 3:31 PM on October 15, 2012 by Bob Collins (12 Comments)
Filed under: Crime and Justice

A Minnesota-based debt collection agency is at the heart of a lawsuit filed by an Arizona couple over a defaulted student loan.

Michael Collier, a 100% disabled Army veteran, claims in the lawsuit that the company, Gurstel Chargo, garnished their savings to to cover his wife's $6,000 student loan, even though the money came from Social Security disability payments, which are exempt from garnishment.

But it's the accusation of the tactics the company allegedly used when the couple tried to get their money back that's getting attention.

According to a lawsuit filed last week in Phoenix, a representative of the firm told the couple they'd have to sue.

He was also told during this conversation that he should just sign the funds over as it would make a good down payment on the judgment, but was emphatically told that he would not be getting the money back. During this conversation, after Michael told the legal assistant that the funds were exempt veteran disability payments, the assistant told Michael "F- - - you! Pay us your money! You can't afford an attorney. You owe us. I hope your wife divorces you're (sic) a- -. If you would have served our country better you would not be a disabled veteran living off social security while the rest of us honest Americans work our a- - off. Too bad; you should have died."

Today, the Golden Valley-based company posted a response on its website:

We learned late last week of the lawsuit filed by Michael Andrew Collier and Kim Collier-Dingman. Gurstel Chargo takes the allegations made in the lawsuit very seriously and we have immediately launched an internal investigation to determine the facts. We are extremely disturbed by the allegations stated in the Complaint, as they are contrary to the policies, practices and values of our firm. We expect that all Gurstel Chargo employees fully comply with all state and federal laws, and we thoroughly train our employees to perform their job in a lawful and respectful manner. Under no circumstances does our firm tolerate the type of conduct alleged in the Complaint.

The Complaint states that the wrongful remarks were made during a telephone call. We have requested from the attorney that filed the Complaint the phone number of the phone that Mr. Collier was allegedly on, an approximate date on which the call occurred, whether the person who made the alleged wrongful comments was male or female, all in order to help us to get to the truth about what occurred. We have been informed by Mr. Collier's attorney that he is unaware of any of this information. To date, we have discovered no information to substantiate the allegations, but our investigation continues. Should these allegations prove to be true, we will take immediate corrective and disciplinary action.

(h/t: Nate Minor)

What's an appropriate sentence for 'a monster'?

Posted at 12:00 PM on October 12, 2012 by Bob Collins
Filed under: Crime and Justice

Rare is the day when a judge's sentence for someone who abuses children comes under scrutiny for being too harsh, but today may be that day.

Elizabeth Escalona was sentenced in Texas today to 99 years in prison.

"You savagely beat your child to the edge of death," the judge said this morning at the end of a week-long sentencing hearing.

And there's no question, Escalona is horrible. She drank booze and smoked pot and beat her kid during potty training:

But even the prosecution has requested "only" a 45-year sentence.

The Dallas Observer's blog isn't sure what to make of the trial:

Clearly Escalona is a profoundly disturbed woman who doesn't belong anywhere near her children, despite her family's pleas for leniency. But it's tough to see what larger lesson we can take from this case, and what the purpose was for the unrelenting media coverage we saw this week. Instead, we're left with a window into one woman's terrible, disturbing crimes, and many questions, which will remain unanswered, about how they could have been prevented.

Prosecutors had previously offered the woman a 45-year sentence as part of a plea bargain. She rejected it. She also rejected the advice of her attorney that she shouldn't testify.

Lynx star stopped by cops for air freshener

Posted at 12:00 PM on October 8, 2012 by Bob Collins (23 Comments)
Filed under: Crime and Justice, Sports

The air-freshener-off-the-rear-view-mirror crime has apparently nabbed Minnesota Lynx star Seimone Augustus.

Augustus, who is black, is tweeting today that she was stopped in Roseville for having the air freshener -- which is technically a violation of the law -- but was then quizzed because of alleged crime in the area.

Supposedly he stop me for an air freshner hanging in my window, but then went on talking about theft at the mall

— Seimone Augustus (@seimoneaugustus) October 8, 2012

And the fact that my car was at the mall with out of town plates, WTH I thought this was a free country!

— Seimone Augustus (@seimoneaugustus) October 8, 2012

I didn't know you can only drive minnesota cars to a minnesota mall and if not you must be stealing or doing something illegal.

— Seimone Augustus (@seimoneaugustus) October 8, 2012

Said he would write a ticket for the car freshner if I reported it! WOW! Well...

— Seimone Augustus (@seimoneaugustus) October 8, 2012

Also told me good luck on the game!

— Seimone Augustus (@seimoneaugustus) October 8, 2012

In many cases, police aren't all that concerned about air fresheners; they're looking for a legal reason to stop a motorist.

The air freshener justification for being stopped by police has been widely cited by those who are convinced they were stopped for "driving while black." The illegal air freshener gives police the probable cause to stop a car beyond the possibility they were actually stopped for their race, according to the ACLU. Frequently, police search the vehicles.

It's all perfectly legal. The Supreme Court said so in 1996.

In 2008, a federal appeals court ruled that a driver can be stopped for up to 30 minutes when pulled over for air fresheners. And last year, an immigration case in Illinois hinged on the air freshener debate. It, too, was upheld.

Here's how the law reads in the state:

169.71 WINDSHIELD.
Subdivision 1.Prohibitions generally; exceptions.

(a) A person shall not drive or operate any motor vehicle with:

(1) a windshield cracked or discolored to an extent to limit or obstruct proper vision;

(2) any objects suspended between the driver and the windshield, other than:

(i) sun visors;

(ii) rearview mirrors;

(iii) driver feedback and safety-monitoring equipment when mounted immediately behind, slightly above, or slightly below the rearview mirror;

(iv) global positioning systems or navigation systems when mounted or located near the bottommost portion of the windshield; and

(v) electronic toll collection devices; or

(3) any sign, poster, or other nontransparent material upon the front windshield, sidewings, or side or rear windows of the vehicle, other than a certificate or other paper required to be so displayed by law or authorized by the state director of the Division of Emergency Management or the commissioner of public safety.

The right to carry and the workplace shooting

Posted at 2:43 PM on October 1, 2012 by Bob Collins (7 Comments)
Filed under: Crime and Justice

The Minneapolis Police Department today released a chronology of events from last week's horrible workplace shooting in the city.

And there were plenty of details to be had, including the order in which people were slain, the personnel records of Andrew Engledinger, the man who did the shooting, Mr. Engledinger's police record (several incidents in which he was a victim), and the kind of gun he used. Over the weekend, we also learned that Mr. Engledinger's family had previous sought help for his apparent mental illness.

There's a lot of personal data there. And yet, there is one piece of information that will remain a secret, according to the FAQ the police department released today:

Whose Supreme Court

Posted at 11:55 AM on October 1, 2012 by Bob Collins (4 Comments)
Filed under: Crime and Justice, Politics

It's been a never-ending campaign, this presidential election of 2012, which began almost as soon as Barack Obama was elected in 2008. The campaign of 2016 is just a month away.

The lengthy campaigns have done nothing for quality. There's still hope for the presidential debates, which begin this week. But the list of issues absent from the campaign is a who's who of importance.

The Washington Post brings up one: The Supreme Court.

The Supreme Court is almost always the dog that doesn't bark in presidential campaigns, no matter how much scholars and activists on both the left and right lecture about its importance.

They are right, of course, that a Supreme Court justice with life tenure is one of the most lasting legacies a president can leave. Consider that Ronald Reagan's last election was in 1984 but one of his choices, Justice Anthony M. Kennedy, is the pivotal justice on today's court.

On a divided court, Kennedy is the justice most likely to decide questions of gay rights, affirmative action, who is eligible for the death penalty and even how the presidential campaign itself is financed.

Kennedy is also one of four justices on the court who are still going strong when most mortals would be planning afternoons of bridge or fishing. Kennedy and fellow Reagan nominee Antonin Scalia are both 76. Among the justices on the left, Justice Stephen G. Breyer is 74 and Justice Ruth Bader Ginsburg is 79.

That's some serious old.

Today, the Court took a pass on some fairly important issues for the coming term

Wisconsin: 'Give me your DNA'

Posted at 12:38 PM on September 20, 2012 by Bob Collins
Filed under: Crime and Justice

The civil liberties lawyers may be getting ready for a proposal from Wisconsin officials this week.

Under the plan, anyone arrested for a felony or convicted of a misdemeanor would immediately have a DNA sample taken.

The Milwaukee Journal Sentinel reports the samples would go to a national databank for law enforcement officials around the country to use to match evidence from crime scenes.

"They are just putting more and more people in," Chris Ahmuty, executive director of the Wisconsin American Civil Liberties Union, said. "Where does it stop?"

The Wisconsin plan is more severe than the one already used in Minnesota. Here, DNA samples are taken upon conviction.

That's a plan that has already survived a civil liberties challenge. In January, the state Supreme Court upheld the Minnesota law.

Justice Christopher Dietzen wrote in his opinion that people convicted of a felony "do not enjoy the absolute liberty to which every citizen is entitled."

Under the Wisconsin plan, neither do people who are charged with one.

Offensive speech vs. hate speech

Posted at 1:45 PM on September 13, 2012 by Bob Collins (5 Comments)
Filed under: Crime and Justice

Is the term "illegal immigrants" hate speech?

In a press release today, the National Hispanic Media Coalition released a poll that it says shows media portrayals of Latinos and immigrants "are fueling rampant negative stereotypes among the general population that are diminishing perceptions of these groups throughout the United States."

The group is asking the FCC -- again -- to study the "impacts of hate speech in media."

The group said...

...after viewing just one minute of media content, poll respondents changed the way they view Latinos. When asked if Latinos were intelligent, those who consumed negative news and entertainment pieces were much more likely to rate Latinos as unintelligent, while those who consumed positive pieces were much more likely to rate Latinos as intelligent.

It doesn't define what qualifies as "hate speech" in this context, however. It does say that one of the terms it says leads to the negative perception is the phrase, "illegal aliens."

But does that make it "hate speech?"

Eugene Volokh, the legal scholar who writes The Volokh Conspiracy, doesn't think so.

Now if people want to study how media affects people's perceptions of Hispanics, Southerners, Muslims, evangelical Christians, gays, conservatives, or whomever else, that's just fine, and can indeed be quite interesting. The media, and the formation of public opinion, are eminently reasonable topics for research.

But when (1) not just an advocacy group but Congressmen as well (2) ask the federal government entity that has the power to give and withdraw licenses, including based on media content, (3) to "study" "hate speech," (4) with no definition but with examples broad enough to cover a vast range of commentary (express and implied), that strikes me as especially dangerous. And it ties in to leading international law scholars' views about how restrictions on "hate speech" could be justified using international law norms (see the posts about the views of Prof. Peter Spiro and Dean Harold Koh).

Indeed, Peter Spiro, who writes at Opinio Juris, says that hate speech should be banned, as it is in European countries...

Call me a relativist. We have some pretty good empirical data from the scores of other countries that ban hate speech (in part through signing on to article 20 of the International Covenant on Civil and Political Rights) that a permissive approach to hate speech is not a prerequisite to functioning democracy. On the contrary, our European friends would argue that democracy is better served by banning such material. Either way, our exceptionalism on this score doesn't serve us very well.

Spiro writes his post in the aftermath of the embassy/consulate attacks over the film that spawned them. Others argue, however, that there is a difference between "offensive speech" and "hate speech."

Discussion point: Where is that line?

Court: Police can keep cars of repeat drunk drivers

Posted at 2:28 PM on September 10, 2012 by Bob Collins (3 Comments)
Filed under: Crime and Justice

The Minnesota Court of Appeals ruled today that if you drive drunk, the authorities can seize your car and keep it.

The court ruled in the case of Matthew Nielsen, who was stopped by Minneapolis police in April 2011. He pleaded guilty to DWI, his fourth in two years.

The department seized the car but Nielsen claims under the Minnesota Constitution , "the state cannot acquire his car through forfeiture or that if it can, it must pay him the value of the forfeited car."

But the Minnesota Legislature has exempted some property from attachment, garnishment, or sale on any final process, issued from any court.

Bibles, for example. And some cars...

One motor vehicle to the extent of a value not exceeding $2,000; or one motor vehicle to the extent of a value not exceeding $20,000 that has been modified, at a cost of not less than $1,500, to accommodate the physical disability making a disabled person eligible for a certificate authorized by section

But in its decision today, the Court of Appeals ruled the drunk driving forfeiture of property is not covered by the above statute, and said the Legislature did not intend to protect the loss of vehicles belonging to repeat drunk drivers...

It provides that a drunk driver's motor vehicle is subject to forfeiture when it is used to commit a designated offense; it does not limit forfeiture to a vehicle of any minimum value and expressly allows for forfeiture of motor vehicles that are valued even below $500; it immediately vests "[a]ll right, title, and interest" in the vehicle subject to forfeiture "in the appropriate agency," and then it requires the forfeiting agency either to keep and use the vehicle or to use "70 percent of the proceeds" in its DWI-related operations and distribute the remaining "30 percent of the . . . proceeds" to the prosecuting authority for prosecutorial purposes.

For at least two reasons, the two sections cannot be read as Nielsen argues. First, the forfeiture statute's express allowance for forfeiture of even a $500 car is meaningless if the exemption statute prohibits forfeitures of vehicles valued below $4,400. Second, if Nielsen is correct that the exemption statute allows the state to take a car by forfeiture but requires the state to then reimburse the owner the after-sale exemption amount up to $4,400, then the forfeiture statute's requirement that the forfeiture sale proceeds be divided exactly 70-30 between the acting law-enforcement and prosecutorial agencies could never be followed.

Here's the full decision.

Court: Vehicular homicide conviction not affected by victim's do-not-resuscitate order

Posted at 12:05 PM on September 4, 2012 by Bob Collins (1 Comments)
Filed under: Crime and Justice

A drunk driver whose crash killed a 93-year-old woman on her way home from church in Saint Paul has failed in his claim that he didn't kill her, her do-not-resuscitate order did.

The Minnesota Court of Appeals today rejected Eddie Cortez Smith's assertion that Edith Schouveller's DNR relieved him of any criminal culpability in her death. He broadsided her car at a Saint Paul intersection, a crash that left her with a broken neck, brain injuries, and lacerations.

Over 13 days in the hospital, her condition worsened and she developed pneumonia after being transferred to a nursing home. But she had a living will and had told hospital staff she did not want to be intubated or resuscitated and she died three weeks after the 2010 crash at Milton Street S. and Watson Avenue W. in St. Paul.

In Minnesota, a person cannot be convicted of criminal vehicular homicide, of which Smith was convicted, if something else not foreseeable by the wrongdoer could've "intervened" to cause a death.

But the Court of Appeals said Schouveller's do-not-resuscitate wishes do not fall into this definition.

"The application of a do-not-resuscitate order after Smith drove drunk and severely injured a person is a reasonably foreseeable consequence of Smith's actions," Judge Kevin Ross wrote.

Court of Appeals: Computer ignorance in child porn case is no excuse

Posted at 11:15 AM on September 4, 2012 by Bob Collins (2 Comments)
Filed under: Crime and Justice

A case from the Minnesota Court of Appeals today shows how technology is challenging the definitions of particular crimes.

The case involves a Plymouth man, who used a file sharing program --LimeWire -- to download hundreds of pornographic movies, some of which involved minors. A Minneapolis police investigator traced the IP address to Timothy McCauley, who was later convicted of possession and dissemination of child pornography. The latter is a much more serious charge.

In the LimeWire program, anything downloaded to a private computer is automatically available to other users of the same file-sharing program. McCauley insisted he deleted any of his movies with children in it, but he was convicted of dissemination of the porn by virtue of the fact it was available on his computer for others to download. He was given an eight-year sentence.

Today, the Minnesota Court of Appeals upheld the dissemination conviction despite McCauley's claim that he didn't intend to distribute his downloaded material.

In today's decision, Judge Margaret Chutich wrote that Minnesota requires those convicted of disseminating child pornography to know that they are doing so, and McCauley should have known, even though McCauley claimed he was "computer ignorant."

"LimeWire was widely billed as a "file-sharing" program, and McCauley had used the software for over three years, downloading hundreds of files. The entire reason LimeWire existed was to allow users to share files. The program's default installation screens, which McCauley had to click through to download LimeWire, described LimeWire as 'the most advanced file sharing program on the planet' and clearly informed the user that '[f]iles you download will also be shared with other users running LimeWire.' Further, to download a file after a search, McCauley had to either select each file he wanted or choose 'select all.' The program did not automatically download files--McCauley had to take affirmative action after reviewing his search results. As he admitted, many of the files retrieved through those searches had titles clearly suggesting they contained child pornography.

Judge Chutich said making the videos available via LimeWire "suggests a wholly different criminal objective" than possessing the videos, which is itself a crime.

The full opinion (available here) also carries another obvious lesson: Someone can always see what you're downloading.

LimeWire was shut down by court order in October 2010.

Enter the world of 'behavior officers'

Posted at 10:29 AM on August 30, 2012 by Bob Collins (6 Comments)
Filed under: Crime and Justice

We've gotten a little glimpse of how much getting through security lines at the nation's airports are going to change with the posting of "behavior officers."

The ACLU's "Free Future" blog carries the details of one of its attorney's departure from an airport in Burlington, Vermont recently...

Instead, the agent responded to my answer with a barrage of questions about where in Vermont we had stayed, how long we had traveled, and why we had traveled there. I could feel a suspicious expression involuntarily creep across my face. The New Englander inside me was screaming "you don't know this person from a hole in the wall and you certainly don't want to divulge to him the details of your family vacation!" And yet it seemed that the more discomfort I expressed, the more persistent the agent's questioning became, following us down the line, grilling me unrelentingly about our vacation plans and baggage status.

The New York Times reported this month that its interviews with some TSA agents revealed some of the workings behind the program...

... passengers who fit certain profiles -- Hispanics traveling to Miami, for instance, or blacks wearing baseball caps backward -- are much more likely to be stopped, searched and questioned for "suspicious" behavior.

"They just pull aside anyone who they don't like the way they look -- if they are black and have expensive clothes or jewelry, or if they are Hispanic," said one white officer, who along with four others spoke with The New York Times on the condition of anonymity.

One-hundred-and-sixty-one airports now use behavior officers.

I'm interested in hearing about your flying experiences. Have you encountered similar situations?

(h/t: Tech Dirt)

The right to flash high beams

Posted at 2:43 PM on August 27, 2012 by Bob Collins (14 Comments)
Filed under: Crime and Justice

The Minnesota Court of Appeals today upheld your right to flash high beams at oncoming drivers.

In August 2011, Aaron Neil Sarber flashed his high beams -- twice -- at an oncoming car, which turned out to be a police cruiser driven by a Mille Lacs County sheriff's deputy.

The deputy stopped Sarber and cited him for violating a Minnesota statute, which says "[w]hen the driver of a vehicle approaches a vehicle within 1,000 feet, such driver shall use a distribution of light, or composite beam, so aimed that the glaring rays are not projected into the eyes of the oncoming driver."

But Sarber appealed, saying there was no proof the "brief flashing projected 'glaring rays . . . into the eyes of the oncoming driver.'"

A district court judge ruled against Sarber but today the Minnesota Court of Appeals said although an officer may lawfully stop a driver for violating a traffic law, no matter how insignificant the violation, "a stop is not justified if it is based on a mistaken interpretation of the law."

Up until now, Minnesota courts have not addressed the question of whether flicking high beams violates the law. The Court of Appeals ruled it does not:

Briefly flashing one's high beams at another driver does not, standing alone, amount to use of a light "intensely and blindingly." A bright light of extremely short duration does not amount to "glaring rays." Accordingly, it is a common practice for drivers to flash their high beams to warn other drivers of hazards, or to signal others to adjust their own headlights. Although by no means authoritative, the Minnesota Driver's Manual (published by the Minnesota Department of Vehicle Safety) recommends that drivers flash their headlights to alert a sleepy or distracted driver approaching in the wrong lane. Our unpublished cases also document instances where state troopers have flashed their high beams to signal approaching drivers to adjust their headlights.

The court indicated, however, that failing to dim high-beam headlights when approaching another car is against the law.

Here's the full opinion.

The line between cute kids at play and child porn

Posted at 12:32 PM on August 27, 2012 by Bob Collins (12 Comments)
Filed under: Crime and Justice

If what the wife of a Mankato football coach is saying about her husband's arrest on felony child porn charges is true, there's another chapter in the book of people taking cute pictures of their kids naked.

"The charges against my husband are ridiculous and baseless," Melodee Hoffner said at her husband's attorney's office today. "My family does what every family does - we take videos and pictures of our kids in all their craziness. My husband would not ever abuse our children or any other children."

Her husband, Todd Hoffner, head football coach at Minnesota State University, Mankato, took his broken cellphone to the university IT department to get a new one and the video and images transferred. The technician called the cops when he/she saw the images.

He was charged with possessing child porn and using minors in a sexual performance or pornographic work.

"It's a difficult distinction to make. What's a cute butt and what's pornographic?" That's a classic quote from Stan Rebert, York County (Pennsylvania) district attorney, who charged a 59 year old woman with child porn after she took her film of her two-year-old granddaughter getting out of the bathtub to WalMart.

Fifteen months later, the charges were dropped and the woman, Donna Dull, filed suit against the police.

The same thing happened in Arizona. Lisa and Anthony "A.J." Demaree dropped film off at WalMart of their vacation to San Diego. Several of them were "bath- and playtime" photos of their daughters. The kids were taken from the home for a month. Neither parent was charged with a crime, although the police released statements describing photos that they contended went beyond playtime.

The couple was placed on a sexual offender list. Mrs. Demaree was suspended from her educator job for a year.

A judge returned the children when he viewed the photos and found them to be "innocent" in nature.

"If one of these images that our folks reviewed somehow circulated and it was reported that our office had seen that or that CPS had seen that and basically turned a blind eye, I think most people would say, 'That's not right, you aren't doing your job. You're supposed to be acting to protect children from potential exploitation and an image like that is suggesting that maybe something else is going on here that ought to be investigated,'" a spokesman for the Arizona attorney general told the Arizona Republic newspaper.

The FindLaw Crime and Criminals blog noted the case and explained the guidelines authorities have to make in making these kinds of charges.

Though many acts are obviously sexually explicit, "sexually explicit conduct" under federal law also includes "lascivious exhibition of the genitals or pubic area of any person." Federal court have identified some factors to help decide whether genitals in particular images constitute a lascivious exhibition. These factors include:

Whether the genitals or pubic area are the image's focal point;
Whether the setting is sexually suggestive;
Whether the child is depicted in an unnatural pose or age-inappropriate attire;
Whether the subject is nude, partially or fully clothed;
Whether the image suggests a willingness to engage in sexual activity; and
Whether the image is intended to elicit a sexual response in the viewer.

"The downside of society's increased awareness that bad things happen to children is an increased tendency to see those bad things everywhere," Lisa Belkin of the NY Times parenting blog wrote.

In the Hoffner case, according to the Associated Press, the videos show the children dancing and exposing their genitals.

The Star Tribune describes them this way...

According to the charges, in one video, all three drop towels covering their bodies and jump around, while an 8-year-old boy fondles himself and the two girls bend over and spread their buttocks. In a second video, the girls are dancing naked and the boy enters naked, wearing only a football helmet. In the third video, one of the girls is shown being awakened in bed and told by a male voice "to go potty" before she is followed to the bathroom in her underwear with the camera focused on her buttocks.

The system will sort all of this out. In the meantime, the message to parents is clear: Don't take pictures or videos of your children unclothed.

Tales from the open, err... closed, road

Posted at 10:55 AM on August 24, 2012 by Bob Collins (3 Comments)
Filed under: Crime and Justice

If Americans were better at improv, state troopers might write fewer tickets.

Alas, we're not. The Minnesota State Patrol Facebook page carries this tale today.

Recently, an MSP Sergeant found this semi truck driving thru a closed construction zone on Hwy 212 and Hwy 75 in Lac Qui Parle County. The driver drove around numerous barricades, and after nearly making it all the way through the zone, he met up with a trooper. The driver, who was heading back home to Mississippi, said he didn't know the road was closed. He was cited for driving around a barricade. Great work!!

Mississippi, you say?

The Supreme Court? Take a guess

Posted at 2:54 PM on August 20, 2012 by Bob Collins (5 Comments)
Filed under: Crime and Justice

Can you name a single member of the U.S. Supreme Court?

If you can, you're more knowledgeable than two-thirds percent of your fellow Americans, according to a study out today.

Twenty-percent of those surveyed can name John Roberts as one of the justices. He topped the list of justices people could name.

Stephanie Rahlfs, an editor at Eagan's FindLaw.com, which conducted the study, tried to be kind in a news release about it:

"Recent rulings, particularly the decision upholding health care reform, have brought more attention to the U.S. Supreme Court than we've seen in past years. However, the High Court issues its rulings as a collective body. While justices can and do issue individual concurring and dissenting opinions, court sessions are conducted without TV cameras and deliberations take place behind closed doors. So while the decisions often have significant and lasting impact, the justices themselves are generally not very visible nor well known to the public as individuals."

OK, let's go with that.

A victory for free speech

Posted at 11:23 AM on August 20, 2012 by Bob Collins (3 Comments)
Filed under: Crime and Justice, Media

Juries sometimes reach unfair verdicts and when they do, a judge is supposed to remedy the situation.

That didn't happen in the case of John Hoff, who blogs as Johnny Northside, and who got in trouble because he wrote something that was true about a semi-public figure, that got the semi-public figure fired, and that's when the case went to court.

As I wrote after the original verdict, this case was a lot simpler than the jury made it, because it's about this:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Even a few area "experts" on journalism pooh-poohed the significance of the case, wedded as they may be to a mainstream media look at the world. But Minnesota is where free speech was most vigorously defended (Near v. Minnesota) and they should've been on edge pending today's decision.

There were many troubling things about the original verdict as I also wrote:

Moore's attorney says Hoff doesn't enjoy First Amendment speech protections because he doesn't get all sides of an issue. And, it's maintained, if others post inflammatory comments on his blog -- they do -- then he should be liable for those, too. That allegation should certainly get the attention of mainstream media, since the comments on their Web sites are (a) more numerous and (b) often at least as horrible as anything found on those newfangled blogs.

But the Minnesota Court of Appeals looked at the case and today tossed out the $60,000 verdict, making fairly short work of the question of whether Hoff's blogging was defamatory. It wasn't.

More troubling, however, was what the court found on the question of why Hoff lost the original case: The jury believed that he had lobbied University of Minnesota officials, by contacting them to get the subject of his attacks -- Jerry Moore -- fired.

The Court of Appeals leveled a bit of a broadside to the District Court for letting the verdict stand when there wasn't much evidence to support it:

Similarly, here, we conclude that the district court's basis for imposing liability on Hoff is too broadly asserted to assure that Hoff's constitutional rights are protected. By concluding that the "trial record as a whole" supported the jury's verdict, the district court did not adequately identify Hoff's behavior that was separate and distinct from his protected speech. The district court pointed to Allen's testimony to show that there was evidence of interference by Hoff separate and distinct from his blog post, but we conclude that this evidence is insufficient to independently support the jury's verdict.

Hoff's communication with Allen (a friend of Hoff's who sent e-mails to the U of M after the blog post and who claims Hoff told him to) is too intertwined with Hoff's constitutionally protected blog post to accurately characterize it as independent tortious conduct. Hoff's information about Moore's involvement in mortgage fraud was the primary reason for his communication (through Allen) to the University of Minnesota. The fact that Hoff's underlying goal in conveying this information was to get Moore fired does nothing to disentangle the protected statement from any tortious conduct. We therefore conclude that there is too great a risk of infringing on Hoff's constitutional right to publish this information if he is held liable for Moore's subsequent employment termination.

Hoff isn't everyone's cup of tea. Neither are Nazis in Skokie, the Westboro Baptist Church members at funerals of soldiers, or candidates who lie about their military service. Tough.

Blogs aren't everybody's cup of tea, either. But the importance of today's decision is that had it gone another way, and the original verdict survived, future courts would have a good reason to expand the infringement of speech that is unpopular. It still may, should it end up at the Minnesota Supreme Court with a different result.

On his blog today, Hoff called the decision "total victory," and urged people to devote their attention to the case of three punk rockers imprisoned in Russia.

Here's today's decision.

When you can't say you're a cop

Posted at 3:52 PM on August 16, 2012 by Bob Collins (4 Comments)
Filed under: Crime and Justice

Better scratch "say you're a cop" off the list of ways to get out of speeding tickets.

A federal appeals court has ruled that telling a cop who's pulled you over that you're a cop too is not protected speech under the First Amendment.

Wired.com says it's the first case of its kind since the U.S. Supreme Court struck down a law that forbid falsely claiming to have won military medals or served in the Armed Forces.

The appeals court upheld a Virginia law prohibiting people from claiming to be police officers, ruling in the case of Douglas Chappell, who tried to get out of a speeding ticket in October 2009 by telling the police officer that he was a cop, too.

The judge who wrote the decision let him have it:

Chappell hypothesizes the rights of third parties, arguing that the statute is facially unconstitutional under the First Amendment because it "criminalizes the behavior of adults who attend costume parties dressed as a police officer, children playing cops and robbers, and actors portraying law enforcement officials."

It is telling that these are the only hypotheticals appellant can conjure up. Of course, it is ludicrous to suggest that costumed party-goers, children, and actors will be prosecuted for pretending to be police officers. Despite acknowledging that a number of states "have impersonation statutes like that of Virginia," Chappell does not point to a single case -- in Virginia or elsewhere -- where such a statute has been construed to cover his posited hypotheticals. We decline to facially invalidate § 18.2-174 just because Chappell can conceive of far-fetched applications involving innocent behavior.

The judge also rejected the driver's claim that the Supreme Court's striking down of the Stolen Valor Act opened the door to letting him go free...

Chappell did not make the false claim of being a police officer as mere "bar stool braggadocio," but rather for the material purpose of avoiding a speeding ticket. Impersonation with this latter purpose bears a closer kinship to the kind of identity theft that a state can surely proscribe consistent with the First Amendment. For "[w]here false claims are made to effect a fraud or secure moneys or other valuable considerations, . . . it is well established that the Government may restrict speech without affronting the First Amendment."

But a dissenting judge said Chappell has the right to say he was a cop in some circumstances...

Chappell made no claim to be on-duty as a police officer, speeding for some legitimate purpose, but only claimed that he was employed as a police officer. In doing so, he was not acting as a police officer or assuming any of the "functions, powers, duties and privileges" of being an officer, but simply stating a false fact about his employment.

... this statute criminalizes, contrary to fact, feigning being an officer. This aspect of the statute is undeniably broad. It covers not only someone asserting that he is a police officer in the hopes of avoiding a ticket, but also, among other things: children playing cops and robbers on the front lawn; trainees at a police academy role-playing; and
actors in plays in which peace officers are characters. Indeed, it would have covered Chappell, even if he had not attempted to avoid a ticket but instead expressed his remorse for violating a traffic law, stating, "I am a police officer and should have known better." Regardless of whether strict or intermediate scrutiny applies, I believe that this statute reaches a substantial number of impermissible applications and is thus
overbroad.

For the record, it's a misdemeanor in Minnesota to falsely claim to be a police officer.

(Here's the full Court of Appeals opinion)

Drunk driver who left his victims in a parking lot loses appeal

Posted at 11:40 AM on August 13, 2012 by Bob Collins (1 Comments)
Filed under: Crime and Justice

Fabrizio Montermini isn't having a lot of luck at the Minnesota Court of Appeals.

A year ago, he was given a 14 1/2 year prison sentence after being convicted of third-degree murder, criminal vehicular homicide and six counts of criminal vehicular operation for a drunk driving crash that killed an 18-year old. That was after the Minnesota Court of Appeals allowed him to withdraw a guilty plea in the 2006 crash that allowed him to try his luck with a jury.

That appeal resulted in his getting a stiffer sentence and today, the Court of Appeals rejected his appeal that it constitutes double jeopardy.

In its opinion today, the court wasn't particularly sympathetic:

The egregious nature of appellant's conduct, and the reactions it generated on the part of his passengers, establishes that the conduct was eminently dangerous to human life, that appellant must have been aware he was placing human life at risk, and that he heedlessly disregarded that risk. It also excludes any rational inference that he was merely negligent.

Nor should they have been. Fabrizio Montermini may qualify as one of Minnesota's most despicable drunk drivers based on this must-read description in today's decision that should be required reading for anyone who thinks about getting into a car with a drunk driver.

The undisputed evidence is that, on the evening of January 13, 2006, appellant and B.F. met four friends at a home in Inver Grove Heights to go dancing at Stargate, a Maplewood nightclub. Appellant and B.F. arrived at the home between 7:00 and 7:30 p.m. and appellant began drinking a mixture of vodka and Gatorade. At approximately 8:30 p.m., the group left for Stargate in two cars. There were three passengers in appellant's car. B.F. was seated in the front passenger seat, A.S. was in the rear driver-side seat, and M.C. was seated in the rear passenger-side seat. J.C. drove S.J.
in the other car. Appellant continued to drink the vodka-and-Gatorade mixture as he drove.

None of the group members knew how to get to Stargate, so appellant was relying on directions he was receiving by phone from a friend. The two cars initially drove north from Inver Grove Heights toward St. Paul on Highway 52. When he reached I-94, appellant headed west, but missed the exit for I-35E north. Appellant exited the freeway when he realized they were heading in the wrong direction and stopped his car on a side street. When the trailing car arrived, he reentered I-94 heading back east. On this pass, appellant again missed the turn for north I-35E and continued east on I-94 until S.J., with whom he was speaking by cell phone, confirmed that appellant was driving the wrong direction. He exited at Ruth Street, intending to reenter I-94 heading west. But appellant missed the freeway entrance ramp and instead turned west onto Old Hudson Road, a frontage road with a speed limit of 30 miles per hour, at approximately 9:40 p.m. He continued talking to S.J. by cell phone as he approached a curve in the road at between 58 and 61 miles per hour. As he rounded the curve, appellant lost control of the car, which skidded sideways into the oncoming lane, and the passenger side of his car struck the front end of an oncoming vehicle.

The collision left all three passengers of appellant's vehicle unconscious. B.F. suffered a severe head injury and multiple fractures. M.C. suffered a broken femur. A.S. received cuts and bruises. Four occupants of the car appellant struck were also injured. Appellant, who remained conscious, exited his vehicle. He walked down an embankment and urinated, then returned to his car. Despite the efforts of a bystander to stop him,
appellant drove up a curb, nearly striking other bystanders, then drove away from the accident scene. He rolled through a red light before turning north on Ruth Street, then accelerated to nearly 80 miles per hour. When appellant came upon an unlit church parking lot, he dragged the unconscious bodies of his passengers from the car onto the cold pavement, then left.

The last minutes of the people in the car were horrible:

Appellant resumed driving on I-94 heading east, and according to M.C., his driving became "worse." A.S. said he was driving "[v]ery, very fast," and estimated he was going 90 miles per hour. M.C. testified that she saw the speedometer indicate the car was going 115 miles per hour. She stated, "I was sitting there screaming for my life asking him to let me out of the car, to pull over and let me out." But according to M.C., appellant would either ignore them or say, "No way, dog."

His attorney argued at the trial that he should be sentenced to probation.

Here's the court's opinion.

Live coverage: Sikh temple memorial service

Posted at 10:43 AM on August 10, 2012 by Bob Collins
Filed under: Crime and Justice

Courtesy of Milwaukee's NBC TV affiliate, here's live video coverage of the memorial service for victims of the Sikh temple shootings in Oak Creek, Wisconsin.

Visit NBCNews.com for breaking news, world news, and news about the economy

The color of terrorism

Posted at 12:17 PM on August 6, 2012 by Bob Collins (9 Comments)
Filed under: Crime and Justice

The man who shot innocent people in in a Sikh temple in Wisconsin yesterday was likely a white supremacist, the Southern Poverty Law Center says.

It's a reminder that right up until September 11, 2001 in this country, the word "terrorist" and "white supremacist" were closely linked. In fact, the threat of terrorism from white supremacists in this country was often a nightly news story. Then, the planes were driven into the World Trade Center and the Pentagon, and the popular portrayal of "terrorist" changed to a different color.

Now, it's clear, white is back.

The threat of terrorism from white supremacists is cataloged by a number of recent alleged plots .

In April, for example, two Minnesota men with ties to white supremacist groups -- 31-year-old Samuel Johnson of Austin and 42-year-old Joseph Thomas of Mendota Heights -- amassed several weapons as part of a plan to attack the government, minorities and others. The FBI started investigating the two in 2010. Thomas told an undercover agent he also tried to get explosives and automatic weapons to attack "left-wing individuals." He was allegedly planning to attack the Mexican consulate.

In May, 10 members of the American Front, a white supremacisty group were arrested for planning to kill Jews and minorities in the "inevitable" race war, the Orlando Sentinel reported.

In October 2008, law enforcement agents broke up a plot by two neo-Nazi skinheads to assassinate Democratic presidential candidate Barack Obama and shoot or decapitate 88 black people.

Sometimes the threats succeed. In June 2009, James W. von Brunn opened fire at the National Holocaust Museum, killing a security guard.

And, of course, there's Timothy McVeigh, who set off a bomb in front of a federal building in Oklahoma City in 1995, and killed 168 people including 19 children under the age of 6.

Since 2009, the Southern Poverty Law Center says, the number of right-wing extremist groups has jumped from 149 to 824.

"With the breathless way the media covers hate groups, it is sometimes easier to characterize them simply as misfits or extremists, rather than acknowledge them as part of the larger problem of widespread racism, anti-Semitism, and homophobia," civil rights advocate Loretta Ross wrote back in 1995.

Not much, apparently, has changed but the attention paid to the problem.

How a couple responds to Aurora shooting

Posted at 2:03 PM on August 3, 2012 by Bob Collins (3 Comments)
Filed under: Crime and Justice

Let the record show that Jacqueline Keavney Lader and Don Lader and have guts.

The couple was in the movie theater in Aurora, Colorado when a man started shooting. They escaped the killing spree, but went to another theater the next day to finish watching the movie that had been interrupted.

Ms. Lader writes at Daily Beast:

The shooter's intent was to cause fear, injury, and death. We escaped injury and death. Whether it was due to luck, fate, our military training, or all three, we'll never know. But we both refuse to let fear consume us. We refuse to allow this one madman to injure our minds and spirits the way he tried to injure our bodies. If we let fear overtake us and prevent us from living bold, authentic lives, the shooter--and other murderers like him--wins.

1,000 Words: The parents

Posted at 11:39 AM on July 20, 2012 by Bob Collins (5 Comments)
Filed under: Crime and Justice

There isn't a good parent in the world who doesn't understand the pain of Tom Sullivan, center, who is shown in this AP photo embracing family members outside Gateway High School in Aurora. He's looking for his son, Alex, who celebrated his 27th birthday by going to see "The Dark Knight Rises."

(Photo: Barry Gutierrez/ASSOCIATED PRESS)

There's already a fair amount of political squabbling going on in the wake of the tragedy in Colorado. But this is the story today. It's the only story for today.

Court: Refusing to submit to drunk-driving test implies guilt

Posted at 10:55 AM on July 16, 2012 by Bob Collins (24 Comments)
Filed under: Crime and Justice

If you're arrested for drunk driving and refuse to submit to chemical testing on constitutional grounds, you're out of luck in Minnesota, the Court of Appeals ruled today.

Ruling in the case of a Lakeville man, the Minnesota Court of Appeals dismissed his challenge that criminalizing the chemical-test refusal violates a constitutional right to refuse to consent to a warrantless police search. It said Jason Wiseman of Lakeville enjoyed no such constitutional protection. It said Minnesota drivers drive under "implied consent" to have "his or her blood, breath, or urine chemically tested for the purpose of determining the presence of alcohol."

The court said the state "may compel an individual to stand in a lineup or wear particular clothing, or to produce incriminating nontestimonial physical evidence such as a blood sample, handwriting exemplar, or a voice exemplar, all of which require the individual's cooperation. If an individual refuses to cooperate with such requests, it is not fundamentally unfair or a violation of due process to use the individual's refusal as evidence of guilt."

In saying Wiseman's objection did not involve a "fundamental right," the court said "impaired drivers pose a severe threat to the health and safety of motorists in Minnesota, and the state has a compelling interest in highway safety that justifies effort to keep impaired drivers off the road."

Here's the full opinion.

Time to wash our hands of Penn State

Posted at 2:25 PM on July 12, 2012 by Bob Collins (19 Comments)
Filed under: Crime and Justice, Sports

To paraphrase Denny Green, Joe Paterno was who we thought he was... assuming we thought he covered up for pedophiles.

Everything that's wrong with bigtime college sports was on display for all to see this morning when Louis Freeh, the former FBI director, released his report on the investigation into how it is young boys could be abused for so long in the athletic facilities of Penn State, and have so many people look the other way.

The answer was shockingly simple: sports was more important to important people than protecting kids.

Here's the full report. Here's the full news conference:

Joe Paterno, the legendary coach of Penn State, was implicated in the cover-up, which has to now, not enraged many Penn State fans as much as the dastardly questioning of his integrity has. If Freeh to be believed, Paterno had none to speak of.

In State College, Pennsylvania this afternoon, they're still in denial.

"They're tarnishing his record," Penn State sophomore Chris Bloom told the Associated Press today.

As if that matters.

At least Nike has more of a clue. It announced today it's removing Paterno's name from a child care center at its headquarters.

Senser stepdaughter: 'She's there because of the crime she committed'

Posted at 12:02 PM on July 10, 2012 by Bob Collins (4 Comments)
Filed under: Crime and Justice

Amy Senser's stepdaughter, who forced her stepmother to admit her role in the crash that killed Anousone Phanthavong, hit the morning talk show circuit today.

Brittani Senser, 28, told Good Morning America today, "I was under the impression that my family was in complete compliance with authorities. When the news broke and there wasn't a driver identified... speculation that it could have been any of us. I told them, because I knew ... that she had to take responsibilities for what she'd done."

"It was sad," she said of her stepmother's 41-month sentence, "but she's there because of the crime she committed."

"It's hard to believe from the evidence that she didn't know she hit something," she said.

Ms. Senser is trying to put together a singing career...

How the Senser sentence compares

Posted at 12:17 PM on July 9, 2012 by Bob Collins (6 Comments)
Filed under: Crime and Justice

As you probably know, Amy Senser was sentenced to 41 months in prison for the hit and run death of Anousone Phanthavong. Some in the social media world are claiming the sentence is too light.

How does it stack up against other hit and run sentences?

Here are a few recent ones:

March 2012 - Christopher Trauman, of Oronoco, was given 16 years in prison in the November 2010 hit-and-run of four people in Rochester, one of whom died. Authorities lodged 21 counts against him. He was drinking at the time of the accident.

February 2012 - Mark Wayne Lindgren, 55, of Bloomington was sentenced to three months in the workhouse for the hit and run accident that killed Dorothy Hanson. The accident occurred on 10th Avenue S in October 2010 as Ms. Hanson was crossing Old Shakopee Road.

November 2011 - Gregory John Larsin , 21, was sentenced to seven years and four months in prison for the hit-and-run death of a 78-year-old man. He passed a group of vehicles stopped at a crosswalk to allow the elderly man to cross.

April 2011 - Christian Rogat, 41, killed a man on a moped in Edina in September 2010 and then fled the scene. He pleaded guilty to four counts of criminal vehicular homicide. He was drunk at the time. He was sentenced to three-and-a-half years in prison.

March 2011 - Taylor Rose Hohmann, 20, pleaded guilty to criminal vehicular homicide and was sentenced to one year in jail for the hit-and-run death of a man. In March 2010, she hit Mike Rymer with her SUV and left the scene in Crystal. She told police she thought she hit a pothole.

October 2008 - Armando Velasquez, 20 of Faribault, was sentenced today to 57 months in prison in the April 2008 hit and run crash in Burnsville that killed a Prior Lake man. He pleaded guilty to a charge of criminal vehicular homicide.

The judging of Toni Medrano

Posted at 11:18 AM on July 9, 2012 by Bob Collins (15 Comments)
Filed under: Crime and Justice, Media

There may not be a sadder story than the one today from Cottage Grove, where -- the Star Tribune reports -- a 29 year old woman set fire to herself last week, a month after being charged in last November's death of her infant son. She fell asleep drunk on the couch, rolled over, and suffocated him. Now, she's dead.

Does anyone else share responsibility for how this ended?

How about Nancy Grace?

The woman, Toni Medrano, obviously had a drinking problem. The Nancy Grace website audience wasn't much interested in considering it...

From several accounts, Ms. Medrano saw and read it all. A friend posted this week...

I am actually a close family friend; you and anyone else tossing harsh words have no idea what happened. Yes drinking with your infant child isn't the best thing to do, but that's not for me to judge. This was indeed an accident, and she had to live with that accident; but Nancy Grace you have shown so much evil upon her amongst other people in the media, that she is now in a hospital after commiting suicide and she has a zero chance to live. So thank's for demonising a person for an accidental death and causing another personsdeath. I use to be a fan, but now all I see is another rating seeking soul-less monster. Another thnig to all of you that have your thoughts about another persons life, if you don't have anyone living in your house to tell you what your doing wrong, then maybe learn the entire situation first before you hear what they want you to hear. There are always two sides and this side of Nancy Grace simply just came from the courts to make a mockary of another mother for a wrongful death.

In today's media environment, there's instant judgment.

How bad do things have to be to drive this?

Posted at 12:57 PM on July 6, 2012 by Bob Collins (14 Comments)
Filed under: Crime and Justice

The State Patrol/Department of Public Safety has posted details of the seizure of this car in Koochiching County this week.

It's a Ford Pinto, which should have been enough justification to impound it and cite the driver for unsafe equipment.

But the spare tire and gas can rigged to the engine was a dead giveaway...

Not to mention -- although I'm about to -- the rusted out floor...

We don't know the circumstances surrounding why the driver had to drive this car, but unless there was an unnatural love between a person and a Pinto, it can certainly be assumed that the answer is this is the car the person could afford.

On a day in which big charts and data are explaining a bad economy, this might be the best illustration of all.

You can find more pictures here.

Court: Locked courtroom is still a public trial

Posted at 1:04 PM on July 5, 2012 by Bob Collins
Filed under: Crime and Justice

If a judge locks the courtroom doors, have you lost your right to a public trial in the state of Minnesota?

Today, the Minnesota Supreme Court said "no," ruling in the case of Jerrell Brown's 2010 trial , who was convicted of aiding and abetting first-degree murder for the benefit of a gang. Brown was a member of the Shotgun Crips gang.

After closing arguments in the trial, the judge in the case had the courtroom door locked during jury instructions, but did not order anyone inside to leave. Brown was convicted on all four counts of murder.

"Not all courtroom restrictions implicate a defendant's right to a public trial," Justice Alan Page wrote in today's opinion. He said the trial remained open "to the public and the press" and neither the defendant nor his family were denied the opportunity to witness the proceedings.

But Justice Page cautioned judges in the state to be careful when locking courtrooms, saying "the act of locking courtroom doors during jury instructions creates the appearance that Minnesota's courtrooms are closed or inaccessible to the public... the better practice is for the trial court to expressly state on the record why the court is locking the courtroom doors."

Justice Helen Meyer dissented, however, criticizing the judge for not explaining why the courtroom was closed. "The act of locking the doors such that the public may not enter or exit for the duration of jury instructions certainly contravenes the 'presumption of openness' at the heart of the public trial guarantee," she wrote.

Here's the full opinion and dissent.

Taking advantage of a flood

Posted at 3:42 PM on June 28, 2012 by Bob Collins (4 Comments)
Filed under: Crime and Justice

Which is worse: A flood, or the people who take advantage of a flood?

At the River Place Campground on the St. Louis River, when campers escaped the floodwaters, they couldn't escape the thieves, Duluth Outdoors reports.

River Place Campground from Duluth Outdoors on Vimeo.

A listen back on the health care arguments

Posted at 10:47 AM on June 28, 2012 by Bob Collins (2 Comments)
Filed under: Crime and Justice

Looking for a little light listening about the U.S. Supreme Court decision on the health care law?

Might I suggest 85 of some of the most important minutes in U.S. history?

Minnesota Supreme Court limits challenges to breathalyzer tests

Posted at 12:01 PM on June 27, 2012 by Bob Collins (8 Comments)
Filed under: Crime and Justice

People who are or were arrested for drunk driving in Minnesota lost a bid today to fight their charges on the basis of errors in the instrument used to administer breathalyzer test.

The Intoxilyzer 5000EN uses infrared absorption spectroscopy to measure the breath alcohol concentration of subjects who provide breath samples. But last year, Minnesota acknowledged there's a problem with the source code in the unit, prompting Minnesotans to start challenging their arrests.

Today, a sharply divided Minnesota Supreme Court turned aside the challenges, upholding a district court finding based on a state's expert witness that the instrument "produced valid breath alcohol measurements and functioned as designed."

But nearly a half-dozen other experts concluded otherwise when the district court held a hearing. But in his opinion today, Justice Barry Anderson dismissed those claims. "Based on this record, we conclude that a preponderance of the evidence supports the district court's pretrial determination that Intoxilyzer 5000EN instruments that report a numerical value for measured breath alcohol are reliable and unaffected by the source code errors alleged at the evidentiary hearing."

"I have concerns regarding the practical effect of these rulings to the extent they essentially eviscerate the opportunity for an accused to challenge the weight or credibility of Intoxilyzer 5000EN results," Justice Alan Page wrote in a dissenting opinion. He says even the proximity of a cellphone at the time of the test could influence the results, but a person charged with drunk driving couldn't full admit into evidence the reliability of the breathalyzer.

"The practical result of the court's holdings is that defendants will be unable to challenge Intoxilyzer 5000EN results," Justice Page said. "Despite evidence that the test has a margin of error, that radio frequencies from cell phones can disturb the accuracy of the test, and that the test may erroneously produce a deficient sample,4 a defendant may not raise the source code as a potential cause of an inaccurate or deficient sample. Denying the accused an opportunity to raise source code issues effectively eliminates the accused's opportunity to challenge the results."

Two other justices -- Helen Meyer and Paul Anderson -- joined in Page's dissent.

The full opinion is here.

Scalia's immigration dissent

Posted at 10:47 AM on June 25, 2012 by Bob Collins (8 Comments)
Filed under: Crime and Justice

One thing is clear in today's Supreme Court ruling that struck down parts of Arizona's controversial immigration law while keeping its key part: Much of it was written in the last week or so.

That much is clear in a strongly worded dissent from today's decision. In it, Justice Anton Scalia takes aim at President Barack Obama's recent immigration policy change, that eliminates deportation of young people who brought to the country illegally by their parents. That policy was only announced a week ago.

The policy wasn't before the Supreme Court, but Scalia gave it a blistering review:

The President said at a news conference that the new program is "the right thingto do" in light of Congress's failure to pass the Administration's proposed revision of the Immigration Act. Perhaps it is, though Arizona may not think so. But to say, as the Court does, that Arizona contradicts federal law by enforcing applications of the Immigration Act that the President declines to enforce boggles the mind.

The Court opinion's looming specter of inutterable horror--"[i]f §3 of the Arizona statute were valid, every State could give itself independent authority to prosecute fed eral registration violations," seems to me not so horrible and even less looming. But there has come to pass, and is with us today, the specter that Arizona and the States that support it predicted: A Federal Government that does not want to enforce the immigration lawsas written, and leaves the States' borders unprotected against immigrants whom those laws would exclude. So the issue is a stark one. Are the sovereign States at themercy of the Federal Executive's refusal to enforce the Nation's immigration laws?

Find the entire opinion (and dissent) here.

Bus monitor update

Posted at 1:53 PM on June 21, 2012 by Bob Collins (5 Comments)
Filed under: Crime and Justice

The fastest-traveling news story in America today is the story of Karen Klein, a bus monitor in suburban Rochester, New York, who was tormented by the most vicious pack mammal on the planet -- the 13-year-old human. I posted the video and follow up on 5x8 this morning.

The police have rounded up the kids, but Ms. Klein is not pressing charges against them, a police captain said during a news conference today.

The school spokesman made a terrific point. The video should be a springboard for parents to have a discussion with their children about bullying. You don't have to be in Greece, NY to comply with the suggestion.

Meanwhile, an online fundraising effort to give Ms. Klein a vacation passed $250,000 this afternoon. That's $250,000 more than the cost of what she really wants -- an apology.

U of M student's Facebook posts can lead to punishment, court says

Posted at 5:45 PM on June 20, 2012 by Bob Collins (2 Comments)
Filed under: Aviation, Crime and Justice, Tech

The First Amendment does not give you the right to be free from punishment for engaging in unethical conduct, the Minnesota Supreme Court said today.

You may recall the case of the University of Minnesota mortuary sciences student who was disciplined by the university for making jokes about a cadaver and making threats on her Facebook page (Details here), posting about her punishment and talking to the news media about her punishment. Today, the Minnesota Supreme Court upheld the school's right to discipline Amando Tatro, saying it did not violate her right to free speech.

"The driving force behind the University's discipline was not that Tatro's violation of academic program rules created a substantial disruption on campus or within the Mortuary Science Program, but that her Facebook posts violated established program rules that require respect, discretion, and confidentiality in connection with work on human cadavers," the Court acknowledged.

"Nonetheless, the parties agree that a university may regulate student speech on Facebook that violates established professional conduct standards. This is the legal standard we adopt here, with the qualification that any restrictions on a student's Facebook posts must be narrowly tailored and directly related to established professional conduct standards," it said.

"In this case, the University is not sanctioning Tatro for a private conversation, but for Facebook posts that could be viewed by thousands of Facebook users and for sharing the Facebook posts with the news media. Accordingly, we conclude that the University's sanctions were grounded in narrowly tailored rules regulating widely disseminated Facebook posts."

The university allowed Tatro to continue in the Mortuary Science Program with a failing grade in one laboratory course.

(Full opinion here)

Court: Man who got bad legal advice, can't withdraw plea leading to deportation

Posted at 4:13 PM on June 20, 2012 by Bob Collins (1 Comments)
Filed under: Crime and Justice

There are new rules and there are old rules and sometimes people have to leave the country because of old rules no longer in effect. An example comes today from the Minnesota Supreme Court, which has handed defeat to a man who wanted the right to withdraw a guilty plea, because he hadn't been told it would mean he likely would be deported.

The right to do so was conveyed by the U.S. Supreme Court in 2010, but that was a year after Rene Reyes Campos pleaded guilty to a reduced charge of simple robbery and was given a stayed sentenced of three years (I first wrote about this case here). Campos had been a lawful resident of the U.S. since 2002, but his attorney didn't tell him that his guilty plea would lead to deportation.

Last year the Minnesota's Court of Appeals ruled that Campos should be allowed to withdraw his plea, saying the U.S. Supreme Court's decision should give him the protection from ineffective counsel.

Today, Minnesota Supreme Court Chief Justice Lori Gildea said it does not.

Gildea acknowledged that Campos' counsel was ineffective when viewed in the context of the U.S. Supreme Court decision. "But under our precedent at the time of Reyes Campos' please, his counsel was not effective," she wrote.

Justice Gildea said that the U.S. Supreme Court's "Padilla" decision "announced a new rule of criminal procedure." She said Minnesota is not bound to provide it retroactively.

In a dissent, however, Justice Alan Page said there is no dispute that Reyes Campos received bad advice from his attorney. "prevailing professional norms in Minnesota at the time Reyes Campos' conviction became final dictated that Reyes Campos' counsel provide his client with information about the clear deportation consequences of his guilty plea," Justice Page wrote. "The failure of Reyes Campos' attorney to ensure that Reyes Campos received the required immigration warnings fell below an objective standard of reasonableness."

Full decision here.

O(bese), Canada!

Posted at 12:24 PM on June 19, 2012 by Bob Collins (1 Comments)
Filed under: Crime and Justice, Health

Today's question in the news: Can obese people be good parents?

Not in Canada, judging by a CBC story this afternoon.

A 38-year-old unidentified man says he's been unable to regain custody of his children -- they were taken from his wife last year -- because he's obese.

The man told CBC's The Current Tuesday he weighed 525 pounds at that time, but then lost about 180 pounds. He said he is still working hard to lose weight and is now 380 pounds.

"I haven't seen my youngest son since February of last year and I haven't seen my eldest son since September of last year," he told a CBC radio program today. "I believe the weight was a determining factor in my custody case. They picked the one thing they could use as a quantitative number. I'm a fantastic father, I love my kids wholeheartedly."

Find the interview here.

Related: Weight loss tips that make you fact (Above the Law)

Court: Carrying a gun in private yard not illegal

Posted at 12:17 PM on June 18, 2012 by Bob Collins (15 Comments)
Filed under: Crime and Justice

Police officers in Minnesota cannot detain someone on the front yard of a private residence solely on the report that he might have a gun, the Minnesota Court of Appeals ruled today.

The court made its ruling in the 2010 case of Theng Yang, who was arrested outside a Frogtown home in Saint Paul, which police said was associated with gangs and drugs. A caller to 911 had reported "a man with red pajamas" had a gun and when the police arrived, they saw Yang, pulled their guns and ordered all the men in the yard to the ground.

That's the point at which the police made an unlawful search and seizure, the Court of Appeals said today.

Yang, who could not lawfully possess a gun in Minnesota because of a felony conviction, was convicted of unlawful firearm possession and sentenced to five years in prison.

Yang argued, however, that while Minnesota law generally prohibits carrying a handgun without a permit on public property, a residential yard is not "a public place."

The court refused to declare that any residential yard is "not a public place," but Judge Kevin Ross wrote that police misinterpreted the law .

When the police arrived, Yang was "coming out the front porch into the front yard," apparently nowhere near governmental property--a sidewalk or street, for example--and the state makes no claim of it. Although it turned out that Yang illegally possessed a firearm anyway because a previous conviction prohibited his possession, this is of no consequence to the stop because police had no reason to know that and because the state has attempted to justify the seizure instead only on the supposed suspected violation of the handgun statute.

Similarly, the officers' awareness that drugs had been found and arrests had occurred previously at the home do not create reasonable suspicion to detain an occupant on a new report that he possesses a handgun.

Here's the full opinion.

Thief bait

Posted at 12:31 PM on June 11, 2012 by Bob Collins (9 Comments)
Filed under: Crime and Justice

In the Northfield area, there's a crime spree underway that could be stopped in a second if drivers would simply do one thing -- remove valuables from the car.

A read of any police blotter in the local community newspapers reveals a startling trend of leaving purses and wallets on the passenger seat. At the risk of blaming the victim, just one question: "why?"

According to the Northfield News, people are leaving iPods and iPads out in the open and then leaving the car unlocked. One more question, please: "why?"

Twenty-two vehicles were broken into over the weekend, the Northfield News says.

The police in Northfield are reminding people to at least lock their cars.

That doesn't always work.

That's a picture of WCCO anchor/reporter Jason Derusha's car. I swiped the image from his Facebook page where he reported thieves in Minneapolis had an easy way of getting around the "lock your car" thing, swiping his GPS last night.

I had the same problem last year when someone stole a GPS from my car, which I'd left unlocked.

It's getting the point where it's a lot less of a pain in the neck to wander around lost.

Court: Red Wing officials can inspect rental properties without probable cause

Posted at 11:25 AM on June 11, 2012 by Bob Collins (2 Comments)
Filed under: Crime and Justice

Although the Minnesota Supreme Court breathed life into landlord complaints last year, the Minnesota Appeals Court has rejected their claim that a Red Wing ordinance is unconstitutional.

Red Wing adopted a law in 2005 amid allegations that absentee landlords were providing unfit rental properties. Under the ordinance, their properties must be inspected by city officials, even if there's no probable cause to believe there are violations. Landlords must submit to an inspection in order to obtain a rental housing permit.

A property rights group, the Institute for Justice, sued. The case was thrown out of lower courts until the Minnesota Supreme Court ruled in December it's a legitimate constitutional question, sending the case to the Minnesota Court of Appeals.

The group said this section of the Minnesota Constitution bars the practice:

Sec. 10. UNREASONABLE SEARCHES AND SEIZURES PROHIBITED. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the person or things to be seized.

Today, the Court of Appeals rejected the challenge, saying the Minnesota Constitution's section is identical to the U.S. Constitutions Fourth Amendment, and the U.S. Supreme Court has already upheld similar laws to the Red Wing ordinance.

In 1967, the Supreme Court held that a nonconsensual and warrantless search of a residence by a municipal housing inspector violates the Fourth Amendment. But that holding was "the beginning, not the end, of [the Court's] inquiry." The Court recognized the nearly "unanimous agreement among those most familiar with this field that the only effective way to seek universal compliance with the minimum standards required by municipal codes is through routine periodic inspections of all structures." No matter how substantial the public interest in protecting health and safety, that is not determinative, because citizens also have "a very tangible interest in limiting the circumstances under which the sanctity of [the] home may be broken by official authority."

In Camara, the Court held that housing inspections should not be conducted without a warrant issued after a showing of reasonableness and a balancing by the decision-maker of "the need to search against the invasion which the search entails."

"[P]robable cause to issue a warrant to inspect" may be established by the existence of "reasonable legislative or administrative standards for conducting" inspections in a particular area, which standards "may be based upon the passage of time, the nature of the building . . ., or the condition of the entire area." But the required standards "will not necessarily depend upon specific knowledge of the condition of the particular dwelling."

The Court specifically rejected the complaining tenant's argument that "warrants should issue only when the inspector possesses probable cause to believe that a particular dwelling contains violations of the minimum standards prescribed by the code being enforced." In short, the arguments being made by appellants before this court are identical to those rejected in Camara.

"The tenants and landlords in this case demonstrated Red Wing's program violates the right to be secure in one's home and to be free from unreasonable searches," Institute for Justice Minnesota Chapter Attorney Anthony Sanders said in a press release today. "Whether this kind of search is even allowed under the Minnesota Constitution is an important and timely issue that the Minnesota Supreme Court has never decided. More and more cities are passing these laws, and Minnesotans need protection now from these invasive and unconstitutional searches. Our clients are determined to continue their defense of all Minnesotans' liberty and privacy. It is on to the supreme court that we go."

Here's the full opinion.

Supreme Court: Nervousness can lead to expanded search during traffic stop

Posted at 1:49 PM on June 6, 2012 by Bob Collins (9 Comments)
Filed under: Crime and Justice

If you're stopped by the police, don't shake. It might be used as a reason to search your car, according to the Minnesota Supreme Court.

In July 2009, two Minnesota State Troopers stopped Brandon Smith for driving 77 in a 65-mile-per-hour zone. When answering the troopers' questions about whether he knew why he was being stopped, Smith appeared to be shaking and the troopers figured he was nervous about something. They didn't believe his excuse that he shakes because of a medical condition.

When asked, Smith acknowledged he had a pistol in the car, and that the license to carry it had been revoked. The troopers handcuffed him and searched the car.

After his conviction, Smith appealed admission of the pistol into evidence, claiming the search was illegal because the troopers expanded the scope of the reason for pulling him over by asking him whether he had any weapons in the car.

In a decision today, Justice Paul Anderson rejected the claim. "We can do so because we conclude that Smith's extreme shaking and his evasive response when asked about his shaking provided the officers with reasonable, articulable suspicion sufficient to support an expansion of the traffic stop," Anderson wrote.

"We recognize that ordinary drivers may become nervous during a routine traffic stop," he said. "But Smith's nervousness appears to have manifested itself in a severe physical manner, distinguishing it from past cases in which we decided nervousness was an insufficient basis to establish reasonable suspicion of illegal activity."

But dissenting from the opinion, Justice Alan Page said a driver's nervousness doesn't give police a reasonable suspicion of criminal activity. "It is not illegal for an out-of-state traveler, who suffers from a medical condition like Parkinson's Disease, to pull over to the side of the highway to input an address into his or her GPS," Page wrote.

Here's the full decision.

The mass-detention tool

Posted at 3:54 PM on June 5, 2012 by Bob Collins (4 Comments)
Filed under: Crime and Justice

Any day in which people debate the Constitution is a good day. Today is a very good day.

On the heels of the St. Charles high school decision to force students to take breathalyzers, comes this story from Aurora, Colorado in which a bank robber was believed to be making his escape by car.

So the police stopped cars at an intersection, handcuffed everyone (at least the adults) and searched their cars. They got the bank robber in the last car they searched, according to ABC.

"It's hard to say what normal is in a situation like this when you haven't dealt with a situation like this," a police officer said. "The result of the whole ordeal is that it paid off. We have arrested and charged a suspect."

The police chief says none of the 40 or so people handcuffed has complained.

(h/t: Brad Benson)

Minnesota Supreme Court derails tobacco lawsuit

Posted at 10:56 AM on May 30, 2012 by Bob Collins (9 Comments)
Filed under: Crime and Justice

The tobacco industry has had a tough time winning court cases in Minnesota in recent years. It won one today, however, when the Minnesota Supreme Court killed an 11-year-old lawsuit against Philip Morris that claimed the company fraudulently marketed Marlboro Lights as a safer cigarette.

The Minnesota Court of Appeals had resurrected the case in late 2010 after the U.S. Supreme Court ruling in 2008 cleared the way for class action suits against cigarette companies that manufacture "light" cigarettes. The Appeals Court said Philip Morris could be sued for false advertising, consumer fraud, and deceptive trade practices under Minnesota consumer-protection statutes."

But today, the Minnesota Supreme Court said the suit, filed by a private party, can't proceed because the 1998 tobacco trial settlement, negotiated between then Attorney General "Skip" Humphrey's office and Philip Morris, precludes it

The group filing the suit claimed the tobacco company marketed the Marlboro Lights as safer than a typical cigarette. Memos uncovered during the Minnesota tobacco trial revealed the company knew the claim to be false. The memos acknowledged that consumers who smoked "low tar" or "light" cigarettes, took longer "drags" on them, negating any benefit.

In a dissent to today's ruling, Justice Alan Page argued the case should proceed because the false and deceptive advertising claims occurred after the 1998 settlement agreement.

Here's the full decision.

Similar lawsuits were filed in several other states.

"The Minnesota Supreme Court now joins with 14 courts in 15 'lights' cases which have rejected these claims on a variety of legal and factual grounds, Murray Garnick, Altria (Philip Morris' parent company) senior vice president, said in a statement.

The case of the jailed honor student

Posted at 11:10 AM on May 29, 2012 by Bob Collins (10 Comments)
Filed under: Crime and Justice, Schools

A story out of Texas has us wondering where the line is between the letter of the law and common sense.

Diane Tran spent a night in jail last week because she had more than 10 unexcused absences.

Tran works a full-time job, a part-time job and takes advanced placement and dual credit college level courses, according to KHOU TV in Houston. She helps support two siblings.

"She goes from job to job from school," Devin Hill, one of Tran's classmates, told KHOU-11. "She stays up until 7:00 in the morning doing her homework."

The judge said he wants to make an example of the girl. "If you let one (truant student) run loose, what are you gonna' do with the rest of 'em? Let them go too?"

Of course, the student already is an example.

Getting the Busy Signal

Posted at 3:05 PM on May 22, 2012 by Michael Olson
Filed under: Crime and Justice

If Dancehall artist and deejay Busy Signal comes to Minnesota anytime soon, it likely won't be to share his riddims and impressive studder-step vocal styles. He is under arrest in Jamaica, and authorities in Minnesota are seeking his extradition.

Drug conspiracy charges were filed against Glendale Gordon, his legal name, in 2002. The extradition request follows his failure to appear in Minnesota to face those charges.

Court documents alleged he was involved in a conspiracy to distribute 5 or more kilograms of cocaine, which at 2002 prices would fetch more than $100,000. An amount like that would certainly surpass usage of, say, a backstage party.

Musically, in 2002, Busy Signal was shaping his craft. In 2006 he released "Step Out," which helped lift the Dancehall genre to popularity far beyond Jamaica. Here's a lesser known track from that album that showcases his vocal talent.

Unrelated, but interesting, a gram of cocaine in Colombia costs less than a Big Mac.

Court: Offensive, but infrequent, harassment does not a hostile workplace make

Posted at 1:15 PM on May 18, 2012 by Bob Collins (5 Comments)
Filed under: Crime and Justice

You're a female janitor at Elk River High School. Your boss, a man, prohibits women from talking to each other, tells the male janitors he doesn't want women on his crew, says "women have their place -- the kitchen and the bedroom," and says Elk River High School is not the place for women.

Is this a hostile work environment under Minnesota law?

This week, the Minnesota Supreme Court ruled it's not.

In ruling in the case of Carol LaMont, the Supreme Court overturned lower courts' rulings that under the Minnesota Human Rights Act, a claim of a hostile work environment cannot be based on harassing conduct that's not "sexual" in nature.

"One type of behavior that can alter a female employee's conditions of employment, amounting to discrimination, is conduct that amounts to sexual harassment," Justice Helen Meyer wrote in her opinion. "Another type of behavior that can alter a female employee's conditions of employment, amounting to discrimination, is verbal and physical harassment based on sex. This, too, is 'disparate treatment of female employees merely because they are female,' the kind of behavior we have said the MHRA seeks to eliminate."

But in awarding LaMont that victory, Justice Meyer ruled that the actions in Elk River are not a hostile work environment because it wasn't severe enough. It said the boss' comments were "offensive, but infrequent," and that they were not physically threatening, severe, or intimidating. Meyer also said the statements, while abusive, did not appear to have "unreasonably interfered with her ability to do her job."

But in a dissent, Justice Alan Page said that LaMont's boss directed his comments at LaMont "because she was a woman. When treatment 'is directed at female employees because of their womanhood, female employees are faced with a working environment different from the working environment faced by male employees.'"

Page also disputed Meyer's observation that the the boss -- Doug Miner -- also subjected men to harassing behavior. Page called the determination "troubling."

"An employee subject to discriminatory conduct by 'an equal opportunity harasser' is nevertheless protected by the MHRA," Page wrote.

Page said the Supreme Court's standard applied in this case will not "'secure for persons [in Minnesota] freedom from discrimination' in employment because of one's sex."

Here's the full opinion.

Court of Appeals tosses lawsuit by lesbian golf coach

Posted at 11:04 AM on May 7, 2012 by Bob Collins (1 Comments)
Filed under: Crime and Justice

The Minnesota Court of Appeals today reversed a lower court and ruled against a former University of Minnesota associate women's golf coach who sued the university for taking away her coaching duties after learning she is a lesbian.

Kathryn Brenny sued former U of M golf director John Harris and the Board of Regents after she was dropped from coaching and offered a sales job at TCF Bank Stadium instead.

Harris, who resigned his position last summer, had appealed a lower court decision that rejected his bid to dismiss allegations against him for interfering in her contract.

Today, the Minnesota Court of Appeals ruled the allegations of interference in the contract are not subject to district court review:

According to respondent, her problems began on the first day of her employment and continued for approximately the next two months, culminating when she concluded that she was constructively discharged. During this period, respondent initiated and attended numerous meetings with appellant and other university supervisory employees, who responded to her complaints by first warning her to "get on board" with appellant's leadership of the women's golf program, and eventually by reassigning her to a position outside of the golf program. The decisions of respondent's superiors, including appellant, were made within the scope of their employment. As such, delving into the underlying motivations for appellant's conduct would impermissibly inquire into the university's exercise of discretion to hire, manage, or dismiss its employees.

In a dissent, Justice Judge Lawrence Stauber said the lower court had good cause to reject Harris' bid to throw the lawsuit out.

According to Ms. Brenny, from the moment Mr. Harris learned of her sexual orientation, he effectively and completely blocked her from performing her job, for which she was well-qualified, and unilaterally revoked nearly all of her contracted job duties as head coach of the women's golf team. Mr. Harris allegedly stated that he would not permit Ms. Brenny to travel with the team to tournaments because he "discovered [that] she was a homosexual and did not want her on the road with the team." Thus, if she can prove her allegations, Mr. Harris' conduct was wholly unrelated to the university's management or supervision of Ms. Brenny as an employee; instead, it was a personal attack based on nothing but his own bigotry. Indeed, Mr. Harris' decision was made before Ms. Brenny had a chance to perform any of her job duties. As such, Mr. Harris' conduct was "separate and distinct" from the university's employment decision and is not subject to the same limited certiorari review.

Brenny can still attempt to sue through a higher court, but only if an appeals court agrees to hear a case. It said to do otherwise would violate a separation-of-powers doctrine.

Here's the full decision.

The Senser verdict

Posted at 12:55 PM on May 1, 2012 by Bob Collins (8 Comments)
Filed under: Crime and Justice

The jury has started its deliberations in the case of Amy Senser, the woman who drove off after hitting and killing 38-year-old Anousone Phanthavong on an I-94 off-ramp last year. She insisted during her testimony yesterday that she didn't know she hit someone.

Is that enough to avoid conviction on the most serious charges? There is, of course, no predicting what a jury might decide but this particular case has been accompanied by many in the public insisting that money and race would win out.

These tweets from the days after the accident revealed a general distrust that the the justice system would hold someone accountable.

But in the intervening weeks, investigators investigated, cops arrested, and prosecutors charged.

Even so, the jury's decision could likely renew the heated rhetoric the case spawned.

Question of affair surfaces in Senser trial

Posted at 1:16 PM on April 26, 2012 by Bob Collins (21 Comments)
Filed under: Crime and Justice

The Amy Senser trial certainly took an interesting -- and confusing -- turn today when prosecutor Deborah Russell tried to challenge Joe Senser's claim that his wife never lied to him.

Mrs. Senser is on trial for the hit-and-run death last year of Anousone Phanthavong.

According to the Star Tribune, this is the exchange between Russell and Mr. Senser:

"Not about having affairs with other men?" she asked.

Senser testified that he'd never asked her about affairs.

"Did you catch her in inapprorpriate relationships with other men?" she asked.

"No."

News of any affair hasn't entered into any documents or statements surrounding the accident.

MPR's Brandt Williams, who's covering the trial, says Senser's attorney did not object to the question, and there was no indication why the line of questioning surfaced.

Do any lawyers in the audience want to provide some analysis of what this is all about and the possible strategy?

Speed dating for justice

Posted at 11:16 AM on April 23, 2012 by Bob Collins (13 Comments)
Filed under: Crime and Justice

Early reports (by way of the Star Tribune) say the amount of media coverage in the Amy Senser case was the focus today as jury selection got underway.

As the trial got underway at about 9:20 Monday morning, Hennepin County District Judge Daniel Mabley told potential jurors that there has been a lot of media coverage of the case. He then mentioned a questionnaire that had been sent to the jurors last week about that coverage.

In court, he asked how many people had seen or heard news coverage of the case since the questionnaire was sent out. Mabley took note of the ones who raised their hands.

Jury selection is tough on people whose careers involve telling people what's going on because the answer to the judge's question usually confirms that many people -- sometimes most people -- aren't paying attention.

Of the people who raised their hand in answer to the judge's question, most said they hadn't seen much media coverage.

One who had acknowledged seeing a lot of coverage is still in the jury pool, after promising he could make a fair decision on the facts. We'll see if someone who pays attention to the news is judged worthy or whether the ones who don't know much about the biggest criminal story of 2011 make it.

Either way, the question of who makes a good juror is the stuff science is made of, or --as one lawyer puts it -- "speed dating for justice."

In most cases, lawyers look for the basics: people who are smart, can understand what's going on in court and can make decisions. They have their eye out for people who will be able to control things when deliberations start. After that, it's often a free-for-all, and many lawyers have their own preferences.

"I love mailmen. I don't know what it is. They are all nice, friendly, talkative souls. They just seem to be happy, warm human beings," says Keith Mitnik, of Morgan & Morgan, P.A., who has selected some 100 juries in his career. He has received multiple verdicts over $1 million and teaches the art of jury selection.

Engineers? Teachers? Military? Young? Old? Men? Women?

"I like engineers," Mansbach said. "They tend to think logically and won't be swayed by emotion."

Some lawyers see teachers as more liberal and lenient because they deal with children. Military folks are sometimes favored because they know how to follow instructions and the law. Young people might be easily swayed by older jurors. Older people may be more conservative. Men might be good for a female client, but in general older men may be grouchier than younger men. Women may be good for clients suffering from breast cancer but may be tougher on a female rape victim who may appear to them to have acted inappropriately.

Jamie Harrison, who writes a blog at the University of Maryland, argues the system is antiquated.

Who is the perfect juror? Lawyers search for jurors who are so dimly aware of, and participate so infrequently in, their society that they have never come into contact with anything that might have provided them with information that they might use to form an intelligent and informed decision. This is because the attorneys want the jurors to only be conscious of information provided to them in court. A perfect juror, in their eyes, is a blank slate who can be effectively swayed by the words of lawyers. It makes no difference that adults who are "blank slates" are in this condition for a reason. So, by the process of negative selection, we arrive at a jury that is populated with individuals who are the least likely to employ complicated, nuanced reasoning when presented with evidence in court.

Having a jury of simple folk may have been workable in an age where the Cotton Gin represented the height of ingenuity, but is simply inadequate in modern times. Much of the physical evidence that jurors are expected to interpret today is highly technical, and many of the terms that will eventually decide guilt or innocence have definitions with multiple layers that require a depth of understanding to apply in real life. If the jury, during deliberations, recognizes this dilemma and asks for clarification or explanation of terms, they are usually told that this assistance would be inappropriate. This leaves them to grope about for a verdict with the same utter ignorance with which they first came to the courtroom. Confused jurors tend to ignore evidence, which favors the defendant

Question: Do you think you could sit on the Senser jury?

Norway's sense of justice

Posted at 12:15 PM on April 20, 2012 by Eric Ringham (2 Comments)

I take pride in my Norwegian heritage, but it's hard to imagine life in a country where the worst sentence a mass murderer can get is 21 years. The Anders Breivik story has been painful to watch for a host of reasons - such a beautiful and peaceful country savaged by such a horrific crime; so racist and brutal a killer, somehow sprung from the land of the Nobel Peace Prize; a challenge so blunt to the Norwegian traits of tolerance and generosity.

And it's painful, too, because that very tolerance and generosity will extend even to this monster who claims to have acted on behalf of the country he hurt so badly. Uff.

Decades ago, one of my relatives in Norway - an old merchant marine sailor -- shocked me with a casually racist remark about Africans. Being young and stupid, I was tempted to generalize from that remark that Norwegians might actually be racists who hadn't yet met many people of color.

A more defensible generalization, though, is that Norwegians seem to be people who will stick to their principles through thick and thin. Journalists covering the trial have quoted survivors and onlookers saying the same thing in different ways: Breivik tried to change us, to shake us from our ideals, but he couldn't do it.

Breivik has expressed contempt for the 21-year-sentence that may follow a conviction, and says he should be either acquitted or executed. I'd say he has half a point. But then, my people left Norway a long time ago, and my principles aren't what they should be.

A 'right to be free from excessive punishment'

Posted at 3:41 PM on April 9, 2012 by Bob Collins (6 Comments)
Filed under: Crime and Justice

Last week, I was surprised to hear that a brush fire in the northern suburbs would result in felony charges against the teenagers who apparently caused it.

It's not that I don't think teenagers should be held responsible for their stupid deeds, it's just that getting a felony on your record in Minnesota can ruin a life for a good long time. This is not a forgiving state in such matters, as an afternoon at a pardons board hearing reveals twice a year. A lot of good people who made stupid mistakes pay for it, often beyond reasonable limits.

Today, the Minnesota Court of Appeals issued a key decision that -- at least for now -- could give judges more authority to order expungement not only of court records, but of records held by the Bureau of Criminal Apprehension and the state's executive branch.

"An individual's fundamental rights to obtain employment and housing are affected by a criminal record, as is an individual's right to be free from excessive punishment," the Court of Appeals said in ruling in the case of a then- 20-year old woman in Worthington, who changed a prescription for Robitussin cold syrup in February 2006 from 200 milliliters to 400 milliliters. That's about 40 teaspoons.

She said she did it because she couldn't afford another trip to the doctor for another prescription if the original prescription didn't work. She was the single mother of four children.

The woman, who is not identified, was charged with two felonies and the district court stayed imposition of a sentence, placed her on three years' probation, and ordered her to pay an $879 fine. She was discharged from probation a year early and her remaining fine was forgiven. The original charge was reduced to a misdemeanor.

She's been trying since then to get her felony charge expunged. The court disallowed her first attempt in 2008 because not enough time had passed. She tried again in January 2011, documenting job dismissals because of the conviction.

She presented evidence that she was on the dean's list of a community college, and gave the court a letter from an employer in her support. The Rock Nobles Community Corrections director also submitted a letter not opposing expungement.

But the Nobles County Attorney "objected to the petition on the basis that the stated reason for the expungement, attainment of employment goals, is not a valid reason for expungement, that expungement is not essential to the judiciary's core functions, and that the district court lacked the authority to order expungement of records outside the judicial branch," the Court of Appeals wrote.

The district court ordered the expungement:

It is this Court's opinion that [respondent's] one-time mistake of altering a minor cold medicine prescription in light of [respondent's] successful completion of probation and subsequent reduced offense level, combined with her otherwise clean criminal history and strong showing of her rehabilitative efforts does not justify the [Bureau of Criminal Apprehension] to hinder [respondent's] employment progress for 15 years . . . The District Court has the inherent judicial authority to seal executive branch records and creates a meaningful remedy in cases such as this one.

It might seem like a common-sense decision with a side order of compassion. But the Nobles County Attorney enlisted Minnesota Attorney General Lori Swanson to prevent the widening of expungement authority by the state's judges.

They appealed to the Minnesota Court of Appeals, which today sided with the district court and the woman.

"As compared to the range of other possible criminal offenses, respondent's offense was not serious," Judge Roger Klaphake wrote. "Although appellant stresses that respondent was charged with a felony offense, that offense was reduced by operation of law to a misdemeanor, involved no violence or victims, and the circumstances surrounding the offense suggest that it was not serious."

Klaphake documented the difficulty a felony record can cause:

In respondent's sworn statement attached to her expungement petition, she details her job history, including that she was "fired from H.S.I. after the background check showed [her] felony charges from 2006," she was "turned down at numerous jobs that required background checks," and she eventually accepted a job as a grocery store cashier because "it didn't require a background check." Respondent listed the employers by whom she was denied employment after required background checks, including HyVee, Polaris, Rosenbloom, Spirit Lake Hospital, Windom Hospital, and Jackson County School District. She also stated that she "lost a job at Lakefield Middle School on the Maintenance crew after a background check" and that she "took four classes to become a coach, but was told not to apply for [her] license, because of [her] criminal background."

We agree with the district court that respondent has sufficiently demonstrated difficulties in securing employment. She was fired from jobs, was turned down from jobs, and was told not to pursue jobs because of her criminal background. Appellant appears to suggest that "difficulties" in securing employment should be interpreted to mean "impossibility" in securing employment, but that is not a reasonable interpretation of the word "difficulty."

Judge Klaphake also seemed concerned that the executive branch is storing more criminal data and it's easier for the public to get:

This blossoming in the area of criminal records preservation and dissemination by the executive branch has greatly impacted both the inherent authority of the judiciary and the individual rights of the expungement petitioner. As to the effect on the judiciary, the separation of powers doctrine "is grounded in judicial self-preservation" and "can be neither augmented nor diminished by legislative acts."
...

By permitting the executive branch to maintain and disseminate criminal records that the judiciary has both created and expunged, the authority of the judiciary to perform its judicial function is curtailed. By restricting a district court to an expungement order that is limited to criminal records maintained by the judiciary, when the executive branch maintains and broadly disseminates those same records, the judiciary has, in effect, ceded its role of offering a true remedy to those entitled to it or determining fair punishment of offenders.

The case is likely heading to the Minnesota Supreme Court. As of this afternoon, the woman's felony charge is still on her record, her attorney told me this afternoon. He said his client is "ecstatic" about the ruling, which he said surprised him, too. He had expected to lose.

Here's the Court of Appeals' full opinion in the case.

A constitutional food fight

Posted at 11:49 AM on April 4, 2012 by Bob Collins (8 Comments)
Filed under: Crime and Justice, Politics

Justice may be blind but it's got ears.

Today's big legal story is a group of Appeals Court judges who are ticked off at President Obama for his remarks Monday about the possibility the Supreme Court will strike down his health care law.

Yesterday, an appeals court hearing a health care coverage case, proved that while the branches of government are separate, one can still hit the other in a food fight.

As Lyle Denniston at SCOTUSblog tells it:

At Tuesday's hearing, Judge Smith, according to CBS News, said the President's suggestion that it would be unprecedented for "unelected judges" to strike down a federal law that had won passage in Congress was "not a small matter." He told government lawyer Dana Lydia Kaersvang: "I would like to have from you by noon on Thursday...a letter stating what is the position of the Attorney General and the Department of Justice in regard to the recent statements by the president. What is the authority of the federal courts in this regard in terms of judicial review?"

Today, the Justice Department lawyer is trying to figure out how to write a letter that, basically, says "my boss doesn't know what he's talking about."

Above The Law calls it a "benchslap."

Where do I come down on this? I confess that I'm of two minds. On the one hand, in support of the benchslap, I did get a chuckle out of this (somewhat bizarre) homework assignment. On a more serious note, to the extent that some members of the public might have been misled by President Obama's statements, there was nothing wrong with Judge Smith availing himself of this "teachable moment," to remind the public that federal judges not only have the right, but the duty, to strike down laws that are inconsistent with the Constitution.

On the other hand, President Obama's original remarks amounted to silly political posturing, and perhaps they should have been ignored. It's not shocking that the president made such comments in the first place; the executive is, after all, an icky political branch, and we are in the middle of an election year. But isn't it beneath the dignity of life-tenured Article III deities to dirty their gavel-wielding hands with such ridiculousness? Should Judge Smith have simply ignored the president's ill-considered comments?

Strip searches up close

Posted at 1:02 PM on April 2, 2012 by Bob Collins (5 Comments)
Filed under: Crime and Justice

Unless you've been hauled off to jail lately, you may be unaware that your chance of being strip searched has increased in recent years.

The Associated Press reported today on today's Supreme Court decision that appears to expand the authority to strip search people for minor infractions.

In 1979, the Supreme Court upheld a blanket policy of conducting body cavity searches of prisoners who had had contact with visitors on the basis that the interaction with outsiders created the possibility that some prisoners got hold of something they shouldn't have.

For the next 30 or so years, appeals courts applying the high court ruling held uniformly that strip searches without suspicion violated the Constitution.

But since 2008 -- and in the first appellate rulings on the issue since the Sept. 11, 2001, terrorist attacks -- appeals courts in Atlanta, Philadelphia and San Francisco decided that authorities' need to maintain security justified a wide-ranging search policy, no matter the reason for someone's detention.

The court ruled today in the case of a man who was stopped for an unpaid fine, taken to jail and strip searched.

In today's ruling, Justice Anthony Kennedy provided an illuminating glimpse on how to provide a strip search:

The Essex County Correctional Facility, where petitioner was taken after six days, is the largest county jailin New Jersey. App. 70a. It admits more than 25,000 in- mates each year and houses about 1,000 gang members at any given time. When petitioner was transferred there, all arriving detainees passed through a metal detector and waited in a group holding cell for a more thorough search.When they left the holding cell, they were instructed to remove their clothing while an officer looked for body markings, wounds, and contraband. Apparently without touching the detainees, an officer looked at their ears,nose, mouth, hair, scalp, fingers, hands, arms, armpits, and other body openings.

This policy applied regardless of the circumstances of the arrest, the suspected offense, or the detainee's behavior, demeanor, or criminal history. Petitioner alleges he was required to lift his genitals, turnaround, and cough in a squatting position as part of the process. After a mandatory shower, during which his clothes were inspected, petitioner was admitted to the facility.

He was released the next day, when the charges against him were dismissed.

"People detained for minor offenses can turn out to be the most devious and dangerous criminals," Kennedy wrote in the decision, which -- not surprisingly -- was made on a 5-to-4 vote, with conservatives lining up against the liberal members.

Justice Stephen Breyer wrote the dissent, which -- once you get past the legal niceties -- amounts to "are you kidding me?"

Amicus briefs present other instances in which individuals arrested for minor offenses have been subjected to the humiliations of a visual strip search. They include a nun, a Sister of Divine Providence for 50 years, who was arrested for trespassing during an antiwar demonstration. Brief for Sister Bernie Galvin et al. as Amici Curiae 6. They include women who were strip-searched during periods of lactation or menstruation. Id., at 11-12 (describing humiliating experience of female student who was strip searched while menstruating); Archuleta v. Wagner, 523 F. 3d 1278, 1282 (CA10 2008) (same for woman lactating). They include victims of sexual violence. Brief for Domestic Violence Legal Empowerment and Appeals Project et al. as Amici Curiae. They include individuals detained for such infractions as driving with a noisy muffler, driving with an inoperable headlight, failing to use a turn signal, or riding a bicycle without an audible bell.Brief for Petitioner 11, 25; see also Mary Beth G., supra, at 1267, n. 2 (considering strip search of a person arrested for having outstanding parking tickets and a person arrested for making an improper left turn); Jones v. Edwards, 770 F. 2d 739, 741 (CA8 1985) (same for violation of dog leash law). They include persons who perhaps should never have been placed in the general jail population in the first place. See ante, at 2 (ALITO, J. concurring) ("admission to general jail population, with the concomitant humiliation of a strip search, may not be reasonable" for those "whose detention has not been reviewed by a judicial officer and who could not be held in available facilities apart from the general population").

The people who fight for their unemployment (continued)

Posted at 12:05 PM on April 2, 2012 by Bob Collins (3 Comments)
Filed under: Crime and Justice, Economy

The Minnesota Court of Appeals ruled today that a woman, who was encouraged by her boss to quit her job and become an independent contractor (self employed) instead, is entitled to unemployment benefits.

It's the case of Heather Rowan of Detroit Lakes, and it's the type of case that makes you wonder how many Heather Rowans are out there who gave up rather than fight the system.

Ms. Rowan was employed as a painter by a general contractor, Dream-It in Detroit Lakes, which cut her hours in 2009 and laid her off. Her employer suggested if she quit and formed her own LLC (limited liability corporation), she could get paid based on the amount of painting she did rather than on a per-hour basis and make back the money her reduced hours took away.

When she refused a job because she thought the per-square-foot painting payment amount -- $180 for a week --was too small, the company offered her no more jobs.

The state Department of Employment and Economic Development ruled her ineligible for unemployment benefit because self-employed workers aren't eligible. An unemployment law judge at first reversed the ruling, then ruled she not only was not eligible, but had to pay back more than $5,000 of unemployment benefits she received.

But today the Court of Appeals ruled she had good reason to quit and, thus, should be allowed to collect unemployment.

"Dream IT was responsible for encouraging Rowan to form her LLC because Herman (her boss) emphasized that she would not have to work as many hours to earn more money, but he did not inform her that, by so proceeding, she would no longer be eligible for unemployment benefits and that Dream It would not be required to offer her work," Judge Roger Klaphake wrote in today's decision.

The court said any reasonable employee would have felt compelled to quit in the same situation.

Today's Supreme Court audio

Posted at 2:54 PM on March 28, 2012 by Bob Collins (2 Comments)
Filed under: Crime and Justice

Here's today's final block of oral arguments in the Affordable Health Care Act before the U.S. Supreme Court.

Here is the transcript of today's arguments.

In this afternoon's arguments it appeared the majority of the nine justices do not favor striking down the part of the law that expands Medicaid.

In earlier arguments, it appeared the judges based their questions on the assumption they'll kill the part of the law that requires people to have health, insurance, the Associated Press reported.

The first of the day's two sessions was unusual in that it assumed an answer to the central question in the historic health care case: that the requirement that Americans carry health insurance or pay a penalty will be struck down.

In their questions, liberal justices Sonia Sotomayor, Elena Kagan, Ruth Bader Ginsburg and Stephen Breyer took issue with Paul Clement, the lawyer for 26 states seeking to have the Patient Protection and Affordable Care Act tossed out in its entirety.

"What's wrong with leaving this in the hands of those who should be fixing this?" asked Sotomayor, referring to Congress.

Chief Justice John Roberts also spoke about parts of the law that "have nothing to do with any of the things we are" talking about.

Here is the audio from that portion of today's arguments:

Here's the transcript.

Supreme Court: No new trial in long-BNSF case

Posted at 10:48 AM on March 28, 2012 by Bob Collins (9 Comments)
Filed under: Crime and Justice

It's hard to believe it's been nine years since four people met their end at the front of a Burlington Northern train that wiped out their car at the railroad crossing on Ferry Street in Anoka. The guard gate never came down, the lights never illuminated and the four young people never had a chance.

Brian Frazier, 20, of Ham Lake, Bridgette Shannon,17, of Ramsey, Corey Chase, 20, of Coon Rapids, and Harry Rhoades Jr., 19, of Blaine were killed.

In 2008, an Anoka County jury awarded the victims' families $21.6 million. A Star Tribune investigation found evidence of tampering in some of the crash data provided in the trial. after the families' attorneys argued that the deadly collision was caused by a malfunctioning signal.

Witnesses said the car -- a Cavalier -- was in its proper lane when it was hit, disputing the railroad's assertion it had driven around lowered gates.

The Court of Appeals ordered a new trial because the jury had been instructed to apply a "reasonable person standard of care" rather than a standard based on compliance with federal regulation. Family members argued BNSF was working the judicial system.

A court sanctioned the railroad because it allowed destruction of an "event recorder" system at the crossing, and failed to preserve a tape of an event recorder in the locomotive.

Today, the Minnesota Supreme Court put an end to it, overturning the Court of Appeals and ruling the railroad will not get a new trial. Justice Alan Page said the instructions to the jury and the verdict did not "affect the fairness and integrity of the proceedings."

In his opinion today, Justice Page called out BNSF:

Our review of the record indicates that the allegedly erroneous standard of care was not limited to the disputed jury instruction and special verdict question; rather, it pervaded the entire trial. Nor were appellants the only parties to rely on the common-law standard of care. Instead, BNSF itself sought to convince the jury that it was not negligent under a common-law, rather than a regulatory-compliance, standard of care.

From its opening statement to the jury, BNSF asserted that the gates at the Ferry Street crossing worked, and worked properly, on the night of the accident:

This unfortunate accident happened as a result of the inexcusable conduct of a 19-year-old young man who disregarded the flashing lights and the down crossing gate, who disregarded the oncoming train with the whistle sounding and the lights flashing and drove around a fully-lowered crossing gate in front of the train. . . . [T]he evidence will show [] that this state-of-the-art BNSF signal system provided proper and adequate warning and was working as intended [on] September 26, 2003.

Page said the railroad argued its entire case on "common law negligence" and then demanded a new trial on an entirely different theory -- regulatory compliance.

He said granting a new trial to BNSF after it "knowingly tried the case under (what we have assumed, but not determined, to be) the wrong standard" would be unfair.

Here's the full decision.

"I can tell you that there wasn't a lot of screaming and shouting," Mark Bradford, an attorney for the family of Brian Frazier, the driver of the car, said about a conference call with families of the victims after the ruling today. "Everyone was fairly sullen because everyone knows nothing will bring back their kids."

Bradford said he doesn't believe there are any lingering issues that might lead Burlington Northern Santa Fe to push the case to the U.S. Supreme Court.

"The decision didn't really rest on a lot of legal technical issues," he said. "It was a common sense decision that when you as a party choose to litigate and follow a strategy, when that strategy doesn't turn out to benefit your client and you end up with an adverse decision, you can't come in and try again under a new strategy. You sink or swim with the result. This was a common-sense, well-reasoned decision that didn't need a lot of legal analysis."

There was no dissent among the seven Supreme Court justices in the case.

(update 12:33 p.m.) - In a statement to MPR News this afternoon, BNSF spokeswoman Amy McBeth conceded the case:

We have deep sympathy for the families of the individuals involved in this tragic event and are sad for their loss.

While we are disappointed with the Supreme Court's decision, we respect the judicial process and the finality of the decision.

Trayvon Martin in song

Posted at 2:30 PM on March 27, 2012 by Bob Collins
Filed under: Arts, Crime and Justice

Eventually, every major news story reaches the "YouTube song" stage. The Trayvon Martin killing has now reached that point with MoveOn's political action committee postingd this today:

And Chaka Khan today released this video tribute...

Eric Benet, Kelly Price, Kenny Lattimore, Angela Bassett, Terry Crews, and Boris Kodjoe are among the artists on that one.

Today's Supreme Court audio

Posted at 12:26 PM on March 27, 2012 by Bob Collins (22 Comments)
Filed under: Crime and Justice, Health, Politics

Here's this morning's audio from the arguments in the Affordable Care Act challenge at the U.S. Supreme Court:

Find the transcript of today's hearing here.

Most of the major experts on the Supreme Court seem to be suggesting whatever way the issue goes, it'll be a 5-to-4 decision.

At SCOTUSblog, Tom Goldstein kept an eye on Justice Kennedy, considered by many to be the likely swing vote.

Towards the end of the argument the most important question was Justice Kennedy's. After pressing the government with great questions Kennedy raised the possibility that the plaintiffs were right that the mandate was a unique effort to force people into commerce to subsidize health insurance but the insurance market may be unique enough to justify that unusual treatment. But he didn't overtly embrace that. It will be close. Very close.

For the record, Justice Clarence Thomas did not ask a question at today's hearing. He has not asked a question at the court in six years.

The case of the unknowing spouse and the mortgage

Posted at 11:41 AM on March 26, 2012 by Bob Collins (3 Comments)
Filed under: Crime and Justice

File this one under "nice try."

The Minnesota Court of Appeals today rejected a Grasston man's attempt to stop foreclosure proceedings against him because he listed himself as "single" on the mortgage application even though he was married.

Thomas Graikowski of Grasston refinanced his mortgage in 2006, two days after he married a woman who didn't know about the mortgage, didn't attend the closing, and didn't sign the loan application.

He defaulted on the $170,000 loan a year later, the marriage ended a year after that, and two years after the divorce, the mortgage company foreclosed on both of them. He attempted to have the mortgage declared void because his then-wife didn't sign it.

Under Minnesota law, the Appeals Court said, the Graikowski's mortgage is void because it lacked his wife's signature, but it said the law can't be used by someone who signed a mortgage to avoid repaying it.

Not that it hasn't been tried before. The court cited a Minnesota Supreme Court case in which a Buhl man, Stanley Bozich, declared himself "single" on a mortgage application even though he was married. His wife died and he remarried, then he attempted to cancel the mortgage on the basis that his new wife didn't sign it.

The state Supreme Court had a word for that: "fraud."

In today's ruling, the Court of Appeals said Mr. Graikowski misrepresented his marital status either intentionally or unintentionally, and can't walk away from the obligation because of it.

Here's the full opinion.

The moment when your friends die in a drunk-driving crash

Posted at 10:33 AM on March 22, 2012 by Bob Collins (5 Comments)
Filed under: Crime and Justice

One of every seven Minnesota drivers has a conviction for driving under the influence of alcohol. The number who actually drive drunk, no doubt, is much higher. It's unlikely they haven't heard the warnings against drunk driving, but they drink and drive anyway.

Will something like this change their habits? A woman involved in a drunk driving crash that killed her two friends hopes so.

Desaleen James, 18, was the only survivor of a crash during a night of drinking in Silver Spring, Maryland. She filmed the crash and is trying to get people's attention with it.

(Note: WUSA has since made the video, UNembeddable, which seems to betray their effort to help the young woman make a difference by publicizing it)

Vigilante justice, the law, and the jury

Posted at 1:33 PM on March 21, 2012 by Bob Collins (4 Comments)
Filed under: Crime and Justice

Some of the nation's backers of the "Stand Your Ground Law," under which a Florida man has so far escaped prosecution, appear to be rewriting history.

George Zimmerman, 28, apparently shot 17-year-old Trayvon Martin to death last month after pursuing him and then claiming self defense.

The law, a version of which was vetoed last month by Gov. Mark Dayton in Minnesota, expands the "castle doctrine" in matters of self defense.

Zimmerman was warned by a 911 operator not to pursue Martin, who was unarmed.

Florida Sen. Durrel Peaden, who wrote the law in the state, says Zimmerman shouldn't be protected by the law because he ignored police advice to stay away. "They got the goods on him. They need to prosecute whoever shot the kid," Peaden tells the Miami Herald. "He has no protection under my law."

Florida's expanded Castle Doctrine law passed in 2005. Two years later, the nationwide effort -- partly motivated by Florida's law -- found a hero in Joe Horn.

In Pasadena, Texas,. Horn chased down burglars of his neighbor's house, and shot them to death. A grand jury refused to indict him, Horn was hailed as a hero, and -- as Time magazine reported -- it was considered a victory for the expanded Castle Doctrine.

"If the Castle Doctrine were interpreted with the kind of sobriety and restraint espoused by my instructor (and responsible gun owners), it would be a good law," Nathan Thornburgh wrote. "But by celebrating its most overreaching interpretations, those who make a hero out of Joe Horn will ultimately only succeed in ensuring that it isn't."

Chris Kromm of the Institute for Southern Studies, notes that two shootings per week occurred under the law by 2009.

In Texas in 2007, Joe Horn also claimed that "he was afraid for his life" in justifying his fatal shooting. But like the Martin case, the 911 tapes are damning in showing that Horn's life clearly was never at risk -- he, like Zimmerman, pursued the supposed burglars, even though they weren't even on his own property.

But Horn apparently knew the law offered him no protection for his actions. It didn't need to. He had a grand jury to do that.

In Onamia, nothing screams 'fun' like a bomb

Posted at 10:43 AM on March 21, 2012 by Bob Collins (4 Comments)
Filed under: Crime and Justice

In stiff competition, today's "say, what?" news award goes to Onamia where James Richard Thoen, 23, of Onamia, has been charged with possession of bombs, bomb-making materials and a sawed-off shotgun, according to the Mille Lacs Messenger.

Acting on a tip, police found a sawed-off shotgun and "bomb-making materials including plastic and metal pipes, BBs, rubber balls, plastic balls, bullets, shotgun shells and shell components, gunpowder and other items."

He apparently was turned in by an acquaintance who couldn't take a little joke.

According to the complaint, the reporting party told Barnes that Thoen threw a bomb in her general direction while she was sitting in a lawn chair in her yard. She was uninjured, but the bomb went off and blew a leg off the lawn chair.

He could get 20 years in prison if he's ever found.

Seat-belt law challenge turned aside by Court of Appeals

Posted at 12:06 PM on March 20, 2012 by Bob Collins (2 Comments)
Filed under: Crime and Justice

In 2009, Minnesota changed its mandatory seat belt law to allow police to stop you just for not wearing a seat belt. Previously, you had to be stopped for another violation in order to be cited for failure to wear seat belts.

Wade Wendorf lost his court case about the ticket he got in May 2010, and this week, he lost his claim at the Minnesota Court of Appeals that the law is vague. He cited a reference on the state revisor's version of the law that referenced the earlier language.

(b) A person who is 15 years of age or older and who violates paragraph (a), clause (1) or (2), is subject to a fine of $25. The driver of the passenger vehicle or commercial motor vehicle in which the violation occurred is subject to a $25 fine for a violation of paragraph (a), clause (2) or (3), by a child of the driver under the age of 15 or any child under the age of 11. A peace officer may not issue a citation for a violation of this section unless the officer lawfully stopped or detained the driver of the motor vehicle for a moving violation other than a violation involving motor vehicle equipment. The Department of Public Safety shall not record a violation of this subdivision on a person's driving record."

But the Court of Appeals ruled it doesn't matter -- driving without a seat belt, it suggested, is driving without a seat belt:

The relevant difference between the two provisions--whether a peace officer may stop a motorist solely on the basis of a seat-belt violation--has no bearing on whether a motorist may drive without a seat belt. Thus, an ordinary person could not have been confused about whether driving without a seat belt is prohibited.

The court also said it was clear the revisor's inclusion of the section above was a note for historical purposes on the changing nature of the state's seat belt law.

Here's the decision.

The case of the predatory offender and the unshoveled sidewalk

Posted at 12:46 PM on March 12, 2012 by Bob Collins (1 Comments)
Filed under: Crime and Justice

An unshoveled sidewalk is not enough evidence to send a man to prison for two years for failing to register as a predatory offender.

The Minnesota Court of Appeals today overturned the conviction of Joey Nelson of Pine County, who was convicted in a one-day trial after authorities said he was no longer living at his apartment in the county and had moved elsewhere. Registered offenders are required to notify officials five days before moving to another area.

The case shows how easy it can be to send an offender back to prison on the thinnest of evidence.

The authorities became suspicious after Nelson was stopped by police in Texas on February 9, 2010. An investigator for the Pine County Sheriff's Office visited Nelson's home the same day and found an unshoveled sidewalk after a snowfall. On the investigator's testimony, Nelson was sent to prison.

But the Court of Appeals said prosecutors didn't provide any evidence of a new address for Nelson. "Rather, the state simply asked the jury to infer that Nelson had a new primary address based on evidence that Nelson did not appear to be present at his registered primary address on February 9, 2010," the court said.

Far from reasonable doubt, it said, there were other circumstances that could explain Nelson being in Texas on a given day, and an unshoveled sidewalk in Pine County:

A second reasonable inference is that Nelson simply was visiting Texas on a short-term basis and was intending to return to Pine City to continue living at his registered primary address. That a person is present in Texas does not necessarily imply that the person has moved his or her primary residence to Texas. Many persons who are not residents of Texas surely are present within that state on any given day.

A third reasonable inference is that Nelson had a secondary address in Texas where he regularly or occasionally stayed overnight when he was not at his primary address in Pine City. But there is no requirement for persons required to register under section 243.166 to register secondary addresses located outside of Minnesota. See Minn. Stat. § 243.166, subd. 4a(a)(2), (b); see also id., subd. 1a(i) (defining secondary address).

A fourth reasonable inference is that Nelson had departed from his registered primary address without any intention to return but with an intention to either become homeless or to search for a new primary address. Such a person is required by section 243.166 to register, but that requirement springs from a subdivision other than subdivision 3(b), which is the statutory basis of the offense charged in this case. See Minn. Stat. § 243.166, subd. 3a. The state did not attempt to prove that Nelson had violated the requirements of subdivision 3a.

Unanswered in the decision, of course, is how a properly-instructed jury of reasonable people couldn't see the several possibilities constituting "reasonable doubt."

Here's the full decision.

Court: Aunts have no visitation rights with nieces

Posted at 1:00 PM on March 1, 2012 by Bob Collins (1 Comments)
Filed under: Crime and Justice

Sorry, aunts. You don't have any right to visit your nieces and nephews, the Minnesota Supreme Court ruled this week in the case of a woman who wanted visitation rights with the daughter of her now-deceased twin sister.

The court ruled on the appeal of Kelli Rohmiller. After her sister and her boyfriend, Andrew Hart (the girl's father) split up, the girl and her mother lived with Rohmiller for five weeks. But when Ms. Rohmiller's sister died, Hart was awarded custody of the girl and cut Rohmiller off from visiting her niece.

A district court granted Rohmiller and her father unsupervised visitation with the girl, but the Court of Appeals reversed the ruling, saying Minnesota law does not grant a right to visitation to aunts.

In Minnesota, the law grants visitation rights to grandparents and great-grandparents as well as people with whom a child has lived for at least two years if the parent of a child is deceased. But Supreme Court Justice Lori Gildea said neither provision applies in this case.

"If the legislature wanted to include aunts as a class of individuals who could petition for visitation, it could have," she wrote.

Rohmiller said it would be "absurd" for the legislature to exclude step-parents, step-grandparents, step-siblings, cousins and "significant others" from visitation simply because they had not lived with a child for two years because "there is no magic relationship that is formed after two years."

The Supreme Court rejected the argument. "We have not found any reported Minnesota cases in which, over a fit custodial parent's objection, visitation was awarded to a non-parent who was not standing in loco parentis (ed. note: had parenting functions) with the child," Gildea said.

Since the father allowed the girl's grandfather to visit her, the Court said its decision this week would not prevent Rohmiller from being present when he does.

Here's the full opinion.

Weekly Roundtable

Posted at 3:55 PM on February 24, 2012 by Bob Collins (1 Comments)
Filed under: Crime and Justice, Politics

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Weighing the freedom to lie

Posted at 3:49 PM on February 22, 2012 by Bob Collins (6 Comments)
Filed under: Crime and Justice

It remains, in my observation, a tremendous disservice to the idea of an informed and engaged citizenry, that the U.S. Supreme Court doesn't allow cameras or live broadcasts during arguments. There is no more interesting debate in all of government than the ones at the U.S. Supreme Court.

Today's arguments about whether it should be a crime to claim military service and honor when none exists could spawn a more interesting public debate than anything in the public arena over the last few weeks.

As it is, we're left with only the transcripts of today's hearing (which you can find here).

As in most matters of suppressing speech, it provided an opportunity for the justices to play "what if?".

Justice Sotomayor:

During the Vietnam War, a protester holds up a sign that says, "I won a Purple Heart -- for killing babies." Knowing statement. He didn't win the Purple Heart. As a reader, I can't be sure whether he did and is a combat veteran who opposes the war, or whether he's a citizen protesting the war.

Is that person, if he's not a veteran, having received the medal, is he liable under this act?

Chief Justice Roberts:

Well, where do you stop? I mean, there are many things that people know about themselves that are objectively verifiable where Congress would have an interest in protecting. High school diploma. It is a crime to state that you have a high school diploma if you know that you don't. That's something you can check pretty easily. And Congress can say: We want people to finish high school. It's a big thing to have a high school diploma. So we want to make sure nobody goes around saying they do when they don't.

Justice Alito:

What's the principal reason for drawing the line there? Suppose the statute also made it a crime to represent falsely that someone else was the recipient of a military medal, so that if someone said falsely and knowingly that a spouse or a parent or a child was a medal recipient, that would also be covered?

Justice Kagan:

General, what about these State statutes -- there are more of them than I thought that there would be -- that say no demonstrable falsehoods by a political candidate in a political race, and prohibit demonstrable falsehoods by political candidates? How would your analysis apply to those? Would they come out the other end as constitutional?

... Well, suppose it says demonstrable falsehoods about yourself just about your qualifications, about what you've done in your life, your -- you know, whether you have a Medal of Honor, whether you've been in military service, whether you've been to college. So any demonstrable statement that a candidate, political candidate, makes about himself.

Where will all this lead. On his excellent SCOTUSblog, Lyle Denniston, said the court appears to be trying to fix the law, rather than scrap it:

Libby, the lawyer for the convicted Californian who had lied about receiving the Medal of Honor, Xavier Alvarez, had to struggle when the Justices tried to draw out of him alternative ways that Congress might have chosen to protect military medals from being defiled by lies about receiving such decorations. And, aside from his unaccountable concession (even he called it a concession) that the Act may not "chill" any protected speech, Libby made a significant misstep in his inability to persuade the Justices that striking down the Act would not also imperil other laws designed to regulate lying, such as the laws against giving false statements during government investigations.

For Libby, his best moment came in exchanges with Justice Antonin Scalia and the Chief Justice, after Scalia had wondered whether Congress, in order to try to deter lying about medals, could constitutionally approve the granting of a "medal of shame" to those "charlatans" who engaged in such lies. The lawyer said that certainly was something that the government could do. The Chief Justice immediately challenged him, suggesting that the government would not have such power under Libby's theory in this case. To that, the attorney easily responded: "Well, there is a significant difference between a criminal sanction that puts someone in prison versus simply exposing them for what they are, which is a liar."

The High Court is not a particularly tech- or media-savvy institution. If it were, someone might have pointed out that in the age of 24/7 news, Twitter, Facebook, and blogs, few political liars get away with telling a whopper,

Appeals Court: Facebook photos aren't harassment

Posted at 11:42 AM on February 22, 2012 by Bob Collins
Filed under: Crime and Justice

The Minnesota Court of Appeals says a Chisago County man cannot sue a person who put pictures of him on a Facebook page.

It's an unpublished opinion, so it may not prevent you from suing, but the court rejected the complaint of Aaron Olson, who sued his uncle who had put old pictures of him on his Facebook page, according to the court's decision (available here).

Respondent testified that appellant was not his "friend" on Facebook and that he intended his Facebook page to be viewed only by friends and not by appellant. Respondent claims that appellant had "unauthorized" access to his Facebook page, but respondent also testified that any member of the public could have accessed his page via a simple name search. Appellant, who lives with his mother, A.O., testified that he initially accessed respondent's Facebook page via his mother's Facebook account when he used her computer and she had left her Facebook page open. But appellant stated in his appellate brief that he later obtained copies of respondent's Facebook page for the HRO hearing by conducting a search on Facebook that any member of the public could have done.

But Olson didn't argue his point on the basis of the one violation that usually embroils Facebook: privacy. Instead, he argued posting the pictures constituted "harassment," a charge the Court of Appeals easily turned aside:

To constitute harassment, words must have a substantial adverse effect on the safety, security, or privacy of another. Comments that are mean and disrespectful, coupled with innocuous family photos, do not affect a person's safety, security, or privacy -- and certainly not substantially so. The district court did not err by determining that the evidence submitted by appellant did not satisfy the statutory definition of harassment.

(h/t: Drew Gereats)

Alcohol in the cockpit

Posted at 11:59 AM on February 20, 2012 by Bob Collins (1 Comments)
Filed under: Aviation, Crime and Justice

For the second time in a couple of weeks, a flight crew on an airline was pulled off a flight, possibly because of alcohol consumption.

Pinnacle Airlines pulled the pilot, co-pilot, and flight attendant from its Grand Forks to Minneapolis flight yesterday. The Park Rapids Enterprise said the suspicion is that at least one of the crew members was drunk, or had been drinking within 12 hours of the flight, against company policy.

The action comes four days after Frontier Airlines intercepted a suspected drunk pilot.

Northwest Minnesota and Eastern North Dakota is responsible for one of the most famous examples of drunk flying. The crew of a Northwest Airlines flight from Fargo flew drunk in 1990, and did prison time for it.

In 2009, I met one of the participants in that case. Here's the post I wrote about it:

"Tell those people up in Minnesota 'I'm really sorry,'" Joe Balzer said to me as I left our meeting at the EAA air show in Oshkosh a few days ago. "I had my worst day," he said of the day he committed what many, perhaps, believe to be an unforgiveable act. He and two others on the flight crew of a Northwest Airlines flight with 91 people aboard, were drunk when they flew from Fargo to Minneapolis.

He was arrested, convicted, and sent to prison.

Before the flight, he and his crew spent hours in a Moorhead bar, pounding down rum and Cokes and beer.

"That evening I was full of fear," he said. "I was on probation from Northwest Airlines, things weren't going well with the crew, we were a little dysfunctional. It was a terrifying event. It was the culmination of the ultimate struggle. A year before I had a blackout in Los Angeles as a pilot for Eastern Airlines. I tried to quit drinking on my own... I didn't have a support group, I didn't have a 12-step group, I wasn't seeking wise counsel from others. My chances of success were not very good."

Balzer, who's just released his book, "Flying Drunk", says he got drunk for the first time when he was three years old, drinking with his grandfather.

The low point of his life was hours after his flight landed in Minneapolis. "There we were in (Northwest Airline's) headquarters and the results came back and they said, 'All three of you guys tested positive for alcohol,' and I thought, 'This is bad, I'm going to lose my job and I'm going to lose my pilot's license.' That night I was stranded in a hotel in Minneapolis and I paced it off in the room. I walked back from the window and I thought, 'If I get going good I can get through that window and do a swan drive.' That's how ashamed I was about what I'd done. I let myself down and I knew that, but I looked at that window and I thought, 'This isn't the right thing to do; it'd be very selfish.' I had a good cry from deep inside and I just decided to accept responsibility and change my life."

Nineteen years after the incident, and years after prison in Georgia, Balzer rebuilt his aviation ratings. "One day I walked into American Airlines after they saw me speak. I'd been rejected by over a hundred different airlines." He was hired.

Not all airline pilots have forgiven Balzer. After the arrests and trial in Minneapolis, airline pilots were the target of jokes from late-night comedians. "What matters is I own my part and I've made amends to my professional brothers who made a living," he said. "At the time I thought I was OK to fly and I know today with the clarity of a recovering person... I had no business being near an airplane that morning. Had it happened before? Yes. Does it happen with pilots? Yes. It's a problem with brain surgeons, and pastors, and school teachers, and everyone. Ninety-eight percent of alcoholics show up and do a job. There will be pilots who will still hold it against me personally and all I can do is say 'I'm sorry.'"

He's still flying for the airline and still speaking to people, knowing that there's probably a drunk in the audience. "The pilot who knows he has a problem is really playing with fire. Alcoholism is a 100-percent fatal disease. It's very important for pilots who have scared themselves ... just like I did out in Los Angeles ... if people are having episodes like that and finding themselves with DWIs, they need to get some help," he said.

One of his messages to airline pilots is seeking help doesn't have to involve losing a career. He says the FAA, pilots unions, and the airlines have created programs for recovery.

"First they can save their lives. Then they can save their careers," he said.

Listen to the interview:

Teenage drinkers and the parents who cover for them

Posted at 10:34 AM on February 16, 2012 by Bob Collins (10 Comments)
Filed under: Crime and Justice

A CBS affiliate in Washington recently set out to prove that there's a youth alcohol problem in the District. What it didn't expect to uncover is that it has a "parenting" problem too.

Reporter Andrea McCarren was forced off the air in the backlash against the reports she aired.

"At first I was frightened and then I became angry," McCarren told CBS News this morning. "It felt like an orchestrated Facebook and Twitter campaign of hate. People put my home address on the internet. There were calls for revenge and retaliation against my family. I'm now in about my 27th year as a reporter and I have never seen anything like this. It seems like these suburban, affluent kids have simply never been told 'no.' They have an inflated sense of entitlement. They feel entitled to cell phones, computers, cars, and in this case, they appear to feel entitled to doing something illegal, which is drink underage of 21."

"One of the most memorable things, was at an underage drinking party that was busted by police, one of the parents showed up to collect his son and he said right in front of police, 'Why didn't you run?'"

The citizen's weapon: A smartphone

Posted at 12:43 PM on February 13, 2012 by Bob Collins (7 Comments)
Filed under: Crime and Justice

Maybe someday, a police department will logically explain why it has such a problem with people lawfully filming them.

It's become an increasing problem as smartphones become more prevalent.

In Baltimore, the Baltimore Sun reported yesterday, a department-wide directive issued Friday instructed officers not to arrest people who are lawfully videotaping them.

Boing Boing reports today, however, that when someone tried to film police overnight, he got hit with a loitering charge.

"We feel that anything that's going to have a chilling effect on an officer moving -- an apprehension that he's being videotaped and may be made to look bad -- could cost him or some citizen their life," Jim Pasco, executive director of the Fraternal Order of Police., told NPR when it inquired last year.

A man in Boston made a federal case out of the issue last year, and won when the U.S. Court of Appeals ruled his arrested for filming was a violation of the First and Fourth Amendments:

"[I]s there a constitutionally protected right to videotape police carrying out their duties in public? Basic First Amendment principles, along with case law from this and other circuits, answer that question unambiguously in the affirmative."

"Glik filmed the defendant police officers in the Boston Common, the oldest city park in the United States and the apotheosis of a public forum. In such traditional public spaces, the rights of the state to limit the exercise of First Amendment activity are 'sharply circumscribed.'"

"[A] citizen's right to film government officials, including law enforcement officers, in the discharge of their duties in a public space is a basic, vital, and well-established liberty safeguarded by the First Amendment."

"Gathering information about government officials in a form that can readily be disseminated to others serves a cardinal First Amendment interest in protecting and promoting 'the free discussion of governmental affairs.'"

The trend isn't just ensnaring regular folks with cellphones; it's netting professional journalists, too. In Miami, for example, Carlos Miller, a member of the National Press Photographers Association, was arrested two weeks ago when he filmed police breaking up Occupy Miami protests. The police also deleted the video he took -- or thought they had.

In Illinois, a House committee last week approved a bill that allows people to film police.

Why is this important?

Tribe sues beer makers over alcoholism

Posted at 3:21 PM on February 9, 2012 by Bob Collins (9 Comments)
Filed under: Crime and Justice

Whose fault is the high rate of alcoholism on Indian reservations?

The Oglala Sioux Tribe of South Dakota today filed suit against beer makers, seeking $500 million in damages for the cost of health care, social services and child rehabilitation caused by alcoholism.

The AP reports:

The lawsuit alleges that the beer makers and stores sold to Pine Ridge's Indian population, knowing they would smuggle the alcohol into the reservation to drink or resell. The beer makers supplied the stores with "volumes of beer far in excess of an amount that could be sold in compliance with the laws of the state of Nebraska" and the tribe, tribal officials allege in the lawsuit.

The Connecticut-sized reservation has struggled with alcoholism and poverty for generations, despite an alcohol ban in place since 1832. Pine Ridge legalized alcohol in 1970 but restored the ban two months later, and an attempt to allow it in 2004 died after a public outcry.

The lawsuit says one in four children born on the reservation suffer from fetal alcohol syndrome or fetal alcohol spectrum disorder. The average life expectancy is estimated between 45 and 52 years, the shortest in North America except for Haiti, according to the lawsuit. The average American life expectancy is 77.5 years.

'Stand your ground bill' advances at Capitol

Posted at 10:37 AM on February 9, 2012 by Bob Collins (6 Comments)
Filed under: Crime and Justice, Politics

One of the first floor debates of any significance in the Minnesota Senate this session isn't going to be about football stadiums. It'll be something far more important: Do Minnesotans have an obligation to flee when faced with danger?

A Minnesota Senate committee this morning sent the so-called Defense of Dwelling and Person Act to the Senate floor on a party-line vote.

There are many elements of the bill (full text here), but this is the big one:

Subd. 2. Circumstances when authorized. (a) The use of deadly force by an individual is justified under this section when the act is undertaken:
(1) to resist or prevent the commission of a felony in the individual's dwelling;
(2) to resist or prevent what the individual reasonably believes is an offense or attempted offense that imminently exposes the individual or another person to substantial bodily harm, great bodily harm, or death; or
(3) to resist or prevent what the individual reasonably believes is the commission or imminent commission of a forcible felony.
(b) The use of deadly force is not authorized under this section if the individual knows that the person against whom force is being used is a licensed peace officer from this state, another state, the United States, or any subordinate jurisdiction of the United States, who is acting lawfully.
Subd. 3. Degree of force; retreat. An individual taking defensive action pursuant to subdivision 2 may use all force and means, including deadly force, that the individual in good faith believes is required to succeed in defense. The individual may meet force with superior force when the individual's objective is defensive; the individual is not required to retreat; and the individual may continue defensive actions against an assailant until the danger has ended.

In many ways, the legislation wouldn't be possible, if not for a man in Apple Valley who shot a gang friend to death.

In 1999, the Minnesota Supreme Court ruled that there is no such requirement in Minnesota to retreat inside a dwelling. It ruled in the case of Tony Carothers, who shot a gang enforcer six times in his mobile home in Apple Valley after an argument over $20 in a card game in 1967. He was given a 14-year sentence.

In instructing a jury, a trial court judge said Carothers had a duty to first flee a self-defense situation, but Justice Russell Anderson overturned the conviction, warning, however, that it's not a license to kill:

We emphasize that a person claiming defense of dwelling is still subject to strictures insuring the reasonableness of his or her behavior. Defense of dwelling and self-defense within the dwelling serve a defensive and not offensive purpose, and do not confer a license to kill or to inflict great bodily harm merely because the offense occurs within the home. It may be more reasonable for a person to advance towards or retreat from a danger within his or her home in different circumstances, and that decision should be left to the jury. When faced with a defense of dwelling claim, the jury must determine (1) whether the killing was done to prevent the commission of a felony in the dwelling, (2) whether the defendant's judgment as to the gravity of the situation was reasonable under the circumstances, and (3) whether the defendant's election to defend his or her dwelling was such as a reasonable person would have made in light of the danger to be apprehended.

This is the Castle Doctrine. Anderson's decision gave Minnesotans the right to kill someone invading a home, removing the obligation to flee first. The latest legislation extends the protections in the home to a person outside of it.

The bill was heading to the Senate floor last year, too, until several police chiefs and county attorneys held a news conference objecting to it.

Judge orders man to take his wife on a date

Posted at 2:31 PM on February 8, 2012 by Bob Collins (18 Comments)
Filed under: Crime and Justice

Is this cute or horrifying? You decide

In Broward County, Florida, a judge has ordered a man to take his wife to dinner, bowling, and then marriage counseling.

"He's going to stop by somewhere and he's going to get some flowers," Judge John "Jay" Hurley said during the first appearance hearing, as the story is told by the Orlando Sun Sentinel. "And then he's going to go home, pick up his wife, get dressed, take her to Red Lobster. And then after they have Red Lobster, they're going to go bowling."

The man was charged with domestic violence, but, as the judge sees it, not the serious domestic violence kind.

"He didn't actually hit her," the judge said.

If you grab your wife's neck and threaten to hit her because she complained you didn't wish her a "happy birthday," you'll probably be back before the judge again.

(h/t: Two Way blog)

Family members blame system, Internet in Washington killings

Posted at 10:30 AM on February 8, 2012 by Bob Collins (1 Comments)
Filed under: Crime and Justice

After your relative has killed two little boys, apparently because one of them drew a picture of daddy driving and mommy (whom is missing and presumed dead) in the trunk, and set fire to the house to which they were lured, it's probably not the best time to issue an indictment of the Internet and the legal system.

Relatives of Josh Powell, the man suspected of killing his wife and, subsequently, both of his children and himself, issued a statement today blaming the tragedy on the system.

The dead kids merited a "PS" in the statement:

We are grievously saddened at the loss that the Cox and Powell
families have suffered. There is no justification for the loss of two
innocent children, Charles and Braden.

Josh had asked us to step in and offer our support in helping him as
the next patriarchs of the family with the absence of Steve, his
father. We were also asked by Josh if we would offer a safe haven for
his sons should the need arise; our answer was absolutely yes.

We felt that Josh represented himself using a great deal of restraint
with patience and dignity at his children's custody hearing, even
though it did not work out in his favor. Our family's suggestions to
Josh both before and after the hearing were that if he had any
credible facts, no matter how disturbing, he should present it so that
due process would be possible. We believe that Josh continued to use
this restraint because of the fear of losing his sons and the love he
had for all of his family members that he so desperately tried to
protect.

When we arrived in the state of Washington we believed in America's
legal system. After witnessing how broken the system was and the
events that took place before our eyes, both inside the court room and
outside, we left for home in disillusionment of the legal system and
concern for our family's posterity.

In our hearts and minds we feel that this family tragedy was set into
motion from the beginning due in part to the various questionable
government agencies' practices, religious bias, the internet kangaroo
courts, and sensationalized news media, all of whom have circumvented
the laws that protect all of our rights to due process. We believe
that the stewardship of the responsibilities that have been entrusted
to those organizations and individuals has been completely
compromised.

America, this is not only a tragedy, Sunday was a dark day for all of
our families.

Uncle Maurice, Aunt Patti

P.S. Josh, Susan, Charles, and Braden, you will always remain in our hearts.

There is one system that clearly did not work: The 911 system.

Supreme Court to driver: Urine trouble

Posted at 10:36 AM on February 8, 2012 by Bob Collins (1 Comments)
Filed under: Crime and Justice

The Minnesota Supreme Court today upheld a man's conviction for drunk driving, rejecting the man's claim that a urine sample is unreliable proof.

Herman Tanksley Jr., who was arrested after an accident on I-35W in 2009, claimed that the Bureau of Criminal Apprehension testing of so-called "first-void urine samples" is unreliable, inaccurate, "and not generally accepted in the scientific community because it does not require an individual to empty his or her bladder, wait a certain period of time, and then provide a second sample for testing purposes." The problem with testing first-void urine samples, according to Tanksley, is that, because such samples contain urine that has 'pooled' in an individual's bladder over time, alcohol concentration levels obtained from the tests may not be indicative of the driver's actual blood alcohol content, the standard for determining whether someone is drunk.

A lower court rejected Tanksley's request for a hearing on the issue and sentenced him to 45 days in jail.

Today the state's Supreme Court said Minnesota doesn't need a urine test to prove a driver is drunk; it's just one of three ways the law provides for determining blood alcohol level.

"Under Tanksley's theory" Justice David Stras wrote," the State would be required to prove, in effect, that an individual's blood alcohol concentration is at or above 0.08 for all alcohol-concentration offenses, even if the individual's urine alcohol concentration meets or exceeds 0.08. Yet ... in defining the alcohol-concentration offense, the Legislature set forth three methods for proving alcohol concentration without expressing a preference for one method over another."

Here's the ruling.

The marriage ruling in prose

Posted at 12:35 PM on February 7, 2012 by Bob Collins (5 Comments)
Filed under: Crime and Justice

Many times, an important legal decision comes with its own language, indecipherable by mere mortals. Today's 9th Circuit Court of Appeals decision that upheld a lower court's ruling that California's ban on gay marriage is unconstitutional is not one of them.

Consider, for example, this passage on the word "marriage," which invokes Frank Sinatra, Groucho Marx, Abraham Lincoln, Marilyn Monroe, and Shakespeare. We dare guess it's the first time in the history of this nation, that a legal ruling has done that.

We need consider only the many ways in which we encounter the word "marriage" in our daily lives and understand it, consciously or not, to convey a sense of significance. We are regularly given forms to complete that ask us whether we are "single" or "married." newspapers run announcements of births, deaths, and marriages. We are excited to see someone ask, "will you marry me?", whether on bended knee in a restaurant or in text splashed across a stadium Jumbotron. Certainly it would not have the same effect to see "will you enter into a registered domestic partnership with me?"

Groucho Marx's one-liner, "marriage is a wonderful institution... but who wants to live in an institution?" would lack its punch if the word "marriage" were replaced with the alternative phrase. So too with Shakespeare's "A young man married is a man that's marr'd," Lincoln's "marriage is neither heaven nor hell, it simply purgatory," and Sinatra's "A man doesn't know what happiness is until he's married. By then it's too late." We see tropes like "marrying for love" versus "marrying for money" played out again and again in our films and literature because of the recognized important and permanence of the marriage relationship. Had Marilyn Monroe's films been called How to Register a Domestic Partnership with a Millionaire, it would not have conveyed the same meaning as did her famous movie, even though the underlying drama for same-sex couples is not different. The name "marriage" signifies the unique recognition that society gives to harmonious, loyal, enduring and intimate relationships."

Here's the full ruling:

Ninth Circuit Prop. 8 decision

In the military, a suicide attempt is a crime

Posted at 12:41 PM on February 2, 2012 by Bob Collins (11 Comments)
Filed under: Crime and Justice

Should the military consider a suicide attempt a crime?

A Marine from California is appealing his conviction on several charges, including trying to kill himself.

Pvt. Lazzaric Caldwell, who was never deployed but has been diagnosed with post traumatic stress disorder, slit his wrist in a suicide attempt, while awaiting trial on charges of stealing a belt in Okinawa. He was then charged with trying to kill himself.

Why does the military consider it a crime? The answer is in the decision of a Navy court which reopened the 2010 case last November:

As to the public policy argument, I'm not persuaded that criminal prosecution of genuine suicide attempts should be prohibited under military law. As both parties note in their briefs, self-injury has long been a chargeable offense in military jurisprudence. Conceivably, many instances of malingering or self injury could be concealed in the guise of a sincere suicide attempt. My own personal experience over the past 25 years of active duty service leads me to believe that self-injury, whether it results in an intentional suicide or not, has the potential to cause tremendous prejudice to the good order and discipline within a unit. If a convening authority feels it necessary to resort to court-martial to address this type of a leadership challenge, he or she should be allowed to do so, at least until the executive or legislative branches of government have proscribed this approach by law or regulation.

Court: DNA search is not an invasion of privacy

Posted at 1:47 PM on January 25, 2012 by Bob Collins (2 Comments)
Filed under: Crime and Justice

The Minnesota Supreme Court has ruled that requiring people convicted of a crime to submit a DNA sample does not violate a constitutional right against an unreasonable search.

The ruling comes in the case of Randolph Johnson, who was charged in September 2008 with felony domestic assault. Before his trial, the state reached a plea bargain agreement with Johnson in which the charges were reduced to a misdemeanor domestic assault in exchange for a guilty plea.

Johnson was placed on probation, but fought the search for DNA as an invasion of privacy.

The Minnesota database of DNA can be used in crime investigation to match samples collected at a crime scene with the DNA stored in the database.

Citing a U.S. Supreme Court decision, Justice Christopher Dietzen wrote in today's opinion that people like Johnson "do not enjoy the absolute liberty to which every citizen is entitled. Just as other punishment for criminal convictions curtail an offender's freedoms, a court granting probation may impose reasonable conditions that deprive the offender of some freedoms enjoyed by law-abiding citizens."

Dietzen said the process for collecting the DNA from Johnson "is minimal, especially when compared to other intrusions Johnson is subjected to as part of his probation, including random urinalysis." Authorities obtained the DNA by swabbing his mouth.

The Supreme Court also rejected Johnson's complaint that if he'd been charged with a misdemeanor initially, he would not have been subject to a DNA search. Justice Dietzen says the fact a judge found probable cause to charge Johnson with a felony initially, indicates a behavior different from someone charged only with a misdemeanor.

But in a dissent, Justice Helen Meyer suggested the DNA obtained in a search contains private information beyond those of the person who was searched. "DNA is often referred to as the 'blueprint' for life," she wrote. "'DNA stores and reveals massive amounts of personal, private data about that individual,' including information about that 'person's health, propensity for particular disease, race and gender characteristics, and perhaps even propensity for certain conduct.' Genetic information is not only 'information about us,' but also 'information about our parents, our siblings, and our children.'"

"Given the potential of DNA technology to expose extremely private information, I find these full-scale personal DNA searches highly intrusive," Justice Meyer wrote in the dissent, joined by Justice Alan Page and Justice Paul Anderson.

Justice Dietzen, however, rejected the argument saying there's no evidence "the state has or intends to use the biological specimens to extract highly personal genetic information."

Today's decision -- available here. -- came one day shy of the two-year-anniversary of a Minnesota Court of Appeals ruling in the case that upheld the DNA search.

Related: A second Supreme Court decision also affirmed that requiring DNA of a juvenile charged with a felony does not violate the Constitution. Read the decision.

The meaning of 'conceal'

Posted at 10:26 AM on January 23, 2012 by Bob Collins (6 Comments)
Filed under: Crime and Justice

Every so often -- and too often -- a case hits the Minnesota Court of Appeals that is an example of how children are caught in the middle of custody disputes between adults. Equally often, the Court illustrates why legislators have to be precise when passing laws. Today, a case related to both.

The Court of Appeals today overturned the conviction of a woman on charges she hid her children from their father a custody dispute.

The case stems from an argument in 2010 between Tammy Fitman of Austin and the father of her two children. After an argument over the father's intention to claim the children as dependents on his taxes, Fitman did not allow the father to have custody of the children for the following weekend, though he was supposed to have custody every other weekend.

Later, Mrs. Fitman refused to allow the father custody on Easter, even though the divorce decree spelled out where the children would go on each Easter.

Today's court ruling tells the rest of the story:

The Fitmans expressed concern that M.B.'s (the father) residence was unfit for children, referencing a specific allegation that had previously been investigated and found to be without merit. The lieutenant explained that the allegation had been investigated and that the Fitmans could be charged with a crime if they did not allow M.B. visitation. The Fitmans continued to refuse. M.B. then agreed to allow the matter to go through the courts rather than to have the police physically remove the children from the home. Again, although the police and M.B. were not allowed to see or speak with the children, there is no evidence to suggest that they did not know the children were at the Fitmans' residence.

Fitman was charged with concealing minor children from a parent. She was found guilty.

In its decision today, the Court focused on the meaning of one word: "conceal."

The common definition of the word "conceal" is "[t]o hide or keep from observation, discovery, or understanding; keep secret." The American Heritage Dictionary 304 (2d ed. 1985).

The evidence does not support the conclusion that appellant concealed the children, and the state did not attempt to prove that she did conceal them. Concealing children requires actively hiding them or attempting to keep another from discovering their whereabouts. While neither M.B. nor the police saw the children at the Fitmans' house on March 12 or on April 2, there was no evidence that appellant intentionally prevented M.B. from observing them or discovering their whereabouts. The record does not suggest that the children were not at appellant's home, that appellant was hiding them, or that M.B. did not know they were there.

Moreover, two facts indicate the contrary. First, M.B. and the police came to the Fitmans' home on March 12 and on April 2 because they assumed the children were there; second, the police and M.B. discussed the possibility of forcibly removing the children from the home, which they would not have done if they had not thought the children were in the home. This evidence supports the conclusion that appellant was not concealing the children.

The Court said "conceal" in custody cases generally means parents who go into hiding with the children.

Here's the full opinion.

Who should carry a gun in court?

Posted at 10:43 AM on January 23, 2012 by Bob Collins (4 Comments)
Filed under: Crime and Justice

Should county attorneys in Minnesota carry guns in the courtroom?

That's one of the bills to be debated this week at the Capitol in the wake of last months' shooting in a courthouse in Grand Marais, Minnesota Lawyer reports.

Rep. Tony Cornish, a police officer himself, has filed two bills. One would increase the penalties for assaulting or causing the death of a prosecuting attorney (but not the defense attorney?). Another would authorize the county attorney to carry a gun.

No clarification in anti-bullying constitutional question

Posted at 4:12 PM on January 17, 2012 by Bob Collins (1 Comments)
Filed under: Crime and Justice

How far reaching can schools be in policing the behavior of students?

The U.S. Supreme Court had a chance to settle once and for all whether school officials can discipline students for their off-hours, off-school-property activities on social networking sites.

Instead, it punted.

The Court refused to hear two cases, one that said school officials could discipline the students, and one that said school officials cannot.

In Pennsylvania, the parents of a 17-year old senior sued a principal who suspended the student because she created a MySpace page that described him as a "hairy sex addict" and a "pervert" who liked "hitting on students" in his office.

In that case, the Third Circuit Court of Appeals said the school cannot discipline students for their conduct outside of the schoolhouse.

But in another case, the Fourth Circuit Court of appeals ruled a West Virginia senior could be suspended for her MySpace profile that made fun of another girl as a "slut" who had herpes.

In Kowalski's appeal, her lawyer described her as a cheerleader and "the reigning 'charm queen' of her school," but the appeals court threw out her free-speech suit. She "used the Internet to orchestrate a targeted attack on a classmate," the judges said.

"The court needs to explain when school officials have the power to regulate off-campus student speech," David L. Hudson, a First Amendment scholar at Vanderbilt told the Los Angeles Times last week. "The phenomenon of cyber-bullying ratchets up the importance of the issue."

By the way, with the Supreme Court rejection of the appeal in the Pennsylvania case, the school district of the principal who was falsely accused of being a "hairy sex addict" now has to pay the ACLU's attorney fees and damages to the parents who fought it their daughter's suspension..

If you're a school official, is it worth fighting when the parents start calling?

Is a drive-by shooting a 'victimless crime?'

Posted at 12:29 PM on January 11, 2012 by Bob Collins (3 Comments)
Filed under: Crime and Justice

The Minnesota Supreme Court today ordered a harsher sentence for a drive-by shooter.

Michael Ferguson had earlier successfully appealed a sentence not only for one count of a felony drive-by shooting, but also for eight counts of assault against the eight people -- six of them children -- who lived in the Saint Paul apartment house where the shooting took place.

An Appeals Court had tossed out the assault sentences, but today the Supreme Court reimposed the additional three-year sentence for the assaults.

Minnesota law "prohibits multiple sentences, even concurrent sentences, for two or more offenses that were committed as part of a single behavioral incident," Justice Helen Meyer wrote. "But the legislature did not intend... to immunize offenders in every case from 'the consequences of separate crimes intentionally committed in a single episode against more than one individual.'"

Unlike the crime of assault, the drive-by shooting statute does not require that the occupants of the building be injured, put in fear, or even be aware of the shooting, the court said. Justice Meyer suggested that sentencing Ferguson on just one count of the shooting toward one person means the other people in apartment were not victims.

In his dissent, however, Justice Paul Anderson, argued that the additional sentence for assault makes a drive-by shooting "a victimless crime."

"The majority's approach to the sentencing of Ferguson is erroneous for two reasons," Anderson said. "First, the majority's conclusion that occupants of a building are not victims of the offense of drive-by shooting at an occupied building is unsupported by Minnesota law. Second, contrary to the majority's assumption, the multiple-victim exception does not support a sentence for a victimless crime that arises from the same conduct as other sentenced crimes."

Here's the entire opinion.

Supreme Court: Challenge to Red Wing rental law is appropriate

Posted at 11:41 AM on December 28, 2011 by Bob Collins (5 Comments)
Filed under: Crime and Justice

The Minnesota Supreme Court today cleared the way for a constitutional challenge to a Red Wing ordinance that requires the inspection of rental properties.

Red Wing adopted the law in 2005 amid allegations that absentee landlords were providing unfit rental properties.

But a property rights group, the Institute for Justice, challenged the requirement that landlords unwilling to voluntarily allow their properties to be inspected would face an "administrative warrant" allowing such inspections.

Red Wing's rental inspection program has been in place for five years. During that time, inspectors have searched the rental homes of hundreds of residents, going into their closets, looking under their beds, and inspecting their bathroom cabinets. They have required "correction" of terrifying health and safety hazards like "a dirty stovetop," a damaged bedroom doorstop and a bathroom door without a lock. After losing two attempts to get warrants to search rental homes without tenant and landlord consent, the city enacted a more limited program. Now inspectors don't go into medicine cabinets or refrigerators. The most recent court decision seems to eliminate closets and cabinets as well, but inspectors still go into every room and still have access to all the personal information one can tell about a person from entering their living room, bathroom and bedroom. It is time for Minnesota courts to uphold the rights of ordinary residents to exclude unwanted visitors from their homes.

Today, the Minnesota Supreme Court overturned lower courts in ruling the ordinance presents a constitutional question that should be decided.

"The constitutional issue that the landlords and tenants have raised is neither hypothetical nor abstract," Justice Helen Meyer wrote. "The City has actually begun enforcing the rental inspection ordinance against appellants. The City has sought not just one but three separate administrative warrants over a four-year period to insect their properties, which appellants have been forced to defend."

Lower courts had ruled that a constitutional challenge to the Red Wing ordinance was not appropriate because the landlords had successfully quashed the city's attempts to forced inspections.

"The legal interest at stake here is the right to be free from allegedly unconstitutional searches," Justice Meyer said in ordering the case sent back to the courts. "In this situation, the landlords to not have to wait until such a search is ordered or carried out to establish ripeness."

Read the full opinion.

Court upholds 50-year order for protection

Posted at 11:02 AM on December 27, 2011 by Bob Collins
Filed under: Crime and Justice

The Minnesota Court of Appeals has ruled a 50-year order for protection against a man does not violate his First Amendment rights.

The Court today upheld the order that prevents James Bergstrom, a Washington County man, from contacting his former wife and his two children for 50 years, an order imposed by the court after he was jailed for abuse and stalking.

In its decision, the Court of Appeals upholds the 2008 law passed by the Legislature permitting such lengthy extensions of orders for protections in cases in which a person violates an existing or previous order, engages in stalking, or is incarcerated or about to be released.

Bergstrom argued the order constitutes a "prior restraint" on free speech. But the Court said "an injunction that restricts speech in a content-neutral manner is not a prior restraint... like a protest buffer zone, an OFP extension ... that includes a no-contact order is content-neutral because it restricts contact with the abuse victim initiated by the abusing party without regard for the message the abusing party intends to express."

Read the full decision.

Drone leads to arrest of U.S. citizens

Posted at 8:30 AM on December 12, 2011 by Michael Olson (9 Comments)
Filed under: Crime and Justice

It was another quiet summer day in Nelson County, North Dakota last June when a few cows and their calves meandered onto Randy Brossart's farm. But when police showed up at the farm to retrieve the cattle, County Sheriff Kelly Janke says that he and his deputies were chased off by three gun-toting Brossart boys.

Here's what happened next according to an item ran in the Grand Forks Herald:

Fearful of an armed standoff, Janke called in reinforcements from the state Highway Patrol, the Grand Forks regional SWAT team, a bomb squad, ambulances and deputy sheriffs from three counties.

He also called in a Predator B drone.

The call for a drone was received by the Border Patrol which fulfilled Janke's request. The McClatchy story explains what happened next.

As the unmanned aircraft circled 2 miles overhead, its sensors helped pinpoint the suspects, showing they were unarmed.

Janke said he and other officers rushed in and made the first known arrests of U.S. citizens with help from a Predator, the spy drone that has helped revolutionize modern warfare.

The use of drones on U.S. citizens within American borders is alarming to privacy and civil liberty advocates. "Only the guilty have reason to fear!," writes Brian Doherty on the libertarian site Reason.

Here's an enthusiastic explainer on the Predator's use in combat.

Minnesota court upholds gun ban

Posted at 12:16 PM on December 5, 2011 by Bob Collins (4 Comments)
Filed under: Crime and Justice

A lifetime ban on handgun ownership by people who have committed a crime of violence does not violate the Constitution, the Minnesota Court of Appeals has ruled.

The court ruled today in the case of Andrew Craig, who was stopped by Mounds View police on suspicion of domestic assault in 2009. Police found a gun in the car, which he claimed was put in his backpack by his girlfriend. Craig had previously been convicted of possession of drugs, which Minnesota considers a crime of violence.

Craig appealed the ban on gun ownership but the court said "... the Supreme Court did not explicitly hold that the Second Amendment right is a fundamental right, so that restrictions on this right are subject to a strict-scrutiny standard of review."

The court said Minnesota law, which declares "a fundamental, individual right to keep and bear arms," does not bolster Craig's appeal because the 2003 concealed carry law recognizes persons the Legislature "has deemed ineligible to possess a firearm."

Judge Natalie Hudson said protecting the public from offenders who use guns is "an important governmental objective."

Although the U.S. Supreme Court overturned the District of Columbia's handgun ban (the Heller case) in 2008, Judge Hudson said that case made clear that the right to own a gun "is held by 'law-abiding, responsible citizens.'"

"A person convicted of a felony, particular one that is listed as a 'crime of violence' ... has demonstrated that he or she is not a law-abiding, responsible citizen," she wrote.

Here's the full opinion.

The ordeal of Gulnaz

Posted at 12:23 PM on December 1, 2011 by Bob Collins (5 Comments)
Filed under: Crime and Justice

Long before 9/11, human rights groups tried to get Americans to pay attention to the human rights abuses suffered by women in Afghanistan at the hands of the Taliban. Then the war started, the Taliban was ousted from power, over 1,800 U.S. soldiers died, and it's still a struggle to get any attention paid to the human rights abuses suffered by women in Afghanistan.

But, today, one story is getting some attention.

Afghan President Hamid Karzai has pardoned a woman who was jailed for adultery after she was raped by a family member.

All she has to do is marry the rapist.

The BBC reports...

Gulnaz's lawyer told the BBC she hoped the government would allow Gulnaz the freedom to choose who to marry.

"In my conversations with Gulnaz she told me that if she had the free choice she would not marry the man who raped her," said Kimberley Motley.

The case has drawn international attention to the plight of many Afghan women 10 years after the overthrow of the Taliban.

Earlier this month, Gulnaz told the BBC that after she was raped she was charged with adultery.

"At first my sentence was two years," she said. "When I appealed it became 12 years. I didn't do anything. Why should I be sentenced for so long?"

Court: Expired tabs good enough reason for drunk driving arrest

Posted at 10:12 AM on November 28, 2011 by Bob Collins (2 Comments)
Filed under: Crime and Justice

You've stopped at a stop light when a police officer pulls up behind you and notices your license tabs, while current, don't match his computer which reports your car's registration expired two years ago. He pulls you over and confirms your car is legally registered, but also notices you smell of booze and look drunk. Can you be arrested?

The Minnesota Court of Appeals today said "yes," ruling that pulling a driver over in Sartell in January 2010 was a legal stop, even though it was based on bad information.

It ruled in the case of Shaun Cox, who was driving with nearly twice the legal limit of alcohol and who was unsuccessful getting that fact suppressed at his district court trial.

"The stop cannot be 'the product of mere whim, caprice or idle curiosity,'" the court said, in ruling it wasn't. "When a license plate displays 2010 tabs, but a computer check indicates that the vehicle's registration expired in 2008, it is objectively reasonable for an officer to infer that the 2010 tabs may have been stolen."

Mr. Cox argued that once the officer's curiosity about the expired tabs was satisfied, the "investigation" could not be broadened to include his possible drinking.

The court hinted that Cox would be correct if the officer were only concerned about expired tabs...

But as we have noted, the basis for the officer's stop was his suspicion of stolen tabs. This suspicion would not have been dispelled based solely on the observation of current tabs. As a result, the officer properly approached the vehicle to talk with Cox about the discrepancy. Because Officer Thompson immediately observed signs of Cox's intoxication when he approached him to inquire about the tabs, we conclude that Officer Thompson lawfully developed additional reasonable suspicion that supported the expanded scope of the initial stop.

Here's the full opinion from the Court of Appeals.

Another Taser death

Posted at 2:10 PM on November 23, 2011 by Bob Collins
Filed under: Crime and Justice

Just a few days after a 60 Minutes segment chronicled the misuse of Tasers by police, another man has died at the hands of a cop with a Taser.

It happened Tuesday in Halifax County, North Carolina when a man fell off his bike, prompting calls to the cops that he might be drunk. When an officer tried to stop him, he rode away on his bike. That's when the officer used the stun gun, which caused the man to fall off his bike, hit his head, and eventually, die.

Sometimes, an officer is questioned for not using a Taser. In Farmington, Maine, for example, a veteran reportedly suffering from post traumatic stress disorder was shot and killed last Saturday by a police officer who decided not to use his Taser.

Court: Duluth can cut health benefits for retirees

Posted at 11:41 AM on November 23, 2011 by Bob Collins (5 Comments)
Filed under: Crime and Justice

The Minnesota Supreme Court today ruled a city can cut the health benefits of retirees when it cuts the health benefits of its current workforce.

The court upheld two lower court rulings that insisted Duluth can change its retiree health insurance benefits to match those of its current employees.The city said it saved $60 million over 30 years by cutting the retiree benefits. The retirees said the benefits should be the ones the city agreed to when they retired.

The court said a clause in the city's contracts that requires the city to offer the same benefits to retirees as "active" employees, refers to the employees now, not the city employees at the time of retirement.

The clause requiring a retiree to select a single health insurance plan at the time of retirement does not guarantee the retiree the selected plan throughout retirement. That initial election of a health insurance plan is effective for as long as the City offers the selected plan to current City employees.

In a dissent, however, Justice Paul Anderson says the contracts were ambiguous on the question of "current" vs. "active."

For example, if a newspaper article refers to "the current Minnesota Governor," it is unknown which governor the article references without knowing more details, such as the publication date of the article. The same is true of the active-employees clause. Without context, "active" or "current" employees as used in the CBAs could mean "current" on a specific date in the past.

It is essential for any court deciding this case to answer the following question: what is the exact time period to which the active-employees clause refers?

The court, however, did not touch the question of whether Duluth -- or any other city in Minnesota -- could eliminate health insurance for all retirees by eliminating it for all current employees. It said it was not asked that question.

Here's the full opinion.

Court of Appeals preserves farmers' right to hunt on own land

Posted at 11:55 AM on November 21, 2011 by Bob Collins (3 Comments)
Filed under: Crime and Justice

Baiting deer -- attracting deer with grains, fruits, vegetables or other food -- is illegal in Minnesota. Unless you're a farmer, the Minnesota Court of Appeals clarified today.

The court overturned the conviction of Donald Hansen of Hibbing, who was charged by the Department of Natural Resources with deer baiting. Hansen had tossed unsold vegetables near his deer stand in a field he owns.

The DNR had used aerial photography on two occasions to monitor Hansen's vegetable farm. On one flight, there were no pumpkins in his field. Photographs on a flight just before last November's deer season showed "a substantial pile of pumpkins." Hansen maintained that it's accepted agricultural practice to use unsold vegetables as "green manure," and he denied he was baiting deer. The DNR ticketed him and took his rifle.

The district court found him guilty. Today, the Minnesota Court of Appeals declared Minnesota's law too vague to uphold Hansen's conviction, because a phrase in the law -- a requirement that food be "placed by a person" and not result from normal farming -- could prevent most farmers from hunting on their own land:

Conceivably, this restriction could apply to any movement of crops due to human volition, including harvesting corn with large machinery or moving pumpkins from the field where they were grown to another place on a farm for storage, further processing, or another farm-related purpose. Here, under the language of the statute, appellant was prohibited from hunting within the vicinity of any crops he had transported on his own land. The word "placed" is also ambiguous within the factual context presented here.

Further, as applied to farmers, by exempting from the statutory prohibition "[f]ood that has not been placed by a person and resulting from normal or accepted farming . . . activities," the statute apparently gives with one hand and takes with the other. By including the "normal or accepted farming activities" language in the list of activities that do not meet the definition of deer bait, the legislature expressed an intention to make astatutory exception for farmers who transport their crops as part of carrying out their livelihoods. However, farmers meet the definition of deer baiting during harvest and at other times when they hunt within the "vicinity" of crops that constitute deer food that has been "placed" by them. Thus, the phrases "food . . . placed by a person" and "food . . . resulting from normal or accepted farming . . . activities" are inconsistent with each other, and the juxtaposition of these two phrases creates an ambiguity in the statute.

Court of Appeals Judge Roger Klaphake wrote that the law as enforced would "so restrict the right of a farmer who hunts on his own property that the farmer's right to hunt would not exist." He called that "absurd."

Here's the full opinion.

When Jon Stewart gets serious

Posted at 10:45 AM on November 11, 2011 by Eric Ringham (2 Comments)
Filed under: Crime and Justice, Media, Religion, Sports

Sooner or later, the two young people interviewed in this segment would have been ashamed of themselves and their comments. When they had children of their own, for example. Last night's "Daily Show" merely hastens the day.

And now, a moment about the victims

Posted at 10:30 AM on November 10, 2011 by Bob Collins (7 Comments)
Filed under: Crime and Justice

"Everybody's talking about (Jerry) Sandusky and everybody's talking about Joe Paterno and, you know, what's the university going to do for these boys?" hockey star Theo Fleury told CBS News this morning.

Fleury, who was sexually abused as a young player by a coach, suggests people should be less concerned about the legacy of football coach Joe Paterno, and more concerned about getting some help for some kids who probably need it.

"I'm sure they have a psychology and psychiatry faculty there where they can draw on those resources and get these boys the help that they need. It took me 27 years to come to a place of... being comfortable in my own skin again. And, you know, my wish is that...somebody takes the bull by the horns here and reaches out to these boys who have gone through what they have gone through," Fleury said.

We've yet to hear from any of the victims of the Penn State sexual abuse scandal, but the sister of one victim says she's stopped going to most classes at Penn State because her brother's misery is the stuff jokes are made of:

"I've been going to minimal classes, because every class I go to I get sick to my stomach. People are making jokes about it. I understand they don't know I'm involved and it was my brother, but it's still really hard to swallow that."

Why Paterno needed to go

Posted at 10:17 AM on November 9, 2011 by Bob Collins (9 Comments)
Filed under: Crime and Justice, Sports

Penn State University football coach Joe Paterno has quit amid the child abuse scandal rocking the university.

It's this paragraph of his statement, that raises eyebrows:

"This is a tragedy. It is one of the great sorrows of my life. With the benefit of hindsight, I wish I had done more."

Two university officials have been charged with failing to report to authorities that someone saw coach Jerry Sandusky sexually abusing a naked boy in the showers of a team practice facility in 2002 (pennlive.com).

But Paterno's earlier statement after the grand jury indictment showed why he had to go:

"The fact that someone we thought we knew might have harmed young people to this extent is deeply troubling... If this is true we were all fooled, along with scores of professionals trained in such things, and we grieve for the victims and their families. They are in our prayers."

Paterno's statement tilted toward the "I thought it was only one kid" excuse. There were (at least) eight, which doesn't make one any less pathetic.

The grand jury report says Paterno had been told about the sexual abuse of an 11-year old boy in the Penn State locker room in 2002, told the university's athletic director about the incident, but did not tell police.

In the intervening 9 years, Paterno apparently never said to a school official, "hey, whatever happened to that thing with my assistant coach sexually abusing a boy in the shower?"

In hindsight, that seems hard to believe.

Update 2:41 pm - This article, from April 2011, questions whether the relatively early "retirement" of Sandusky suggests a deal based on knowledge of pedophilia.

Tracking the health care law appeals

Posted at 11:40 AM on November 8, 2011 by Bob Collins
Filed under: Crime and Justice, Health, Politics

You have to love the Court of Appeals in the District of Columbia for its practicality in today's decision that upholds the health care law pushed by President Barack Obama.

Before writing its opinion (available here), the justices acknowledged that what they think isn't going to matter much, anyway, since it's going to be decided by the U.S. Supreme Court.

Since so much has already been written by our sister circuits about the issues presented by this case-which will almost surely be decided by the Supreme Court-we shall be sparing in adding to the production of paper.

The opinion and dissent then went on for 103 more pages.

That's 51 more pages than the 4th District Court of Appeals decision in September tossing out a challenge to the suit, 43 of which were spent listing the names of people, states, and organizations that had submitted briefs in that case. (See opinion)

The 6th Circuit Court of Appeals (Cincinnati) took only 64 pages to uphold the law in June (opinion here).

The 11th Circuit Court of Appeals (Florida) declared the law unconstitutional in August and it is so far the granddaddy of opinions at 305 pages (Opinion here) .

Kaiser Health News is tracking all of the various appeals of the law here.

Does a Minnesotan own New Hampshire's history?

Posted at 11:30 AM on November 7, 2011 by Bob Collins (1 Comments)
Filed under: Crime and Justice

The Minnesota Court of Appeals has sided with New Hampshire in a fight a Minnesota man is having with the state of New Hampshire over a copper plate used to print the bonds, which New Hampshire printed to fund the Revolutionary War.

Gary Lea bought the plate (a picture of it is available at the Winona Daily News) at an estate sale in Spring Valley, but just before he was going to sell it at an auction -- he was asking a minimum of $50,000 -- the state of New Hampshire claimed to be the rightful owner because it claims it paid John Ward Gilman to make the plate in 1775. Nobody seems to know how it ended up in Minnesota, and there's a dispute over which states' courts will figure it out.

Today, the Minnesota Court of Appeals overturned a Fillmore County (Minnesota) judge who ruled last March that Minnesota courts had jurisdiction to decide the rightful owner of the plate. The Court of Appeals cited a Supreme Court case that would appear to undercut Minnesota's jurisdiction in the case, merely because the man who owns the plate lives here and the plate is currently stored here.

That could pave the way for New Hampshire courts to decide who owns its history, or at least, a small part of its history.

The issue has even made the editorial pages of New Hampshire's Concord Monitor, which called for the plate to be returned.

The collector did nothing wrong, and his desire to profit from his find is understandable. But one way or another, the plate must come home. A state that can't afford to care for its needy certainly can't spend a five- or six-figure sum on a piece of its history. But the public, aided perhaps by a modern history-loving patriot of means, can. A fund should be created, perhaps under the state historical society or division of charitable trusts, to accept contributions to purchase the plate. A fund drive should be held. If the money can't be raised, or if the seller is unreasonable, then by all means, the state should go to court.

Though he has been unable so far to locate records that prove it, former state archivist Frank Mevers is likely correct that the plate was removed from the vault in the State House. Records do, however, show that a former state representative and then-head of the New Hampshire Hospital for the Insane loaned the plate to a Boston doctor and currency collector who used it in the mid-19th century to print commemorative copies of the notes used to fund the War of Independence. So it's more likely that the plate was not stolen, but borrowed, not returned and then forgotten.

Grocery chain drops charges against sandwich-eating shoplifters

Posted at 1:06 PM on November 2, 2011 by Bob Collins (7 Comments)
Filed under: Crime and Justice

The supermarket chain, Safeway, knows a public relations blunder when it sees one.

A company executive at Safeway has decided not to press shoplifting charges against a Honolulu couple whose arrests over stolen sandwiches led state workers to take custody of their 2-year-old daughter, the Associated Press reports.

Marcin and Nicole Leszczynski ate a sandwich while shopping last week, and walked out of the store after checking out without paying. They said they forgot and offered to pay but company policy apparently forbids settling up in such a matter.

Their daughter Zofia was taken away by state Child Welfare Services officials. She was returned to her parents 18 hours later.

That touched off a national debate on whether law enforcement, store officials, and child welfare workers went a little overboard.

Anatomy of a bike theft

Posted at 1:05 PM on October 18, 2011 by Bob Collins (2 Comments)
Filed under: Crime and Justice

Someone -- well, these two kids, actually -- stole Kathy Anderson's son's bike a few months ago, the Inver Grover Heights Patch reports. They didn't know she had rigged up a a surveillance camera outside her home and got video of the perps.

The model citizens left their half bottle of brandy on her neighbor's patio before riding off on the bike, which hasn't been recovered, she says.

"I'm sure we will never see the bike again, but I can only hope the parents of these 2 morons see this," she wrote.

(h/t: Randy Greenly)

The secret world of the 'innocent' detainee's effort to be free

Posted at 3:34 PM on October 17, 2011 by Bob Collins (1 Comments)
Filed under: Crime and Justice

Adnan Farhan Abdul Latif is being held at the U.S. detention facility at Guantanamo Bay.

In July 2010, a federal judge ordered his release -- he's been there for almost nine years -- because of lack of evidence that the man was part of al Qaeda.

The man, who is from Yemen, says he went to Afghanistan because he was promised free medical care for head injuries he received in a car accident. The judge says that's a plausible explanation.

Since then, the Justice Department appealed the ruling. A hearing on the question was opened last spring, and then everyone was tossed out of the courtroom while it continued in secret.

And the judge has now ruled:

That opinion is making the rounds on the Internet, but this document is not:

The Lawfare blog got a copy of it, but doesn't translate what it means.

A docket entry explains that there is a classified opinion consisting of a 53-page opinion for the court by Judge Janice Rogers Brown, a 14-page concurring opinion by Judge Karen LeCraft Henderson, and a 45-page dissent by Judge David Tatel.

At some point, a redacted opinion will be issued and we might be more informed about what we're not supposed to know.

Forrest Gump and the First Amendment

Posted at 1:15 PM on October 17, 2011 by Bob Collins (4 Comments)
Filed under: Crime and Justice

Tom Hanks, as Forrest Gump, didn't really win the Medal of Honor. Is it a crime to say he did?

Of all the things you can say in this country under the First Amendment, there's still a law on the books that says you can't say you were awarded a military honor when you weren't.

The Supreme Court today said it will review the law passed by Congress -- the Stolen Valor Act. It calls for a fine and/or six-month jail term for anyone who "falsely represents himself or herself, verbally or in writing, to have been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States." It increases to a year in prison for lying about a Purple Heart, a Medal of Honor or another particularly high honor.

Filed in 2005, it passed the House of Representatives in December 2006 on a voice vote. No member of House, therefore, could be on the record one way or the other. That followed a September 2006 voice vote in the Senate that similarly avoided a record for any senator on the question.

As with most First Amendment issues, the question isn't whether people who lie about their medals and service diminish the contributions of those who actually served. They do. The question is whether there's a danger in giving the government the authority to regulate lies, and whether lies as a rule do enough damage to be constitutionally unprotected.

""The sad fact is, most people lie about some aspects of their lives from time to time," Ninth Circuit Judge Milan Smith wrote when his panel overturned the law last year, in the case of a water district board member in California who claimed he'd been awarded the Medal of Honor (Read decision).

"The government's approach would give it license to interfere significantly with our private and public conversations," he wrote. "Placing the presumption in favor of regulation...would steadily undermine the foundations of the First Amendment... How, based on the principle proposed by the government, would one distinguish the relative value of lies about one's receipt of a military decoration from the relative value of any other false statement of fact."

And that's the question, too; if this lie can be regulate, what other speech might soon follow?

The decision included references to Jon Stewart's Daily Show, Stephen Colbert's Colbert Report, and even a scene from Forrest Gump as examples of speech that might be threatened under the law.

But in a dissent to the decision overturning the law, Judge Jay Bybee said not all speech is entitled to First Amendment protection -- defamation, for example -- but Stewart's, Colbert's, and Forrest Gump's are.

"I must, that the Act will be applied with some modicum of common sense, it does not reach satire or imaginative expression," the judge said.

They didn't tell me I couldn't have a gun

Posted at 10:45 AM on October 17, 2011 by Bob Collins (6 Comments)
Filed under: Crime and Justice

You're charged with domestic assault and your attorney works out a deal in exchange for a guilty plea. But your attorney doesn't tell you that by pleading guilty, you'll no longer be able to possess a firearm in Minnesota. Can your guilty plea be invalidated because of ineffective counsel?

Thomas Sames was arrested in Shakopee in May 2010 during a fight with his wife at their home. He admitted to slapping and kicking her. Officers also found a small bag of marijuana.

Under a plea deal, the marijuana possession charge was dropped, and Sames was placed on probation for a year on assault charges. He didn't show up at a domestic abuse assessment meeting and shortly thereafter he appealed his conviction on the basis of the Sixth Amendment to the Constitution.

Today, the Minnesota Court of Appeals upheld the conviction citing, a 1970 U.S. Supreme Court ruling that " a defendant's guilty plea is voluntary if the defendant is 'fully aware of the direct consequences' when entering the plea." Not being able to buy a firearm is not a direct consequence, the Court of Appeals said. Instead, it is what's known as a "collateral consequence."

Mr. Sames claimed a U.S. Supreme Court ruling last year that overturned a man's conviction because he was not advised that pleading guilty would result in deportation is, essentially, the same thing (I wrote about a similar case in Minnesota last May).

The claim is not without logic, the Court of Appeals said, "but the (Supreme) Court did not clearly state that the direct-collateral distinction should not be applied in cases not involving the risk of deportation. In the absence of such a statement, we are obligated to follow the precedent that binds us on that issue."

Here's the full opinion.

Is a cross just a cross?

Posted at 2:03 PM on October 14, 2011 by Bob Collins (11 Comments)
Filed under: Crime and Justice, Religion

By the end of the day -- maybe -- we'll know whether the Supreme Court wants to answer the question, "is this a violation of the separation of church and state?"

These are white crosses erected by a private group -- an association of state troopers from the Utah Highway Patrol -- on public land, the side of highways where officers were killed.

Of course, we see generic white crosses often where someone has died, as Nikki Tundel pointed out in her photo essay of makeshift memorials last year. If they're placed by the side of the road -- public land -- by private individuals, does that convey a government endorsement of a religion? The Supreme Court could settle that question once and for all.

The court is holding a hearing today to decide whether to accept an appeal of a 10th Circuit Court of Appeals decision that, at least in the Utah case, ruled the practice unconstitutional.

If the Supreme Court agrees to hear the case, it could overturn the test -- the "reasonable observer test," as it's known -- used to decide these things: does a symbol that is widely recognized as a religious symbol promote that religion.

Would a "reasonable observer" see it as promoting, in this case, Christianity? Or simply a spot where someone probably died?

In its request for the Supreme Court to take up the case, the Utah Highway Patrol Association says the cross is meant only to communicate, "the simultaneous messages of death, honor, remembrance, gratitude, sacrifice, and safety."

But in ruling the crosses do convey government endorsement of religion, the 10th Circuit Court of Appeals said a cross "is not a generic symbol of death; it is a Christian symbol of death that signifies or memorializes the death of a Christian.

Are reporters lobbyists?

Posted at 10:41 AM on October 14, 2011 by Bob Collins (3 Comments)
Filed under: Crime and Justice, Media

What part of the First Amendment don't government officials get? On some days, most of it.

In Broward County, Florida, a mayor says reporters for a local newspaper have to register as lobbyists, the Sun Sentinel reports. At issue is a county code of ethics and Lauderhill Mayor Richard Kaplan's interpretation of it in an email to a reporter.

Though reporters do not necessarily consider what they do is lobbying, their work is provided to the editors who use their research to write editorials. Editors do try to influence the final decision making indirectly (which is communication by an means) which is lobbying according to the new law as I see it. It is this understanding that your research will be used in lobbying activities by editors that pay you, that I believe may include reporters in as lobbyist. I just don't want to risk the situation.

The mayor in this case certainly has the right not to talk to the media, but once reporters are required to register as lobbyists, they subject themselves to regulations and that's the part that probably runs afoul of the Constitution.

No matter to many of the commenters on the paper's site, most of whom invoke a political angle and prove again that many people are willing to defend the constitution right up to the point where it becomes politically distasteful to do so.

Meanwhile, in San Diego, a federal prosecutor is threatening "going after" newspapers, radio and TV stations because of ads they're running for illegal marijuana operations in a state that has legalized medicinal use of marijuana.

According to the Center for Investigative Reporting...

Federal law prohibits people from placing ads for illegal drugs, including marijuana, in "any newspaper, magazine, handbill or other publication." The law could conceivably extend to online ads; the U.S. Department of Justice recently extracted a $500 million settlement from Google for selling illegal ads linking to online Canadian pharmacies.

Duffy said her effort against TV, radio or print outlets would first include "going after these folks with ... notification that they are in violation of federal law." She noted that she also has the power to seize property or prosecute in civil and criminal court.

William G. Panzer, an attorney who specializes in marijuana defense cases, said publishers may have a reason to worry. Federal law singles out anyone who "places" an illegal ad in a newspaper or publication. Nevertheless, Panzer said he is not aware of a single appellate case dealing with this section of the law.

"Technically, if I'm running the newspaper and somebody gives me money and says, 'Here's the ad,' I'm the one who is physically putting the ad in my newspaper," he said. "I think this could be brought against the actual newspaper. Certainly, it's arguable, but the statute is not entirely clear on that."

Duffy, if she carries out her threat, would have a leg to stand on where TV and radio stations are concerned. TV/radio, regulated by the government, doesn't enjoy 1st Amendment protections that extent to an unregulated newspaper industry. But prosecuting a newspaper on the basis of content -- even advertising content -- might invite a constitutional challenge.

In this case, the law against placing illegal ads is equating the person placing the illegal ad with the organizations -- mostly alt-weeklies -- accepting it.

The even larger issue, of course, is a federal government essentially targeting a state's decision to legalize marijuana.

Supreme Court explains rejection of Seward killer's age appeal

Posted at 3:02 PM on October 12, 2011 by Bob Collins (4 Comments)
Filed under: Crime and Justice

Three weeks after Mahdi Ali was found guilty of killing three men during a failed robbery attempt at the Seward Market in Minneapolis last year, the Minnesota Supreme Court has explained why it allowed him to be tried as an adult.

The Supreme Court ruled that Ali should have been allowed to immediately appeal a Court of Appeals decision that rejected his attorney's call for the indictment against him to be thrown out based on the dispute over his age. It was a fairly unusual move last April when the Supreme Court agreed to hear Ali's appeal immediately.

The state claims that Ali was born on January 1, 1993, which would have made him 17 at the time of the killings, and eligible to be tried as an adult. Ali, however, claimed he was only 15 and should have been tried in the state's juvenile justice system instead.

Ali argued that Hennepin County Attorney Mike Freeman should have been required to prove Ali's age beyond a reasonsable doubt rather than merely through the preponderance of the evidence, as a district court ruled.

The Supreme Court today officially rejected the argument, noting it's fairly impossible to prove beyond all doubt, the age of people from countries that don't keep birth records. Ali was born in Kenya:

.. because the criminal defendant and the State have an equal interest in trying the defendant in the proper court, preponderance of the evidence is the proper standard of proof in determining the defendant's age for jurisdictional purposes. It is also significant that, although a defendant's age may be rarely open to debate, when it is, it is the defendant who has direct knowledge and control over the information necessary to resolve the dispute. Requiring additional procedural safeguards puts an even greater burden on the State in a situation in which it is already at a disadvantage. Indeed, it is questionable in situations in which the defendant's country of origin does not maintain birth records whether, in a case in which a defendant's age is open to question, the State could ever meet a standard higher than preponderance of the evidence.

Ali's attorney had filed papers in Hennepin County, asking for a new trial. Ali will be sentenced for his role in the killings later this month.

Here's the full opinion.

Drunk driving: It's a man's world

Posted at 12:30 PM on October 4, 2011 by Bob Collins
Filed under: Crime and Justice

The Centers for Disease Control says drunk driving is down. In a report released today, the CDC says a nationwide survey of adults shows 1 in 50 acknowledged driving drunk in 2010, for a total of about 112 million instances of drunk driving.

The report says most of the drunks were men, who were responsible for 4 of every 5 episodes, and men ages 21-34 were responsible for about a third of all instances, even though they make up just 11 percent of the adult population.

Guess what section of the country is the poster child for drunk drivers?

The Midwest Census region had the highest annual rate of alcohol-impaired driving episodes at 643 per 1,000 population, which was significantly higher than the rates in all other regions (Figure 2). Excluding 12 states and DC with small sample sizes and potentially unstable rates, four of the seven states with rates of alcohol-impaired driving that were significantly higher than the U.S. rate overall were in the Midwest (Table 2). The Midwest also had the highest prevalence of binge drinking at 16.5%, which was significantly higher than the prevalence in the Northeast (15.1%), West (14.3%), or South (12.6%).

This isn't surprising, considering that the upper Midwest is the biggest binge-drinking section of the country and binge drinking is responsible for a large share of the drunk driving episodes, according to the CDC.

The agency also reported that people who say they don't always use seatbelts are four times more likely to drive drunk.

Seventy-six percent of persons living in states with a primary seatbelt law (which allows police to stop drivers and ticket them solely because occupants are unbelted) reported always wearing a seatbelt, whereas 58% of their counterparts living in states with a secondary law (which only allows police to issue seat belt tickets if drivers were stopped from some other violation) or no seatbelt law (New Hampshire) reported always wearing a seatbelt.

Minnesota has a primary seat belt law, although there was an effort in the Legislature this year to repeal it.

The CDC report on lower instances of drunk driving corresponds to the Minnesota Department of Public Safety's statistics for 2010, which showed a drop in drunk driving deaths in the state to the lowest number on record. Last year, 131 motorists were killed in alcohol related crashes, a 21-percent drop from 166 deaths five years ago.

But the percentage of total traffic deaths in Minnesota related to alcohol has not budged much, according to the Department of Public Safety.

One in seven current Minnesota drivers has a DWI on record, and one in 17 has two or more DWIs, according to the DPS.

Why the drop? The DPS says stronger DWI sanctions for all repeat offenders and for first-timers who blow .16 on the tests for alcohol-concentration level is part of it. "Under the new sanctions (effective since July 1), these offenders must use ignition interlock for at least a year or face at least one year without driving privileges. Interlock requires the driver to provide a breath sample in order to start the vehicle," the DPS said in a news release last month.

On refusing to stand for a judge

Posted at 11:34 AM on October 3, 2011 by Bob Collins (26 Comments)
Filed under: Crime and Justice, Religion

One of two Somali women charged with funneling money to a terrorist group in Somalia was taken out of a federal court in Minneapolis today because she refused to stand for the judge as the trial opened.

An attorney for Amina Farah Ali, 35, says she refused to stand on religious grounds.

This is a new experience for the justice system here, but there are several instances of this dilemma facing judges in Europe.

In 2008, Mohammed Enait refused to stand for a judge in the Netherlands because he considered all men equal. The court agreed to allow him to sit, although members of Parliament were outraged. "It can't be so that an individual with extreme ideas can tackle general manners," Sybrand van Haersma Buma.

Last year in the UK, several Muslim protesters who were accused of insulting soldiers returning from Iraq also refused to stand. They were threatened with contempt of court but the judge backed off, eventually allowing the defendants to enter after she was already in the courtroom.

The men claimed it would be a "grave and cardinal sin" to show anyone other than Allah respect by standing.

The Islam Q&A website addresses the question of whether Muslims should stand as a sign of respect:

The one who claims that there is any created being for whom one should stand out of respect have given that created being one of the rights of Allaah.

Hence the Prophet (peace and blessings of Allaah be upon him) said: "Whoever likes men to stand up for him, let him take his place in Hell." Narrated by al-Tirmidhi (2755); classed as saheeh by al-Albaani in Saheeh al-Tirmidhi. That is because this is part of the might and pride that belongs only to Allaah.

In further clarifying whether it's permissible to stand as a sign of respect, the site also says it is "not permissible for the Muslim to stand out of respect for any national anthem or flag, rather this is a reprehensible innovation which was not known at the time of the Messenger of Allaah (peace and blessings of Allaah be upon him) or at the time of the Rightly-Guided Caliphs (may Allaah be pleased with them), and it is contrary to perfect Tawheed and sincere veneration of Allaah alone."

Still, when hundreds of people -- many of them Muslim people from Somalia -- took their oath to become U.S. citizens last July, everyone stood.

'Does this mean we join the league of ordinary nations?'

Posted at 9:34 AM on October 1, 2011 by Bob Collins (12 Comments)
Filed under: Crime and Justice, War

As part of a war on terrorism, an American president is faced with a decision: Kill a suspected terrorist or try to bring him to justice within the recognized laws of the country?

President Obama considering the killing of al Qaeda leader Anwar al-Awlaki, an American citizen? No, Jed Bartlett in the NBC drama West Wing.

If yesterday's killing of Awlaki via a drone strike sounded familiar, it might be because of the eerily similar story line in the NBC series in 2002.

In the episode, defense minister Abdul Shareef of the fictional country Qumar, plans terrorist attacks against the U.S. In the season finale, President Jed Bartlett orders Shareef's assassination after a fight with his conscience and his chief of staff. (You can scroll ahead to 4:16)

Salon blogger Glenn Greenwald verbalized yesterday in writing about al-Awlaki's killing what West Wing creator Aaron Sorkin might've been thinking in writing his story line about the assassination of Abdul Shareef:

What's most striking about this is not that the U.S. Government has seized and exercised exactly the power the Fifth Amendment was designed to bar ("No person shall be deprived of life without due process of law"), and did so in a way that almost certainly violates core First Amendment protections (questions that will now never be decided in a court of law). What's most amazing is that its citizens will not merely refrain from objecting, but will stand and cheer the U.S. Government's new power to assassinate their fellow citizens, far from any battlefield, literally without a shred of due process from the U.S. Government.

"I'm not going to have any objection saying the Pledge of Allegiance tomorrow," President Bartlett's chief of staff responds to his boss' reluctance to order the kill.

That mirrors the comment of an unnamed Obama administration official when pressed on the al-Awlaki killing:

"As a general matter, it would be entirely lawful for the United States to target high-level leaders of enemy forces, regardless of their nationality, who are plotting to kill Americans both under the authority provided by Congress in its use of military force in the armed conflict with al-Qaida, the Taliban, and associated forces as well as established international law that recognizes our right of self-defense," the official said.

Is an RC airplane a threat?

Posted at 4:11 PM on September 28, 2011 by Bob Collins (6 Comments)
Filed under: Crime and Justice

A Massachusetts man has been indicted today for conspiring to blow up the Capitol and Pentagon with a radio-controlled (RC) airplane.

This should spawn a series of TV reports on the dangers of the suspiciously innocuous toy.

Someone should ask, "is this even possible?" In its indictment, the Justice Department said, "Remote controlled aircraft are capable of carrying a variety of payloads (including a lethal payload of explosives), can use a wide range of takeoff and landing environments, and fly different flight patterns than commercial airlines, thus reducing detection."

It's not a new concern, perhaps. Check out this 2004 thread on an RC forum in which a person asks what RC model of airplane could hoist the most amount of weight. By the middle of the thread, at least one participant was starting to get suspicious of why someone was asking about the payload capacity of RCs.

Prosecutors said the suspect "ordered a remote controlled aircraft. He also received from undercover agents on Tuesday C-4 explosives (or at least he thought) , six fully-automatic AK-47 assault rifles (machine guns) and grenades."

According to the indictment, the man ordered a miniature F-4 Phantom jet, and an F-86 Sabre jet, capable of carrying 25 pounds of explosives. Anyone could order one, although this particular company reports the $179 model is sold out:

But the manufacturer says the flying weight of the model is 13 pounds, thanks primarily to its very large motor.

Stuffing it full of 25 pounds of explosives? It's unlikely an aircraft whose flying weight is 13 pounds could perform well in the air at 38 pounds, if it could get off the ground at all, but maybe.

The amount of fuel it would require -- unless it was going to be launched from the front steps of the Capitol -- would need to be considerable.

Certainly, 25 pounds of C4 is a considerable blast. This is what 20 pounds would look like:

That's if the explosive were inside blowing out. Ferdaus, who majored in physics, must also have been aware that if you fly something as light as a balsa-wood RC airplane into a granite dome, it's (a) going to be bounce off and (b) if it does explode, the impact of the blast would be away from the structure in question. On 9/11, the jetliners had the mass and speed to penetrate inside the World Trade Center and Pentagon, and then explode.

In his planned attack on the Pentagon, the man allegedly intended to use only 5 pounds of C4 per plane.

In any event, there's no indication from the indictment, which is quite detailed, that Ferdaus ever did a flight test with his toy to see whether it could carry the payload he wanted to deliver. That would be a great story for an enterprising reporter who wouldn't mind getting a visit fro the FBI.

Far more serious, perhaps, than the threat posed by the RC, is what Ferdaus allegedly intended to do after the Capitol dome collapsed: storm the Capitol and shoot everyone still alive.

What was in Cassie Gordon's head?

Posted at 2:16 PM on September 28, 2011 by Bob Collins (1 Comments)
Filed under: Crime and Justice

When Katherine "Cassie" Gordon was killed on I-394 in Golden Valley last week, it wasn't the first time she saw the business end of a police officer's gun, according to her brother.

The Star Tribune reports the woman tried to get help eight weeks earlier from Fairview Southdale Hospital after telling police the "spirit" of Satan was inside her, but the hospital, citing privacy policy, isn't saying what treatment she received, if any.

That information has gotten her brother, David Stollbrack, wondering what else was in his sister's head and when it all started to go wrong for her? He says he hadn't seen her for some time, but knew she had been troubled. Today, he says, he's been thinking about an incident following the 1972 killing of Minneapolis police officer Inno Suek, that he says his sister occasionally talked about.

"My family went on vacation over the Thanksgiving holiday. While we were away, (brothers)Michael, Johnny, and Cassie were home and a guy named Frank Gavenda committed a liquor store robbery, and killed an off-duty cop. As the search went on, they came over to my family home because he was associated with my brother, Johnny. They came to the door and knocked on the door. Cassiee came to the door and they said, 'Open the door! We're looking for Frank.'"

"She said, 'Do you have a warrant?'"

"The cop drew his pistol, banging on the glass, pointed it at her and said, 'Open the door, bitch, or I'm going to blow you away.' And you know what? I don't think that ever went away. Was that the voices in her head that wouldn't go away? The demons? She was only 18 then," he recalled.

"All I know is she was successful. Very smart, and very beautiful and when she wanted to do something, she got it done," he said.

Mr. Stollbrack says his sister had been driving back and forth between Minnesota and California. "She raised a good family," he said, noting a son is a music producer in California.

The Jackson trial

Posted at 11:28 AM on September 28, 2011 by Bob Collins
Filed under: Crime and Justice

Despite our tendency to avoid all coverage of celebrity-related trials in Los Angeles, there's no way any fan of pop culture can ignore the tape that was played in the trial of Michael Jackson's doctor yesterday.

The brain can process complex things. But it will certainly struggle with the notion that this person...

... is also this person...

Los Angeles County Deputy District Attorney David Walgren blamed Dr. Conrad Murray for Jackson's death, saying he abandoned "all principles of medical care" when he used the surgical anesthetic propofol to put Jackson to sleep every night for more than two months.

Revenge in the digital age

Posted at 2:03 PM on September 26, 2011 by Bob Collins (10 Comments)
Filed under: Crime and Justice

A high-tech pushback is underway against the New York City police officer who pepper sprayed a group of people who were protesting in the city's financial district over the weekend.

One of the photographers who filmed the scene identified the officer by his name badge. Then the group, "Anonymous," d0x'd the officer -- seeking out personal information online and then spreading it:

As we watched your officers kettle innocent women, we observed you barberically pepper spray wildly into the group of kettled women. We were shocked and disgusted by your behavior. You know who the innocent women were, now they will have the chance to know who you are. Before you commit atrocities against innocent people, think twice. WE ARE WATCHING!!! Expect Us!

"Anonymous" provided employment data, but also provided "possible" home addresses as well as the names of "possible relatives."

This could certainly go badly.

Texting laws making little difference

Posted at 8:13 AM on September 25, 2011 by Bob Collins (6 Comments)
Filed under: Crime and Justice

I don't text while driving. I don't have text services on my cellphone plan and I've never developed the talent to press the proper key on first try. Still, I admit to being distracted by the phone, especially when I use the GPS function. You have to push a button and you have to look at the phone. What's the difference in the danger of distraction between looking at it and pushing a few buttons when you're trying to find your destination, and looking at it and pushing a few buttons when you want to send a text? Probably not much except, perhaps, in the eyes of the law.

North Dakota's new ban on texting while driving is proving difficult to enforce, the Fargo Forum reports today, because it's too easy to say to the cop who just stopped you, "I was looking up a contact to make a phone call," which is still legal.

Minnesota is apparently finding the same difficulty in enforcing a similar law that went into effect in 2008.

Sgt. Jesse Grabow, the patrol's public information and safety officer serving the Detroit Lakes and Thief River Falls districts, said he personally has issued "maybe a dozen" tickets and probably twice as many warnings.

"There's no doubt about it; it's a difficult law to enforce, just because of the nature of (trying to) prove whether they're texting on their phone or just simply browsing through their address book to call somebody," he said.

In Clay County (Moorhead), only a few dozen tickets have been issued for texting-whilte-driving in the last three years. Statewide in North Dakota, only two tickets have been issued in the month or so since the law went into effect.

It may well be that short of banning cellphone use in cars (would that ban portable GPS use, too?), there's no legislation that's going to make a big difference.

Court: There's no 'CSI Effect'

Posted at 1:11 PM on September 23, 2011 by Bob Collins (3 Comments)
Filed under: Crime and Justice

It had to happen sooner or later. CSI, the TV show about forensics and crime, has become the center of a court case in Massachusetts.

There, The Supreme Judicial Court has ruled that a man was not denied a fair trial, because a judge questioned jurors about the "CSI effect," which is the assertion that because more people watch television than go to law school (apparently by a slim margin, anecdotal evidence suggests) , people have unreasonable expectations of prosecutors when it comes to the evidence presented.

The trial judge asked potential jurors whether the state "is never able to prove a case beyond a reasonable doubt unless it presents scientific evidence to corroborate witness testimony."

Thirty-eight people said "yes," and were excused.

Nonetheless, the SJC not only appeared to rule the man received a fair trial, but suggested that there is no CSI effect, the Boston Globe reports.

The court said that while anecdotes have circulated and the media has reported on it, there is "little empirical evidence" supporting the theory that jurors who watch forensic science TV shows such as CBS-TV's popular CSI franchise will hold prosecutors to an unreasonably high standard of proof.

But the court also said some jurisdictions allow judges to ask jurors about their views on forensic or scientific evidence. And the court noted a state appeals court decision upholding a conviction where a similar question was posed to jurors.

The high court said judges are allowed a large degree of discretion in the jury selection process and concluded that the trial judge had not abused his discretion and tilted the case toward the prosecution.

"The questions were tailored to ensure that seated jurors were capable of deciding the case without bias and based on the evidence," the court said.

In a 2008 paper, Michigan trial judge Donald Shelton revealed his study showed that jurors had expectations for real court evidence based on the TV shows they watched, but they were also better to distinguish good evidence from bad.

For all categories of evidence--both scientific and nonscientific--CSI viewers (those who watch CSI on occasion, often, or regularly) generally had higher expectations than non-CSI viewers (those who never or almost never watch the program). But, it is possible that the CSI viewers may have been better informed jurors than the non-CSI viewers. The CSI viewers had higher expectations about scientific evidence that was more likely to be relevant to a particular crime than did the non-CSI viewers. The CSI viewers also had lower expectations about evidence that was less likely to be relevant to a particular crime than did the non-CSI viewers.

The study also found that jurors were not more likely to acquit a defendant without scientific evidence being presented:

In the "every crime" scenario, CSI viewers were more likely to convict without scientific evidence if eyewitness testimony was available.

In rape cases, CSI viewers were less likely to convict if DNA evidence was not presented.

In both the breaking-and-entering and theft scenarios, CSI viewers were more likely to convict if there was victim or other testimony, but no fingerprint evidence.

How to be sure the guilty are really guilty

Posted at 3:23 PM on September 19, 2011 by Bob Collins (8 Comments)
Filed under: Crime and Justice

Unless something changes, Troy Davis is going to be executed on Wednesday for killing a police officer in Georgia. Seven of the nine non-police witnesses have recanted their original testimony identifying Davis as the killer.

"Police went to the scene, and they took quite a lot of witnesses -- and all of the witnesses talked to each other -- and they showed a single photo to various witnesses," recalls Barry Scheck, the co-director of The Innocence Project. "You're now in this difficult situation of asking, 'Is this a reliable case?' It's an eyewitness case and now we have this terrible doubt surrounding it."

What could have prevented it? Possibly, a witness identification procedure advocated by a group of scientists, including one at Augsburg College in Minneapolis, who officially released their study today showing that a traditional "lineup" method of identifying suspects in a crime is less reliable than a so-called "double blind" method.

Their study, first reported in the New York Times recently, found witnesses made fewer mistakes in identification if they're shown members of a lineup one at a time rather than as a group.

Dr. Gary Wells of Iowa State University, the lead researcher, said the problem with the group lineups, known as simultaneous presentation, is that witnesses tend to compare people in the lineup to each other "and to decide who looks most like the perpetrator and then they identify that person," he said.

"There's always someone who looks more like the perpetrator in the lineup than others in the lineup, even when the perpetrator isn't there," he said.

"If they look at six pictures (at once), they pretty much assume one of them is a suspect," according to Dr. Nancty Steblay of Augsburg College. "None of the six pictures looks exactly like memory, there's this subtle shift away from, 'is the culprit in the lineup?, do I see the person who robbed me?', to 'which one is closest to what I remember?' And that is usually a sound procedure if the culprit is in the lineup. What we worry about is when the culprit isn't in the lineup. Witnesses are very bad at recognizing when someone is not there."

In DNA exoneration cases, 75% of those who were exonerated after being convicted by juries, are cases involving cases of mistaken identification.

In a "double blind" lineup, the researchers said, witnesses/victims are shown photos of suspects (or so-called "filler photos) individually, and not by someone who is an investigator in the case.

It's a method used now in Hennepin and Ramsey counties. Dr. Steblay has been researching the method since the 1990s and worked with then Hennepin County district attorney Amy Klobuchar in 2004 to see if it provided more accurate identification and, hence, stronger cases.

"We didn't run a comparative test like the one released today," she said. "Amy Klobuchar had asked for volunteers just to see if it was possible for implementation to work. At the time there was a lot of worry about 'the sky will fall if we start doing something different,' or 'it will be too expensive." The question was can it be implemented, and they were implemented and ... it all went well."

"I became involved in this in the early 1990s, about the same time that these DNA exonerations began to pop and more and more we recognized that scientists have something to say about why these wrongful convictions occurred and how we can reduce the likelihood they happen in the future," she said.

Some states -- Texas for example -- are now requiring law enforcement agencies to develop a plan for ensuring that the lineup procedures used are most likely to result in an accurate identification of a suspect. Minnesota is not one of those states.

"I wish it were because Ramsey County, Hennepin County, and the Bureau of Criminal Apprehension all use double-blind sequential procedures and there would be leaders in how to put together and initiate model legislation," she said.

The third researcher on her team, Dr. Jennifer Dysart of John Jay College of Criminal Justice in New York, was in Atlanta today, hoping to detail her findings to the Georgia board that is deciding whether Troy Davis lives or dies.

"The Pardon and Parole Board limited the defense portion today to three hours and because of the number of questions that the Board had for other witnesses, I was not permitted to testify this morning," she said.

Charges in the Senser case

Posted at 3:16 PM on September 15, 2011 by Bob Collins (35 Comments)
Filed under: Crime and Justice

Mike Freeman, the Hennepin County attorney, is holding a news conference this afternoon at 1:30, to discuss charges filed in the case of Amy Senser, who has acknowledged driving the SUV that struck and killed Anousone Phanthavong in August.

update 11:39 a.m. - Star Tribune reports Senser will be charged with criminal vehicular operation.

I'm outside the Hennepin County Government Center where County Attorney Mike Freeman is holding a news conference (1:30 p.m.) and the charges will be detailed. Feel free to comment and ask questions.

There's been an ongoing discussion about why it's taken so long for charges to be filed and the role of "high-priced lawyers" in the case going on here (I'll turn the comments off on that post at 1:30 and things will move over to this page).

TIMETABLE OF THE CASE

Here's the timetable of the events leading up to today's charges:

Tues. August 23 - Anousone Phanthavong, 38, of Roseville, is run over while filling his car with gasoline on the ramp from westbound Interstate 94 to Riverside Avenue.

Wes Aug 24 - Attorney for Senser family contacts State Patrol and turns over car (SUV) involved. Does not indicate who was driving.

Thurs. Sep 1 - Fox 9 breaks story that vehicle belonged to Joe Senser.

Friday Sept 2 - Amy Senser is identified as the driver of the vehicle in a statement released by the family lawyer.

Tues. Sept 5 - Family files civil suit against Senser.

Wed. Sept 14 - Medical examiner lists official cause of death.

Thurs. Sept 15 - Mrs. Senser is charged with criminal vehicular homicide.

WHAT IS VEHICULAR HOMCIDE?

Here is the Minnesota statute:

.Criminal vehicular homicide or operation; crime described.

A person is guilty of criminal vehicular homicide or operation and may be sentenced as provided in subdivision 1a, if the person causes injury to or the death of another as a result of operating a motor vehicle:

(1) in a grossly negligent manner;

(2) in a negligent manner while under the influence of:

(i) alcohol;

(ii) a controlled substance; or

(iii) any combination of those elements;

(3) while having an alcohol concentration of 0.08 or more;

(4) while having an alcohol concentration of 0.08 or more, as measured within two hours of the time of driving;

(5) in a negligent manner while knowingly under the influence of a hazardous substance;

(6) in a negligent manner while any amount of a controlled substance listed in Schedule I or II, or its metabolite, other than marijuana or tetrahydrocannabinols, is present in the person's body;

(7) where the driver who causes the accident leaves the scene of the accident in violation of section 169.09, subdivision 1 or 6; or

(8) where the driver had actual knowledge that a peace officer had previously issued a citation or warning that the motor vehicle was defectively maintained, the driver had actual knowledge that remedial action was not taken, the driver had reason to know that the defect created a present danger to others, and the injury or death was caused by the defective maintenance.
Subd. 1a.Criminal penalties.

(a) A person who violates subdivision 1 and causes the death of a human being not constituting murder or manslaughter or the death of an unborn child may be sentenced to imprisonment for not more than ten years or to payment of a fine of not more than $20,000, or both.

(b) A person who violates subdivision 1 and causes great bodily harm to another not constituting attempted murder or assault or great bodily harm to an unborn child who is subsequently born alive may be sentenced to imprisonment for not more than five years or to payment of a fine of not more than $10,000, or both.

(c) A person who violates subdivision 1 and causes substantial bodily harm to another may be sentenced to imprisonment for not more than three years or to payment of a fine of not more than $10,000, or both.

(d) A person who violates subdivision 1 and causes bodily harm to another may be sentenced to imprisonment for not more than one year or to payment of a fine of not more than $3,000, or both.
Subd. 1b.Conviction not bar to punishment for other crimes.

A prosecution for or a conviction of a crime under this section relating to causing death or injury to an unborn child is not a bar to conviction of or punishment for any other crime committed by the defendant as part of the same conduct.
Subd. 2.

[Repealed, 2007 c 54 art 3 s 15]
Subd. 4a.Affirmative defense.

It shall be an affirmative defense to a charge under subdivision 1, clause (6), that the defendant used the controlled substance according to the terms of a prescription issued for the defendant in accordance with sections 152.11 and 152.12.
Subd. 5.Definitions.

For purposes of this section, the terms defined in this subdivision have the meanings given them.

(a) "Motor vehicle" has the meaning given in section 609.52, subdivision 1, and includes attached trailers.

(b) "Controlled substance" has the meaning given in section 152.01, subdivision 4.

(c) "Hazardous substance" means any chemical or chemical compound that is listed as a hazardous substance in rules adopted under chapter 182.

NY v. 9/11 families

Posted at 10:45 AM on September 14, 2011 by Bob Collins
Filed under: Crime and Justice

Now that the 10th anniversary commemorations at the World Trade Center site are over, many families of the victims of the attack are back trying to settle a dispute that has raged in one fashion or another since: What to do with the remains of their loved ones.

Years ago, for example, I wrote about one of the original insults the families felt they'd suffered: the harboring of the remains at a city dump.

Now, they're protesting the intention to put the unidentified remains in the 9/11 Museum.

"No other memorial would give the indignity of putting human remains in the basement of a private museum," said Sally Regenhard, whose son Christian was a firefighter and died in the attacks.

"In 2002 we were told by the mayor and everyone else that the remains were going to be separate and distinct from any museum or any visitor center," said Deputy Chief Jim Riches, a retired firefighter who lost his son Jimmy, 29, also a member of the FDNY, in the North Tower. "I guess they lied to us because In 2009 we found out that they intended to put them seven stories below grade in a museum where they're going to charge $20."

The families want an above-ground tomb that is available to them at any hour, not for $20 when the museum is open.

They'd like to tell other families about the plan, but the City of New York refuses to give them the names and addresses of next-of-kin of 9/11 victims.

A hearing on a lawsuit they've filed is being heard in New York this morning.

The Senser case

Posted at 4:37 PM on September 13, 2011 by Bob Collins (8 Comments)
Filed under: Crime and Justice

I couldn't figure out why this post -- the Lynch mob mentality -- was suddenly attracting comments again, 10 days after it was first posted in this space.

The column suggested that the legal system be allowed to work -- or prove it can't -- in the tragic case of Anousone Phanthavong, who was struck and killed by an SUV we now know was being driven by the wife of former Minnesota Viking Joe Senser (the original post was written when the twitterverse assumed it was Mr. Senser).

The mystery was solved when I saw City Pages posted an interesting story about an op-ed from Anna Prasomphol, owner of a restaurant where Mr. Phanthavong worked.

For her part, Prasomphol is sick of local media taking the point of view of the Sensers, and not the Phanthavongs. She writes that coverage has been from that perspective since the Sensers admitted it was Joe Senser's Mercedes SUV, driven by Amy, that killed Phanthavong.

In her piece, which you can find here, Ms. Prasomphol says...

But I do not think the local news media cares about Ped's side of the story. Gail Rosenblum's column does not allow people to leave comments. You can leave a comment at Bob Collin's (sic) MPR News Cut blog, but if you defend Ped, he will argue with you in the comments.

I can surely understand Ms. Prasomphol's pain. Who couldn't?

But my "arguments" have nothing to do with defending Mrs. Senser nor failing to understand the position of the family of Mr. Phanthavong. My post and subsequent comments were strictly on behalf of the investigatory process and, ultimately, the judicial process.

What we don't know yet are the details surrounding that acknowledgement. Clearly one side believes it's unmistakable to have known she hit a man. The other side would appear to be positioning for a defense she didn't. That's was investigations and -- if necessary -- subsequent trials are for.

I get that it's not popular. There are certain constitutional protections that are guaranteed to people, even the ones who may be detestable to some people. Extending those protections to the popular isn't where the strength of the constitution comes from.

"There's the notion that someone else, whoever else that would be, a normal citizen, would be in jail right now," Eric Roeske of the Minnesota State Patrol told MPR's Tim Nelson last week. "We're not focused on putting someone in jail right now. We're focused on gathering evidence for a criminal conviction. And if it takes a couple of weeks to do that, we recognize that it's just going to take that long. We don't want put together a shoddy case and rush through something."

In journalism, there are only 6 elements to any story: Who, what, why, when, where, and how. Whatever action is eventually taken against Mrs. Senser will depend on the "why," the one question for which we do not yet have an answer. In the absence of an answer to any of those questions, we're not ethically licensed to make them up.

Anyone who's not a journalist, is under no such restriction.

Judge: Horn-honking is not protected speech

Posted at 11:56 AM on September 12, 2011 by Bob Collins (10 Comments)
Filed under: Crime and Justice

This just in from Wisconsin: You have no constitutional right to honk your horn.

As with everything in Wisconsin that doesn't stem from the Packers, this stems from Gov. Scott Walker's move last spring to limit the collective bargaining rights of some public employees, the Milwaukee Journal Sentinel reports.

Azael Brodhead, a 35-year old Iraq war veteran who works for the Department of Corrections, regularly drove by the governor's house, honked his horn, stuck his middle finger up (in Packerland, that means "we're number one." Outside of the governor's house, it means something different), and shouted "recall Walker."

State troopers assigned to the governor eventually gave him a ticket and last week he lost his court case, where he argued a First Amendment right.

A judge said she could find no precedent declaring horn honking to be protected speech (Note to judge: I don't think that necessarily precludes you from making one).

Now, the the paper reports, his state employers are trying to determine if he should be disciplined.

But supervisors in his office have initiated an internal investigation to see if he violated workplace rules with his actions. In particular, Brodhead said, they are trying to determine whether he should be disciplined for being abusive toward state troopers when he was pulled over. He has contacted his public employees union to represent him in the matter.

"I'm sure this was politically motivated," Brodhead said.

In fact, the police summary of the incident does accuse Brodhead of using repeated profanities, such as saying the troopers protected the "piece of (expletive) governor" or saying "your boss is a (expletive) (expletive)." The trooper also quoted Brodhead as directing strong language at the police, calling them "(expletive) cops" and more.

The Mall of America's surveillance society

Posted at 11:57 AM on September 7, 2011 by Bob Collins (9 Comments)
Filed under: Crime and Justice

This is the kind of suspicious activity that can get you an interview with the FBI. The video was shot from the parking ramp at the Mall of America.

The Center for Investigative Reporting has pulled the curtain back from the world of counterterrorism at the Mall of America.

Their story, which is posted on its website and airs on NPR this afternoon, says many Mall of America visitors have ended up in counterterror reports without their knowledge, after private security officers interviewed them.

The report raises the possibility that the mall guards are using racial and ethnic profiling, a charge the mall denies.

In some cases, the questioning appears to have the hallmarks of profiling - something that officials at the mall deny. In nearly two-thirds of the cases reviewed, subjects are described as African American, people of Asian and Arabic descent, and other minorities, according to an analysis of the documents.

Mall spokesman Dan Jasper said the private security guards would not conduct interviews based on racial or ethnic characteristics because "we may miss someone who truly does have harmful intent."

A mall spokesman, however, acknowledged to the reporters that the guards' activities "may infringe on freedoms."

"We're charged with trying to keep people safe. We're trying to do it the best way we can. You may be questioned at the Mall of America about suspicious activity. It's something that may happen. It's part of today's society," mall spokesman Dan Jasper said in a statement.

Here's an example of a report that ended up in the hands of law enforcement. The suspicious behavior? The man took pictures inside the mall.

"For all the 30 years that I have lived in the United States, I've never been a suspect," said Emil Khalil of California. After being questioned for taking pictures, the FBI stopped him and his brother at the airport for more questioning.

Another man, an Army veteran, was "caught" videotaping in the mall. He was questioned for two hours, the report said.

(Francis) Van Asten said it was not clear to him at the time why he was stopped. After all, he was told nothing prohibited him from taking photographs or footage of the mall. But the mall's guards still called Bloomington police, and they alerted the FBI Joint Terrorism Task Force. Van Asten was given a pat-down search, and the FBI demanded that his memory card be confiscated "for further analysis."

Exhausted and rattled, Van Asten had trouble finding his car after the ordeal was over.

"I sat down in my car and I cried, and I was shaking like a leaf," Van Asten said in an interview at his home. "That kind of sensation doesn't leave you real quickly when you've had an experience like that."

Another person was questioned because he was writing in a notebook while waiting for his lunch date.

"Before the male would write in his notebook, it appeared as though he would look at his watch. Periodically, the male would briefly look up from his notebook, look around, and then continue writing," the security guards' report said.

Subsequently, he was photographed, his information recorded, and he ended up in a police report as a person of interest.

"Everybody that lives in this country," one mall visitor said, "is a person of interest as far as these reports are concerned."

There's no indication that any terrorist activity has been uncovered at the mall.

Ever been questioned at the Mall of America? Tell me about it below.

Caught in the middle of Rice County child protection case

Posted at 3:34 PM on September 6, 2011 by Bob Collins (9 Comments)
Filed under: Crime and Justice, Health

A heartbreaking case in Rice County is a compelling example of how a child can get caught in a tug-of-war in the child protection system in Minnesota.

Today, the Minnesota Court of Appeals ruled that a juvenile court and the county coerced parents of a child apparently in need of mental health treatment to admit that the need for intervention "are (is) due to deficiencies in their parenting."

The story starts in November 2010 when the teenager ran away from home. Police brought him home but the police officer thought he'd be at risk there, so he was placed on a 72-hour emergency "hold." Rice County, through a social worker, petitioned the juvenile court to determine that he was a child in need of protection or services (CHIPS).

At a hearing last winter, a juvenile court judge told the parents, "If you want to admit that your son has special care needs and you're unable to provide those, that is not saying that you're not a good parent. That's saying (the child) has special care need and you're not ... the Mayo Clinic and you're not a psychiatrist ..."

"I am a damn good mother," the woman insisted.

The parents admitted to the petition for services, believing their son would be placed at Gerard Academy, a residential treatment facility, at county expense. Instead, their child was put in foster care. The county, according to the Appeals Court, then claimed the placement "was necessary to keep him safe from his parents."

The parents tried to withdraw their petition, but a court refused.

In a decision today, Appeals Court Judge Terri J. Stoneburner suggested the county was threatening to withhold any services unless the parents admitted to the petition, writing that "a threat to act in a manner that is not in a child's best interests constitutes a manifest injustice" in ordering the decision overturned.

In a dissent, however, Appeals Court Judge Heidi S. Schellhas said the father of the child had been charged with physical abuse and that the parents had previously told Rice County "they did not want him back in their home." And that the teen didn't want to return home after running away because he was afraid of punishment.

She said the juvenile court was clear that the parents would not be able to dictate the services their child would get once they signed the paperwork, and that the parents were free to place their child in a treatment program of their choice at their own expense instead.

"The district court considered all of the parents' argument in connection with their motions to withdraw their admission, and, in my opinion, properly rejected their arguments and denied their motions," she said.

The case settles who won the right to withdraw the petition for services. What it doesn't clear up is what happens to the teenager caught in the middle. I've placed calls to his public defender for clarification.

Find the entire opinion here.

Journalism and the lynch mob mentality

Posted at 10:53 AM on September 2, 2011 by Bob Collins (38 Comments)
Filed under: Crime and Justice, Media

I've never been a big fan of the policies in some Twin Cities newsrooms -- including ours -- of (generally) not naming suspects in criminal cases until charges are actually filed. It's not that I don't agree that doing so may lead to the destruction of reputations when facts aren't known, it's that the policies -- generally -- are filled with hypocrisy. The news that broke yesterday that an SUV owned by former Vikings player and broadcaster Joe Senser was involved in the hit-and-run death of a man is a sadly perfect example.

When charges are filed, charging documents are usually released to the public, giving us more facts to provide a somewhat more credible picture of what happened. But there's nothing in the journalist's book of ethics that says these are the ones you extend to average people, and these are the ones you extend to famous people -- whether they're white and rich or not.

Why? Because ethics don't work that way; you either have them or you don't. "Everyone else is doing it" has always been a poor foundation for a good argument. The entire philosophy of fairness depends on an equal application.

What we do know, based on some digging by reporters, is that the SUV is probably the one that killed Anousone Phanthavong and that it is owned by Joe Senser.

On Twitter this morning -- and other media, too -- it doesn't matter what we don't know.

Meanwhile, the Star Tribune is already running a poll saying Senser's is a moral dilemma, even though we don't know exactly what dilemma that is. No matter. Seventy-five percent say they'd turn in a family member involved in a hit-and-run. Good to know, but it doesn't really tell us what's going on here. It only implies that the Sensers are actively engaged in stonewalling an investigation. Maybe they are. Maybe they aren't. Certainly, we don't know.

There's nothing wrong with speculation per se. I do it all the time when writing about aviation incidents. But we have a responsibility to be informed and connect dots that are facts. We're not doing that here and we in the news media are willing accomplices by pretending all of the reasons for protecting the identity of someone who hasn't been charged with a crime don't also exist here.

We don't know that Senser and his family are getting preferential treatment. We don't have any evidence that investigators are cutting him a break because he's rich and/or white. We don't know who was driving. We don't know why they didn't stop. We don't know what the advice of their attorney is, although it's worth pointing out that the attorney contacted the State Patrol.

What we do know is that investigators in these parts have a good track record of figuring out why someone ends up dead. The rest is up to a jury that, hopefully, isn't on Twitter today.

The Senser family promises a statement "in a day or two," and perhaps then we'll have a clearer picture of what's going on here. In the meantime, reality will be created by the dribs and drabs of information from people who have an interest in the reality dribs and drabs of information create.

Update 3:18 p.m. - The attorney for the Senser family reports the SUV was driven by Amy Senser, Joe Senser's wife.

Update 5:04 p.m. - Here, for background, is MPR's policy:

In cases where law enforcement officials arrest or otherwise detain an individual without charging that person with a crime, MPR News may name such individuals in its reports. It will be up to the News Director or editor(s) overseeing the story to determine whether the situation warrants naming the suspect. Editors should consider whether MPR's naming of an uncharged suspect will do irreparable harm to the suspect's reputation if authorities decide not to charge and whether the public's right to be informed is worth taking that risk.

In cases where a decision to name an uncharged suspect is made it is incumbent on MPR News to provide as much context as possible to let the audience determine whether an arrest was justified. Such context must include the fact that charges have not been filed, an explanation of why not, and how long the law enforcement agency can legally detain the suspect. and like any story, mpr news will make every effort to contact principles in the story. Stories should also include any information about evidence implicating the suspect or any other information that will allow the audience evaluate the validity of an arrest. and finally, if MPR News produces a story about a suspect's dentention or arrest without charges, it is committed to giving similar coverage in the event the suspect is released.

Is Dominique Strauss-Kahn owed an apology?

Posted at 12:48 PM on August 24, 2011 by Michael Olson (8 Comments)
Filed under: Crime and Justice

A New York judge yesterday dismissed the rape charges against Dominique Strauss-Kahn, He is free to return to France. This comes after he was forced to give up his job leading the International Monetary Fund. The allegations brought against him are likely to complicate his chances to win the French presidency.

Columnists including Janis Turner of The Times were quick to jump on Strauss-Kahn as the allegations emerged.

If an apology is due, Fox News' Lis Wiehl says it shouldn't come from the prosecutors.

Did the prosecutors do the right thing in arresting DSK, and taking the evidence to a grand jury? Absolutely. They had a complaining victim with a compelling story, physical evidence of a sexual encounter, and a possible rapist about to board a plane for France. They had to act fast and ask more questions later. And the grand jury found the evidence convincing enough to meet the lower standard of probable cause, and to issue the charges.

James Cohen, a professor of law at Fordham University, tells BBC News, "The system is supposed to get it right and it did get it right. There was a charge made and no reason not to accept it. The defense raised the consensual sexual encounter issue, the [district attorney] investigated the background of the victim and found she had credibility issues. ... So it's not a perfect process, but it worked as it's supposed to."

Tracy Clark-Flory examined the case against dismissal in Slate.

Jaclyn Friedman, author of "Means Yes: Visions of Female Sexual Power and a World Without Rape," says the major problem here is "the way the adversarial justice system works," she told me by phone. "Prosecutors only like to bring to trial cases they feel they can win, which makes them reluctant to bring difficult cases, which usually works against anyone alleging rape." As a result, that "sends the cultural message that most rape victims are lying, which makes it even harder to convince a jury because we're all jurists."

The system is imperfect writes U.S. News' Susan Milligan.

Sexual assault is the one crime in which the victim is as much on trial as the alleged attacker, and Diallo learned this lesson about U.S. jurisprudence the hard way. Strauss-Kahn got his own unfortunate lesson as well about the criminal justice system here, the perp walk and media frenzy surrounding his arrest were appalling and prejudicial. But while Strauss-Kahn was indeed unfairly treated in that manner, that doesn't mean he didn't attack anyone.

Poverty and riots

Posted at 2:15 PM on August 16, 2011 by Michael Olson (3 Comments)
Filed under: Crime and Justice

"These riots were not about poverty" -- Prime Minister David Cameron.

Unequivocal statements like Cameron's implore journalists to dig deeper.

It is striking when you look at the data to see the poverty rate of the neighborhoods in the UK where people were arrested for looting and riot-related activities.

The Guardian found:

• The majority of areas where suspects live are deprived - and 66% of them got poorer between 2007 and 2010, when the last survey was published
• 41% of suspects live in the 10% most deprived places in England

Poverty and riots are complex matters that shouldn't be viewed through the lens of a data map alone. But interacting with the Guardian's data map here provides another opportunity to think deeply about what unfolded on the other side of the Atlantic last week.

Social shaming

Posted at 3:18 PM on August 11, 2011 by Bob Collins (9 Comments)
Filed under: Crime and Justice, Tech

Talk about swift justice. Manchester police have not only already gotten convictions of people arrested in this week's riots in the UK, they're also using Twitter to publicly shame them.

Check out the punishments being handed out. Four months for stealing a violin. Four months for swearing...

The constabulary is also using Flickr to try to identify people who may have also been involved in the rioting. They plan to use facial recognition software in the effort.

And the police organization's Facebook page is being used for people to provide tips about the rioters.

So far, it's going over big with the masses...

Would this idea work here?

Rioter: 'I'm getting my taxes back'

Posted at 10:43 AM on August 9, 2011 by Bob Collins (11 Comments)
Filed under: Crime and Justice

SkyNews' Mark Stone challenged looters in London to explain why they were rioting and found that just about any behavior can be excused by making it about taxes.

Reality, of course, is different. This 89-year-old barber didn't collect any taxes from the people who destroyed his store and livelihood. And what on earth would you loot from a barber shop? Shaving cream?

Find more pictures at the Boston Globe's Big Picture blog.

Social networking and the hoodlum

Posted at 2:08 PM on August 8, 2011 by Bob Collins (1 Comments)
Filed under: Crime and Justice, Tech

Twitter may have had a role to play in the rioting in looting that took place over the weekend in London, some officials say.

Last night, police battled rioters and looters in several areas of London after a man was shot and killed by police in the northern suburb of Tottenham.

"The police are ahead of the curve in information technology and would have experience of the use of social- networking sites by troublemakers," Steve O'Connell, a member of the Metropolitan Police Authority, which monitors London's Metropolitan Police Service, told Bloomberg News. "The bad guys were using these sites to target areas quickly. Small bands of ne'er-do- wells were descending on high-quality stores to loot."

Where would ne'er-do-wellers learn such a thing?

Maybe in the USA.

Since late last spring, Chicago authorities, for example, have been trying to combat flash mobs of crooks and thugs who've used social networking to coordinate their attacks and stay one step ahead of the cops.

Today, the mayor of Philadelphia warned parents that they'd be held responsible for the flash mob ne'er-do-welling by their kids.

"It is your responsibility to know where they are, what they are doing and who they are with. They are your children. You need to raise them. You are responsible for them," Mayor Michael Nutter said while announcing a curfew for kids.

He said parents who are called to pick up a child breaking curfew will be issued a warning on the first occasion. On subsequent violations, fines can increase to $500.

"The fascinating thing about technology is that once we open the door, it's going to move in ways that we can't always predict and are slow to control, because we are reacting rather than [being] proactive," Scott Decker, a criminal justice professor at Arizona State University in Tempe, told the Christian Science Monitor.

Tuffy v. Bruno

Posted at 11:40 AM on August 8, 2011 by Bob Collins (2 Comments)
Filed under: Crime and Justice

You're walking your small dog, Tuffy, down the street when a dog named Bruno runs out of a house, picks up Tuffy in his jaws and won't let go. While you try to free Tuffy, you fall and break your hip.

Are Tuffy's owners liable for damages?

The Minnesota Court of Appeals ruled a definite "maybe" today when it reinstated a case a district court threw out. Gordon Anderson, Tuffy's owner, sued Dennis Christopherson and his son, who were in charge of Bruno

In throwing the case out, a District Court ruled that Minnesota law shields a dog owner from liability if the dog isn't focused on the person who was injured. In this case, the lower court said, Bruno was only interested in hurting Tuffy, not Tuffy's owner.

The state law reads:

If a dog, without provocation, attacks or injures any person who is acting peaceably in any place where the person may lawfully be, the owner of the dog is liable in damages to the person so attacked or injured to the full amount of the injury sustained.

The Court of Appeals, however, cited a Minnesota Supreme Court case in which a nine-year old boy was killed when a dog riding in a car distracted a driver, who ran off the road, killing him. In that case -- Lewellin v. Huber -- the high court overruled a lower court that ruled the dog's owners were liable for the boy's death. But the Supreme Court declined to address the issue of whether actual physical contact between the dog and an injured person is required for the statute above to apply.

In Tuffy v. Bruno (actually called Anderson v. Christopherson), the Court of Appeals said only a jury can answer the question. "It is possible that a jury could conclude that (Tuffy's owner's) decision to intervene in a dog fight interrupted the chain of causation wuch that his injury was not a direct and immediate result of Bruno's action," the court said.

Here's the full opinion.

The crimes on Danziger Bridge

Posted at 11:29 AM on August 5, 2011 by Bob Collins (2 Comments)
Filed under: Crime and Justice

A federal jury in New Orleans is about to reveal its verdict in the trial of five current or former police officers who opened fire on unarmed people on the Danziger Bridge in New Orleans at the height of the post-Katrina agony in the city.

All five are charged with participating in a cover-up that prosecutors say included a planted gun, falsified reports and fabricated witnesses.

It's tempting to recite the old cliche, "it's not the crime, it's the coverup." But as this late June Frontline investigation showed, it is the crime.

Watch the full episode. See more FRONTLINE.

Update 12:15 p.m. -- (AP) - A federal jury on Friday convicted five
current or former police officers in the deadly shootings on a New
Orleans bridge after Hurricane Katrina.

Bridge memorial defaced

Posted at 12:02 PM on August 3, 2011 by Bob Collins (23 Comments)
Filed under: Crime and Justice

The I-35W bridge disaster memorial in Minneapolis was a lovely tribute to the people who died in the collapse four years ago.

It's a pity it took only a few hours for vandals to deface it.

The Star Tribune reports someone stole two-dozen stainless steel (pricey stuff) letters from the memorial, including the names of those who died in the 2007 disaster.

All the letters and names are now being removed until the memorial can be repaired.

Company policy prevents me from actually writing the last sentence of this post. But there's nothing that says you can't.

Update 3:15 p.m. - The press release from the city of Minneapolis:

Minneapolis police this morning responded to an incident of vandalism at the new Remembrance Garden dedicated to the victims and survivors of the I-35W Bridge collapse. The memorial, which was dedicated on Aug. 1, features a "survivor wall," which includes the names of collapse survivors and a message. Vandals removed 22 letters from the message.

Mayor R.T. Rybak said, "When the bridge collapsed and people were suffering, hundred of thousands of Minnesotans surrounded them with compassion. Now one or more individuals, through a single act of remarkable ignorance, are prolonging that suffering. That can change: I call on those responsible to immediately return the stolen letters. It's beyond description how wrong this act is, but it does not change the thousands of acts of compassion and support that this community has shown."

Police are investigating the vandalism, and in the meantime, the remaining letters are being removed from the wall until new ones can be installed. It is expected that it will be approximately two weeks before the new letters are in place.

Anyone with information on this act of vandalism is asked to call the police department's First Precinct at (612) 673-5701 and ask for the property crimes division.

The message on the survivor wall was crafted by survivors and the loved ones of those who were lost. It reads, "Our lives are not only defined by what happens, but by how we act in the fact of it, not only by what life brings us, but by what we bring to life. Selfless actions and compassion create enduring community out of tragic events."

Whoever I
However I
Viewer Ho
Viewer Oh
Review Ho
Review Oh
Rewove Hi
Heir Wove
Hire Wove
Hive Wore
Hero Wive
Hero View
Hoer Wive
Hoer View
Whore Vie
Hove Wire
Hove Weir
Hew Vireo
Here I Vow
Ere Hi Vow
Veer Hi Ow
Veer Who I
Veer How I
Ever Hi Ow
Ever Who I
Ever How I
Eve Hi Row
He Ire Vow
He Rive Ow
He Vie Row
He Wive Or
He View Or
Eh Ire Vow
Eh Rive Ow
Eh Vie Row
Eh Wive Or
Eh View Or
Hie Re Vow
Hie Rev Ow
Hive Re Ow
Hive We Or
Hover We I
Her Vie Ow
Her Wove I
Hew Vie Or
Hew Rove I
Hew Over I
Rive We Ho
Rive We Oh
Vie Re Who
Vie Re How
Vie We Rho
Wive Re Ho
Wive Re Oh
View Re Ho
View Re Oh
Rove We Hi
Over We Hi
Wove Re Hi
Woe Rev Hi
Owe Rev Hi
He Re I Vow
He Rev I Ow
Eh Re I Vow
Eh Rev I Ow
Rev We Ho I
Rev We Oh I

I'm thinking the perpetrators weren't trying to make some statement here.

Lottery math made easy

Posted at 11:13 AM on August 3, 2011 by Bob Collins (6 Comments)
Filed under: Crime and Justice

If I were a math teacher -- a statistical impossibility, by the way -- I would ask the class today:

"If a lottery game required you to pick all six numbers and the odds of winning are 1 in 9,366,819, how many $2 lottery tickets would you have to buy to make a profit if the jackpot was $2 million or more and the rules say if nobody gets all six numbers, the pool goes to ticketholders who picked four or five numbers?"

While they struggled with the answer, I would read more of the Boston Globe article that details why the lottery in that state is now limiting stores to selling no more than $5,000 worth of the lottery tickets in a single day.

And I'd silently pray that none of the kids asked me how I came up with the answer.

Why do cops hate cameras?

Posted at 2:22 PM on August 1, 2011 by Bob Collins (4 Comments)
Filed under: Crime and Justice, Media

Yet another case of police ordering someone to stop videotaping them has surfaced. This happened Friday on Long Island, according to Poynter.org.

The problem here is the law give the police broad authority to define what constitutes "obstruction," for example. In this case, obstruction appears to be the fact the police couldn't do their job because an open society was making it an impossible task.

The person being threatened with arrest in this case was a member of the media. But there are more cases of this now, of course, because just about everyone has a video camera with them all the time.

"We are reviewing the circumstances surrounding the arrest," a police spokesman told the Long Island Press.

update 4:46 p.m. Poynter updates to include this letter from Mickey Osterreicher, the general counsel for the National Press Photographers Association:

According to news reports Mr. Datz complied with your officer's unreasonable request to move away from the scene while the general public was allowed access. In the video - uploaded to YouTube -- your officer acts in an angry and unprofessional manner and appears to have no concept of the first amendment rights granted to the press under the United States and New York Constitutions. Although Mr. Datz contacted your PIO officer your department was unable to do anything to rectify the situation.

...While in some situations the press may have no greater rights than those of the general public, they certainly have no less right of access on a public street, especially where a crime scene perimeter has not been clearly established.

Court: School board shouldn't have spent money campaigning for referendum passage

Posted at 12:17 PM on August 1, 2011 by Bob Collins (3 Comments)
Filed under: Crime and Justice, Schools

There's a chance you might see fewer of those "newsletters" that school boards send to taxpayers when they're trying to get voter approval for an increase in school spending.

School boards can spend money to inform voters about issues, but it's a fine line between providing information and politicking. Today, the Minnesota Court of Appeals sided with a complaint from the mayor of Tower, Minnesota, that the St. Louis County School Board crossed the line in 2009 when it distributed newsletters about an upcoming bond referendum.

The newsletters contained assertions, such as this:

If residents vote no, their taxes will most likely still increase -- in some cases, by a large amount. That's because if the plan is not approved, the school district would enter into "statutory operating debt" by June 2011, which means the State of Minnesota recognizes that the school district can no longer balance its expenditures and revenues, and would need to dissolve. Children in this school district would then go to neighboring school districts.

The Appeals Court backed a voters group, which asserted the school board intentionally distributed statements in its "educational material" that it knew were false.

The court also ruled that a school board and its members constitute "a committee," and are required to reveal political disbursements under the state's campaign finance laws. It also ruled that using taxpayer money to campaign for passage of a referendum was not authorized.

In making its ruling today -- a full copy of which is here -- the Court of Appeals overturned an administrative law judge (the original ruling is here).

The $78.8 million referendum passed on a 51-to-49 percent vote. It authorized spending the money on two new schools, the remodeling of the Cherry and Babbitt-Embarrass schools and changing the Tower-Soudan School to K-6.

Bradlee Dean's revenge

Posted at 12:44 PM on July 27, 2011 by Bob Collins (12 Comments)
Filed under: Crime and Justice

Bradlee Dean (whose real name is Bradlee Dean Smith), the controversial pastor who runs a "ministry" called "You Can Run But You Cannot Hide International," is suing MSNBC talk host Rachel Maddow and a Twin Cities writer for defamation.

You may recall Dean/Smith from his May appearance at the Minnesota House of Representatives, when he gave a controversial prayer before a session in which a constitutional amendment banning same-sex marriage was to be debated.

Dean is suing Maddow because he says she disparaged his name and appearance in an August 2010 broadcast:

According to a statement posted on his website:

The $50 million suit, announced at a news conference in Manhattan, claims MSNBC and Andy Birkey of the Minnesota Independent, took his comments out of context In the course of his ministry, Dean once made a statement on radio criticizing his fellow Christians for not taking a stronger stand about the gay rights lobby promoting homosexuality in the schools. He made a strong reference to Muslims taking the issue more seriously in the context of Shariah law, but did not condone their practices. It was Bradlee's intent to focus attention on the issue, not to advocate harm to anyone.

Despite the very clear disclaimer by Bradlee Dean on his ministry's website and elsewhere regarding the false accusation that he was calling for the execution of homosexuals, MSNBC's Rachel Maddow and others seized on and accused Dean on her show of supporting the killing of homosexuals, as is the practice in some radical Islamic countries. This seriously has harmed Dean and the ministry, who pride themselves on respect and love for all people.

In a May 2010 column, the Minnesota Independent's Birkey quoted Dean's (Smith's) statements on his radio show:

Muslims are calling for the executions of homosexuals in America," Dean said on YCR's May 15 radio show on AM 1280 the Patriot. "This just shows you they themselves are upholding the laws that are even in the Bible of the Judeo-Christian God, but they seem to be more moral than even the American Christians do, because these people are livid about enforcing their laws. They know homosexuality is an abomination."

"If America won't enforce the laws, God will raise up a foreign enemy to do just that," Dean continued. "That is what you are seeing in America."

"The bottom line is this... they [homosexuals] play the victim when they are, in fact, the predator," Dean said, before going on to make a claim that has no basis in fact: "On average, they molest 117 people before they're found out. How many kids have been destroyed, how many adults have been destroyed because of crimes against nature?"

Dean (Smith) has been no shrinking violet on the issue. He posted a YouTube video responding to Rachel Maddow's August 2010 show, which is now the target of his suit.

The pastor says the targets of his lawsuit are using his comments to hurt the presidential aspirations of Michele Bachmann, the complaint said:

Norway searches for a punishment to fit the crime

Posted at 11:23 AM on July 25, 2011 by Bob Collins (1 Comments)
Filed under: Crime and Justice

Anders Behring Breivik , the Norwegian terrorist, made his first court appearance in Oslo today, indicating he expects to spend the rest of his life in prison.

Theoretically, the "rest of his life" can be defined as 16 years.

That was the most shocking -- to me -- nugget that came out of Scott Simon's interview on Saturday with Halvard Sandberg, a reporter for the Norwegian broadcasting corporation.

"This person, he will be convicted," Sandberg said. "with the harshest penalty we can give him, which is 21 years. That means he is out after 16 years. He might be out after 14 years. He might be a free man. And he killed so many. We don't have laws that can lay out a penalty for what he has done."

Sandberg says that's the biggest topic of conversation in Norway right now.

The Associated Press reports that it might be possible for Norway to continue to incarcerate the man behind Friday's attacks by declaring him a threat to society.

Norway's terrorist is a Norwegian

Posted at 11:26 PM on July 22, 2011 by Bob Collins
Filed under: Crime and Justice

There's a suspect in the horrible shootings on Norway's Utoeya island in which at least 80 people are said to have been killed. He's not an Islamic militant (the stereotype of the terrorist as portrayed by the early speculation); he's a Norwegian Christian.

Anders Behring Breivik, 32, reportedly acted alone in the shooting and the earlier bombing in Oslo.

He's got a Twitter account with one tweet he made last week:

For some reason, 518 people are following Breivik on Twitter.

Mashable says the man also had a Facebook page, but it's been removed:

In Breivik's Facebook account, now removed, the suspect identifies himself as a Christian conservative. However, that was far from his only interest. Breivik also listed himself as a fan of World of Warcraft, Modern Warfare 2, bodybuilding and stock analysis. The account, which appeared to have only been started last week, was mostly filled with music videos. Breivik, who listed himself as single, said he had completed "3,000 hours of study in micro and macro finance, religion."

Reuters says the man's arrest may signal new fears that right-wing extremists will be a growing threat in Europe:

"If true this would be pretty significant - such a far-right attack in Europe, and certainly Scandinavia, would be unprecedented," said Hagai Segal, a security specialist at New York University in London.

"It would be the European/Scandinavian equivalent of Oklahoma City - an attack by a individual (with extremist anti-government views, linked to certain groups) aimed at the government by attacking its buildings/institutions."

Prior to the 9/11 attacks nearly 10 years ago, the threat of domestic extremist groups was the number-one security concern in the United States, too. Terrorism can be its most terrifying when the perpetrator looks like you.

Netflix price hike an attempt to move further away from DVDs

Posted at 9:00 AM on July 13, 2011 by Jon Gordon (23 Comments)
Filed under: Crime and Justice

Those tap-tap-tap noises you hear are DVD coffin nails. Netflix is trying like mad to get out of the DVD business.

Peter Kafka of All Things D nails it:

Even though the majority of Netflix's 24 million subscribers are still paying it to get DVDs by mail, Reed Hastings and company see themselves as Internet guys, not putting-discs-in-envelopes guys.

Now they're making it even more clear, by raising the prices in a way that makes it much more expensive to get both Web streaming and DVDs from the service.

(deletia)

Netflix explains the rationale for the price hike in a blog post, but the short version is that it would like its DVD customers to move to the Web, or pay up. Doing so helps it cut down on discs costs and/or generate more money to help buy digital titles, which are only going to get more expensive.

Are you willing to ditch DVDs? Have you moved away from them already?

Computer security war "can't be won"

Posted at 11:00 AM on July 13, 2011 by Jon Gordon (2 Comments)
Filed under: Crime and Justice, Tech, War

A Blaine man who hijacked his neighbor's Wi-fi and then made threats to Joe Biden and distributed child pornography using his victim's identity has been sentenced to 18 years in prison. It's just one more nasty incident -- albeit a very small one -- in the long war between forces of good and evil online. And it's a war that cannot be won, according to a prominent security expert.

Anti-virus pioneer Evgeny Kaspersky tells Der Spiegel about his fear of a worse fights ahead. Excerpt:

SPIEGEL: You and your company are the winners of a new era in warfare.

Kaspersky: No, because this war can't be won; it only has perpetrators and victims. Out there, all we can do is prevent everything from spinning out of control. Only two things could solve this for good, and both of them are undesirable: to ban computers -- or people.

SPIEGEL: You once described yourself as an extremely paranoid person. What is the worst possible disaster that a computer viruses could cause?

Kaspersky: In the Soviet days, we used to joke that an optimist learns English because he is hoping that the country will open up, that a pessimist learns Chinese because he's afraid that the Chinese will conquer us, and that the realist learns to use a Kalashnikov. These days, the optimist learns Chinese, the pessimist learns Arabic...

SPIEGEL: ...and the realist?

Kaspersky: ...keeps practicing with his Kalashnikov. Seriously. Even the Americans are now openly saying that they would respond to a large-scale, destructive Internet attack with a classic military strike. But what will they do if the cyber attack is launched against the United States from within their own country? Everything depends on computers these days: the energy supply, airplanes, trains. I'm worried that the Net will soon become a war zone, a platform for professional attacks on critical infrastructure.

SPIEGEL: When will that happen?

Kaspersky: Yesterday. Such attacks have already occurred.

What's your computer security story? What's the worst thing that's happened to you online?

Court of Appeals: Facebook posts were grounds for U of M to discipline student

Posted at 1:37 PM on July 11, 2011 by Bob Collins (1 Comments)
Filed under: Crime and Justice

The Minnesota Court of Appeals today upheld the University of Minnesota's right to discipline a student in a mortuary sciences class who made jokes about a cadaver and made threats on her Facebook page.

In a series of posts in 2009, Amanda Tatro first posted a reference to a cadaver:

Amanda Beth Tatro Gets to play, I mean dissect, Bernie[2] today. Lets see if I can have a lab void of reprimanding and having my scalpel taken away. Perhaps if I just hide it in my sleeve . . . .

In a subsequent Facebook post, Tatro appears to have threatened someone...

Amanda Beth Tatro: Who knew embalming lab was so cathartic! I still want to stab a certain someone in the throat with a trocar though.[4] Hmm..perhaps I will spend the evening updating my "Death List #5" and making friends with the crematory guy. I do know the code . . . .

After the posts, the University banned her from campus for a time, then flunked her out of the course.

Tatro claimed the action violated her right to free speech, but the Court of Appeals said schools may limit or discipline student expression if school officials 'reasonably conclude that it will materially and substantially disrupt the work and discipline of the school.'"

Her Facebook posts did just that, the court said:

Beyond the university‟s concern for the safety of its students and faculty, Tatro‟s posts presented substantial concerns about the integrity of the anatomy-bequest program. Tatro‟s posts eventually reached families of anatomy-bequest-program donors and funeral directors, causing them to contact the university, expressing dismay and concern about Tatro‟s conduct and to question the professionalism of the program in general--a program that relies heavily on the faith and confidence of donors and their families to provide necessary laboratory experiences for medical and mortuary-science students. Indeed, the rules requiring respect and professionalism in the sensitive area of mortuary science appear designed to ensure ongoing trust in this relationship, and Tatro agreed to be bound by these rules as a condition of her access to a human donor. Because Tatro‟s Facebook posts materially and substantially disrupted the work and discipline of the university, we conclude that the university did not violate Tatro‟s First Amendment rights by responding with appropriate disciplinary sanctions.

Tatro also argued that the U of M didn't have authority to discipline her because the activity to which it objected took place off campus. "Whether or not Tatro intended her posts to be satire or mere venting does not diminish the university's substantial interest in protecting the safety of its students and faculty and addressing potentially threatening conduct," the Court of Appeals said. It added that in these times, schools need to watch for and respond to student behavior that indicates a potential for violence.

Here's the full opinion from the court.

Appeals Court: Death of fetus is death of a human being

Posted at 1:07 PM on July 5, 2011 by Bob Collins (2 Comments)
Filed under: Crime and Justice

The Minnesota Court of Appeals today upheld the 40-year prison term of a man who paid another person a few hundred dollars to punch a pregnant woman in the stomach because he didn't want to pay child support.

Dameon Gaston said his second-degree murder conviction was invalid because he intended to kill a fetus, not a human being. The six-month-old fetus was delivered by C-section after the mother was punched in the stomach in 2007, but she died less than two weeks later.

Under Minnesota law, a person is guilty of intentional second-degree murder if he or she 'causes the death of a human being with intent to effect the death of that person or another.'"

But in 1986, the Minnesota Legislature enacted homicide statutes that criminalized the unlawful killing of an unborn child after the state Supreme Court ruled Minnesota's vehicle homicide laws do not consider a fetus to be a human being.

Gaston argued that he can't be held responsible for killing the child once she was born alive because he "did not intend to kill a human being; rather he intended to kill an unborn child," which would be attempted murder.

"This was no attempt," the Court ruled today. Gaston's actions "resulted in the death of a human being."

It said Gaston's "intent was to cause injuries to (the fetus) that would result in her death in utero, but the injuries instead resulted in (the baby's) death only after she was born alive. This variation is too slight for the law to shrink from imposing criminal liability for the intentional killing of a human being," the Court said.

(Here is the full opinion)

Are violent video games the same as fairy tales?

Posted at 11:39 AM on June 27, 2011 by Bob Collins (5 Comments)
Filed under: Crime and Justice

Today's Supreme Court decision throwing out California's ban on selling "violent" video games to people under 18 contains an unintended invitation to News Cut readers. What children's book contains violence akin to the video games in question?

Justice Antonin Scalia, writing the opinion delivered today, said video games are no different from books, plays, and movies and, thus, are deserving of First Amendment protection. "Our cases have been clear that the obscenity exception to the FirstAmendment does not cover whatever a legislature finds shocking, but only depictions of 'sexual conduct.'" Scalia wrote in explaining why laws against obscenity cannot be used in this case.

Besides, Scalia argue, kids' books are violent, too, and we're not banning them...

Certainly the books we give children to read--orread to them when they are younger--contain no shortage of gore. Grimm's Fairy Tales, for example, are grim indeed. As her just deserts for trying to poison Snow White, the wicked queen is made to dance in red hot slippers "till she fell dead on the floor, a sad example of envy and jealousy." The Complete Brothers Grimm Fairy Tales 198 (2006 ed.). Cinderella's evil stepsisters have their eyes pecked out by doves. Id., at 95. And Hansel and Gretel (children!) kill their captor by baking her in an oven. Id., at 54.

High-school reading lists are full of similar fare. Homer's Odysseus blinds Polyphemus the Cyclops bygrinding out his eye with a heated stake. The Odyssey ofHomer, Book IX, p. 125 (S. Butcher & A. Lang transls.1909) ("Even so did we seize the fiery-pointed brand and whirled it round in his eye, and the blood flowed about the heated bar. And the breath of the flame singed his eyelids and brows all about, as the ball of the eye burnt away, and the roots thereof crackled in the flame"). In the Inferno, Dante and Virgil watch corrupt politicians struggle to stay submerged beneath a lake of boiling pitch, lest they beskewered by devils above the surface. Canto XXI, pp.187-189 (A. Mandelbaum transl. Bantam Classic ed.1982). And Golding's Lord of the Flies recounts how a schoolboy called Piggy is savagely murdered by other children while marooned on an island. W. Golding, Lord of the Flies 208-209 (1997 ed.).

Scalia's interpretation of the application of the First Amendment led to an unusual dissent from Justice Clarence Thomas, who is usually on the same side Scalia's on.

Thomas said the freedom of speech does not include the freedom to speak to children without their parents' permission...

Adults carefully controlled what they published forchildren. Stories written for children were dedicated to moral instruction and were relatively austere, lackingdetails that might titillate children's minds.

. John Newbery, the publisher often credited with creating the genre of children's literature,removed traditional folk characters, like Tom Thumb, from their original stories and placed them in new morality tales in which good children were rewarded and disobedient children punished.

Thomas noted the doomed California law did not prevent a child from getting violent video games with the assistance of his/her parents.

Here's the entire opinion from the Supreme Court.

Update 3:51 p.m. - Here's a really great review of the decision from the always-informative ScotusBlog.

Police may collect urine without warrant, court says

Posted at 11:04 AM on June 27, 2011 by Bob Collins (4 Comments)
Filed under: Crime and Justice

Here's a factoid you can use at your next dinner party, courtesy of the Minnesota Court of Appeals:

"The alcohol concentration of urine in the bladder can decrease from .081 to .079 in 15 minutes."

This would be an important fact if you were, say, stopped for drunk driving and your blood alcohol level was barely over the standard by which Minnesota defines drunk driving.

In a ruling today, the Minnesota Court of Appeals provided quite an analysis of the biological method by which the body disposes of its alcohol, ruling that police can require a urine sample from suspected drunk drivers without needing a warrant to do so.

The Court ruled in the case of Kim Ellingson, who was charged with drunk driving after a breathalyzer showed her blood alcohol level was .09. In Minnesota, .08 is legally drunk. A subsequent urinalysis showed she was, indeed, drunk.

She lost her license but sued because the collection of her urine was an unreasonable search and seizure. The Court disagreed, saying, "... the rapid change in alcohol concentration through the body's natural processes... justify the warrantless collection of a urine sample."

Big-screen villains and real-life crooks

Posted at 11:41 AM on June 24, 2011 by Eric Ringham (1 Comments)
Filed under: Crime and Justice

There's a kind of disconnect every time we get to compare a big-screen villain to a real-life crook. Reading this morning's news accounts about the capture of James "Whitey" Bulger, I was struck by this tidbit: that Bulger, 81, had served as the inspiration for Jack Nicholson's character Frank Costello in "The Departed."

Even in a Jack Nicholson film festival, the Costello character would stand out as truly scary. And so would Bulger, with a string of 21 murders to his alleged credit. The Boston mob boss had retired to Santa Monica and was sharing a third-floor apartment with a small arsenal of guns, a fortune in cash and a woman with expensive tastes in grooming. (In a plot twist worthy of Hollywood, it was the beauty that did him in. The FBI reportedly caught him by focusing on his companion's use of beauty parlors and teeth-whitening services.)

Yet for all his bloody history, Bulger doesn't look frightening - certainly not as scary as Nicholson. Give him a longer beard and he might make a good Santa. Whereas Nicholson ... well, he looks like Nicholson. You wouldn't cast him as Santa, but he does make a great crime boss:

When grandparents, parents fight

Posted at 11:46 AM on June 20, 2011 by Bob Collins
Filed under: Crime and Justice

The Minnesota Court of Appeals settled -- at least for now -- a case that's the very definition of a child caught in the middle.

The Court of Appeals today overturned a visitation schedule for a grandmother whose daughter was murdered. In so doing, the court reaffirmed the right of parents to decide the extent to which a child may visit grandparents. It also reaffirmed that in matters of child custody, parents and grandparents are not the same.

The case involves the 2009 murder of Brittany Givens-Copeland, who was killed in Burnsville by her ex-boyfriend. Her son, Christian, was just four months old.

Givens-Copeland's mother, noted Twin Cities philanthropist Roxanne Givens filed for custody of the child without notifying the child's father, Anthony Michael Darst. A district court granted Givens' request until Darst, having proved paternity, sued -- and eventually won -- custody.

For nine months, the Appeals Court said, Given allowed the father "only tightly restricted opportunities to see the child, primarily under Givens' supervision in her home. Once the district court granted Darst custody of his son, he did not allow Givens' any visitation.

Givens then petitioned for grandparent visitation under Minnesota law. While Darst agreed to allowing one weekend of visitation from Saturday morning to Sunday evening once a month, the district court awarded visition every Tuesday afternoon and every Saturday for the first 90 days, then twice a week with a Saturday sleep-over for the next 90 days, and finally every Tuesday and Thursday afternoon and every other weekend.

That, the Court of Appeals ruled today, was too much. It agreed that the order "essentially establishes a parenting-time schedule rather than grandparent visitation and that it interferes with his relationship with the son. It said under the arrangement, the father couldn't take any trips with his son longer than four days.

"This sort of hopscotch calendar may sometimes be the best solution to accommodate equal and competing parental rights between unmarried or divorced parents who have demonstrated a capacity to engage civilly," the Court said. "But it cannot be imposed to satisfy the limited rights of grandparents without interfering with the parent-child relationship."

In sending the case back to the district court, however, the Court of Appeals did not give it much choice how it should settle the matter. "We predict on this record that remanding for additional extensive argument and a new hearing and further analysis would do little more than to prolong and intensify this now two-and-a-half-year acrimonious contest over time with (the child)," the Court said, in telling the district court to adopt the father's suggestion of one weekend a month visitation and holidays as negotiated.

It also scolded the warring factions.

"The limits of the law and the specific terms of judicially ordered visitation are no substitute for flexibility and cooperative arrangements in the child's best interests," it said.

(Read the entire opinion)

Drunk man on a scooter can't be charged with drunk driving, court says

Posted at 10:50 AM on June 13, 2011 by Bob Collins (5 Comments)
Filed under: Crime and Justice

If you are physically disabled and rely on a motorized scooter to get around, can you be charged with drunk driving if you become intoxicated?

"No," the Minnesota Court of Appeals ruled today, overturning the conviction of James Brown Jr., who was charged while driving his scooter on the sidewalks of Grand Rapids in July 2009.
He drove his scooter , which has a top speed of about 6 mph, to a car dealership, which called the police.

But the court ruled that it's not a motor vehicle. A driver's license isn't required to operate it, you can't register one in Minnesota, and the law bans it from roadways under most conditions.

"Because Brown's scooter is not a 'vehicle' under the relevant statutory definitions, it is not a 'motor vehicle.' And Brown is not a 'driver' because when he uses his scooter, he is not driving or in physical control of a vehicle,'" the court said. (Full opinion here)

The flash mobs of Chicago

Posted at 3:04 PM on June 7, 2011 by Bob Collins (2 Comments)
Filed under: Crime and Justice

There are flash mobs, and there are flash mobs.

Social networking was behind the "good" (if overdone) flash mob in which people are encouraged to meet at a specific landmark and do the flash mob thing.

Like this in Chicago, for instance...

But there's a new flash mob in town -- a bad flash mob. Chicago has recently been hit with gangs of teenagers using text messaging and social networking sites to coordinate attacks on retailers and individuals, according to Crain's Business.

Saturday evening's flash-organized assaults in Streeterville, in which a group of young men robbed and beat five people along the lakefront and near Northwestern University's downtown campus, have brought renewed attention to the groups of roving teenagers who, abetted by social media and text messaging, wreak havoc in the city's upscale, tourist-heavy areas. Two of the victims were doctors attending a medical conference at McCormick Place.

Mayor Rahm Emanuel says Chicago's reputation as "a safe place to live in work" is being undermined by flash mobs. Mobs of people have been pushing people off their bikes, the Chicago Sun Times reports, and people have been warned not to ride bikes near the waterfront anymore.

Chicago police are reportedly spending more time on social networking sites to try to figure out when and where the flash mobs are going to attack.

Tree-trimmer releases post-tornado video

Posted at 1:09 PM on June 6, 2011 by Bob Collins (5 Comments)
Filed under: Crime and Justice

Mike Haege, the tree trimmer who was kicked out of Minneapolis in the immediate aftermath of the north Minneapolis tornado, has released a cellphone video that he says backs up his story. Minneapolis officials have not responded to questions about exactly why a Hastings tree trimmer who wasn't charging anybody for his help, was escorted from the city because he didn't have a license as a professional tree trimmer in the city.

The video doesn't reveal a lot, other than it took four cops to kick him out.

The video is posted by the Hastings Star Gazette.

Should streaming copyrighted material be a felony?

Posted at 2:05 PM on June 1, 2011 by Bob Collins (1 Comments)
Filed under: Crime and Justice

Should you go to jail for embedding a YouTube video that infringes on someone's copyright?

TechDirt takes Sen. Amy Klobuchar and two other senators to task for proposing changes in the copyright law that make streaming copyright infringing material a felony.

This is the really troubling part. Everyone keeps insisting that this is targeted towards "streaming" websites, but is streaming a "performance"? If so, how does embedding play into this? Is the site that hosts the content guilty of performing? What about the site that merely linked to and/or embedded the video (linking and embedding are technically effectively the same thing). Without clear definitions, we run into problems pretty quickly.

And it gets worse. Because rather than just (pointlessly) adding "performance" to the list, the bill tries to also define what constitutes a potential felony crime in these circumstances.

So yeah. If you embed a YouTube video that turns out to be infringing, and more than 10 people view it because of your link... you could be facing five years in jail. This is, of course, ridiculous, and suggests (yet again) politicians who are regulating a technology they simply do not understand. Should it really be a criminal act to embed a YouTube video, even if you don't know it was infringing...? This could create a massive chilling effect to the very useful service YouTube provides in letting people embed videos.

In a news release earlier this year, Sen. Klobuchar said the target of her bill is large, offshore distributors of pirated content:

Many of these Websites are operated offshore by international organized crime operations and use the profits to fund other illegal activities. Klobuchar pointed out that the current laws haven't kept up with technology, citing that it is currently a felony to sell counterfeit DVDs that together value over $2,500, but streaming those same movies over the Internet is only a misdemeanor.

A coalition of the Motion Picture Association of America, the Independent Film and Television Alliance and the National Association of Theater Owners endorsed Klobuchar's bill.

Appeals Court: Prosecutors made plea deal then argued against it

Posted at 2:32 PM on May 23, 2011 by Bob Collins (3 Comments)
Filed under: Crime and Justice

How much discretion does a Minnesota judge have to ignore minimum mandatory sentence rules? None, the Minnesota Court of Appeals ruled today.

The court today overturned a district court judge who sentenced Sarah DeAnn Rausch to 10 years probation, 15 days in the workhouse, and 45 in alternative service after she pleaded guilty to burglary charges stemming from a fight with her boyfriend.

But prosecutors said Rausch should have been sentenced to at least six months in the workhouse or prison as the Legislature mandates. The Appeals Court agreed, noting "courts have no inherent authority to impose terms or conditions of sentence for criminal acts and... the power to prescribe punishment for such acts rests with the legislature."

Her attorneys had argued that judges have the discretion to ignore mandatory sentencing guidelines, especially in cases where the charges are the first offense.

But there's a rub in this case. The same prosecutors who appealed that Rausch should have been sentenced to a minimum sentence, had also told her when it worked out a plea agreement that she could argue for a lighter one.

In a concurring opinion, Judge Jim Randall said this case is not what the Legislature had in mind when it created a minimum sentence for burglary. While he supported the Appeals Court ruling, he criticized prosecutors for bringing serious charges against a woman who "keyed" his car.

"The district court gave a thoughtful and fair sentence properly reflecting the facts of the crime," he said. "That carefully fashioned sentence reflected all that this case was worth."

Randall heavily criticized prosecutors for making a plea offer it knew it couldn't keep and urged Rausch to withdraw her guilty verdict plea when it goes back to the district court for resentencing.

The quest for YouTube fame

Posted at 3:03 PM on May 18, 2011 by Bob Collins (2 Comments)
Filed under: Crime and Justice

In this week in which MPR is presenting a series of reports intended to look intelligently at the issue of bullying in schools, there is a story which shows what school officials and parents are up against: a life form that is inherently not intelligent.

In Superior, Wisconsin , the Duluth News Tribune reports today, a 16 year old student tried to get into a fight with another 16-year old in the boys locker room. Why? Because they wanted a videotape to post online.

According to a Superior police report, the incident occurred during fifth hour on May 10. One of the 16-year-old students who were cited tried to get into a fight with another teen before class by challenging and threatening him. The other 16-year-old boy who was cited was videotaping with an iPhone as he egged them on, saying "Do it ... hit him."

After class, the two 16-year-olds did the same thing, with the first teen now pushing the boy he wanted to fight in addition to challenging him verbally. When he kneed the other male in the side, the student fought back. It was all videotaped with the iPhone held by the other 16-year-old.

Where would they get such a stupid idea?

Here:

Here:

and a thousand other places.

Rape victims on trial

Posted at 12:46 PM on May 18, 2011 by Bob Collins (14 Comments)
Filed under: Crime and Justice, Media

The alleged rape of a woman in New York by Dominique Strauss-Kahn, the head of the International Monetary Fund, is giving news organizations fits by rekindling an old debate that once seemed settled: Should alleged rape victims be named? And how much should the news audience know about her?

The New York Times danced close to the name by identifying her race, her neighborhood and, apparently, her character.

That earned this rebuke from The Atlantic's Jeffrey Goldberg:

I don't understand reporting like this. What is the point? Does it matter that she is friendly? Does it matter that she is a good person? Does it matter that she has never been a problem? Of course not. Rape is rape. The character of the victim is irrelevant. There's one caveat to this idea: If reporters had discovered in the woman's past a pattern of making false accusations in criminal matters, well, then there's a plausible argument that information about her character should be reported. Otherwise, her mood, relative-friendliness or unfriendliness, shopping habits, dietary needs -- all completely immaterial.

One more thing: Reporters should think twice about visiting the neighborhood of an alleged rape victim in order to ask questions about her life and character. The unintended consequence of such a visit is to publicize, in the place where she lives, her plight, and raise possibly-destructive questions about her situation. Newspapers withhold the names of alleged rape victims for a reason: to protect their privacy. But when reporters ask family, friends and neighbors superfluous questions about the alleged rape victim, they have outed her in the place that matters most.

French media has named the alleged victim.

On CBS this morning, the woman's attorney, Jeffrey Shapiro, said the woman will tell her story when the time is right:

But it's clear that this story is going to be much more than a single criminal case; it's going to be all about how all alleged rape victims are treated in the court of public opinion.

On that score, commentator Ben Stein went off the rails yesterday in his defense of the IMF official, arguing that he couldn't have raped anyone because that's not what economists do.

In life, events tend to follow patterns. People who commit crimes tend to be criminals, for example. Can anyone tell me any economists who have been convicted of violent sex crimes? Can anyone tell me of any heads of nonprofit international economic entities who have ever been charged and convicted of violent sexual crimes? Is it likely that just by chance this hotel maid found the only one in this category? Maybe Mr. Strauss-Kahn is guilty but if so, he is one of a kind, and criminals are not usually one of a kind.

For a glimpse at the strife the case is causing in journalism circles, check out a live chat hosted by the Poynter Institute.

Court: Minnesota man should've been told about deportation possibility in plea deal

Posted at 12:02 PM on May 16, 2011 by Bob Collins
Filed under: Crime and Justice

Had Rene Reyes Campos known that his agreeing to a plea bargain would result in his deportation, he might have fought the charges.

In July 2009, Campos pleaded guilty to a reduced charge of simple robbery and was given a stayed sentenced of three years. Campos, who had been a lawful permanent resident of the U.S. since 2002, never told his attorney about his immigration status and his attorney never asked.

After the U.S. Supreme Court ruled in 2010 that people have to be advised when a plea arrangement could mean deportation, Campos moved to withdraw his guilty plea. The Supreme Court ruled 7 to 2 that the Sixth Amendment guarantee of an effective counsel extends to advice about the risk of having to leave the country. But a district court in Minnesota ruled that the Supreme Court order does not apply to people who'd already pleaded guilty.

Today, Minnesota's Court of Appeals said that decision was wrong. "A defense attorney's duty to properly advise his client before a guilty plea is hardly new," the court said, concluding that Campos' counsel was ineffective.

Full opinion here.

The 'S' word

Posted at 12:06 PM on May 9, 2011 by Bob Collins (9 Comments)
Filed under: Crime and Justice

"Gay culture reclaimed the word 'queer'," a protester has told the BBC. "It is about picking these words up and using them with pride."

What's the word she's trying to reclaim? "Slut."

The movement started at an anti-sexual-assault forum on a school campus in Toronto when a public safety officer reportedly advised women in the audience "not to dress like 'sluts.'"

This, of course, is the 2011 version of a decades-old rationale for sexual violence against women: "Just look what she was wearing."

"The problem with the word slut is that it has cut women off because they have an energy around their sexual desires and we are still so prejudiced about this. But if we reclaim the word, it simply becomes an issue of 'so what?'," a psychoanalyst told the BBC.

A group has formed to organize "SlutWalks" in Canada amd the U.S. Dozens of U.S. cities will host the walks. None is planned for Minnesota, according to the group's Web site.

Court: 'Disorderly conduct' protected by First Amendment

Posted at 12:13 PM on May 3, 2011 by Bob Collins (4 Comments)
Filed under: Crime and Justice

Free speech trumps disorderly conduct. That's the bottom line of a case from the Minnesota Court of Appeals today which has ruled that two animal rights protesters had every right to chant loudly and even threaten violence against the mother of a fur store owner. The Appeals Court overturned the jury convictions of two men.

In its order today, the court might have also set a record for the most use of asterisks in a decision. In a 1978 case, the court said, "the supreme court held that a retreating 14-year old girl's statement to police, f**k you pigs," did not constitute fighting words because she directed it at two police officers sitting in a squad car located 15 to 30 feet away. The court noted that there was no reasonable likelihood that the statement would 'tend to incite an immediate breach of the peace of to provoke violent reaction by an ordinary reasonable person.'"

Isaac Peter, 19, and Michael Lawson, 21, were arrested on disorderly conduct charges in March 2010, after a business owner told police the two yelled that "they knew where he lived; they knew where his elderly mother lived; and they knew his vehicle license plate number," according to today's court ruling.

The court said someone's "conduct" can't be separated from the "political speech," which is protected by the First Amendment, also citing a case of a man who rode a horse through a gay pride festival in Minneapolis while shouting anti-gay epithets; and a group of people dressed as zombies protesting consumerism in the city (they were cited because they scared a girl who thought they were really zombies).

Neither of those cases constituted "fighting words," which is the only condition under which someone's speech isn't protected by the First Amendment, the court indicated.

The Appeals Court also said that Minneapolis' disorderly conduct ordinance "is in danger of being struck down unless it is restricted to prohibiting only fighting words and conduct that is not inextricably linked to protected speech."

Here's the full opinion.

A first glimpse of Rep. Giffords

Posted at 10:48 AM on April 27, 2011 by Bob Collins
Filed under: Crime and Justice

Not since Brett Favre have we seen so much media attention paid to who is getting on or off a plane.

Today, however, the story is much more legitimate. It's the first time we've seen Rep. Gabrielle Giffords since she was shot in the head in Tucson. Up to now, we've had to rely on second-hand reports of how her recovery is going.

Rep. Giffords was boarding the plane for the flight to Florida to watch her husband take off in the final flight of the shuttle Endeavor.

The accident that wasn't

Posted at 3:01 PM on April 25, 2011 by Bob Collins
Filed under: Crime and Justice

We know a little more about the accident that killed a pedestrian when a car jumped the sidewalk in Dinkytown a little more than a week ago.

The criminal complaint from the Hennepin County Attorney tells us that (a) it wasn't an accident and (b) the person who allegedly intentionally struck the group isn't sorry he did it.

Timothy Bakdash, 29, is charged with one count of second-degree murder and two felony counts of assault in the April 15th accident that killed Benjamin Van Handel, 23 and left a woman unable to walk.

Bakdash allegedly drove his car down the wrong way on 5th Street, intending to kill a group of people with whom he'd had an argument at the Library Bar, the complaint says. It, however, references only someone -- identified as "B.B" -- who fingered Bakdash as the driver.

Says the complaint:

"Defendant then got into his vehicle, a Mitsubishi Galant, and traveled down the wrong way on a one-way street where he drove onto the sidewalk and struck the group of pedestrians. Defendant admitted he intended to hit and kill three of the people there, but stated he struck a fourth person whom he did not intentionally hit. He stated he had no remorse for hitting the others."

What we don't know, however, is whether the alleged killer is currently without remorse, or whether that was a statement made the same night. The police interviewed "B.B." last Thursday.

Who is "B.B.?" Apparently he -- or maybe, she -- is the person who bought the weapon -- the car -- for $1,500. He/she said that Bakdash's mother told him "he had to get ride of that car that night." It was mom's car.

From the sound of the complaint, "B.B" knew what was going on here, too, because, the complaint says, he started working on the repairs the same night. That there have been no charges filed against "B.B." would suggest the possibility of a deal in exchange for testimony.

MPR's Brandt Williams is covering the story.

Court: No unemployment for excessively-absent employee

Posted at 12:17 PM on April 20, 2011 by Bob Collins (2 Comments)
Filed under: Crime and Justice

It's not a very good idea to test your company's absentee policy by being absent. That's the upshot of a decision from the Minnesota Supreme Court today.

The Court ruled that you can be fired for excessive absenteeism, even if your company has a progressive discipline policy on the subject. It ruled in the case of Ronald Stagg, who was fired by a group home for troubled youth.

The company for which Stagg worked --Vintage Place -- has a policy providing for an oral warning on the first unexcused absence, a written warning for the second one, a three-day suspension for the third, a 10-day suspension for the fourth, and firing for the fifth.

Does that give you four unexcused absences before being fired? No, the court said.

Here's how it described Stagg's firing:

Stagg began having tardiness and attendance problems in November 2008. On November 15, 2008, Stagg missed mandatory training and, according to Vintage Place, gave no advance notice. On November 26, Stagg, without notifying his supervisor, did not show up for work. As a result, he received an oral warning. On November 27, Stagg arrived for his shift two hours late without advance notice and was placed on probation. On December 1, Stagg called in sick after his shift began. It does not appear from the record before us that Stagg was disciplined for the December 1 absence. On December 3, Stagg arrived for work 45 minutes late without advance notice and was given a two-day suspension. On January 28, 2009, Stagg called in after his shift began to say that he had overslept. The following day, Stagg was fired.

Stagg claimed that because he had not received a 10-day suspension -- the last step short of termination under his company's policy -- he did not understand that his job was at risk.

An unemployment law judge denied his unemployment claim, but the Court of Appeals overturned the decision.

Today, the Supreme Court said "an employee's expectation that the employer will follow its disciplinary procedures has no bearing on whether the employee's conduct violated the standards the employer has a reasonable right to expect or whether any such violation is serious."

The Court left open, however, the possibility of a future claim that an employer's handbook constitutes a contract between the employer and employee.

Read the full decision here.

Appeals Court: Cirrus not responsible for plane crash that killed two

Posted at 11:27 AM on April 19, 2011 by Bob Collins (21 Comments)
Filed under: Aviation, Crime and Justice

The Minnesota Court of Appeals has overturned a lower court ruling that held Duluth-based Cirrus Design responsible for teaching people who buy its airplanes how to fly them safely (I wrote about the earlier decision here).

The ruling comes in the case of Gary Prokop and James Kosak, who died in January 2003 while on a flight from Grand Rapids to St. Cloud to attend their sons' hockey tournament. The estate of the passenger -- Kosak -- sued Cirrus and Prokop's estate, claiming Cirrus omitted training on how to escape instrument meteorological conditions (primarily, darkness) and snow). Prokop was not rated to fly in such conditions.

At issue, is whether the pilot knew how to turn on an autopilot, designed to help pilots who get into trouble and lose direction.

A jury awarded Kosak's next of kin $7.4 million and Prokop's next of kin $12 million.

But the Appeals Court ruled today that "although proficiency training undoubtedly promoted the safe use of the SR22 (model of airplane), we find no support in the law for (the) proposition that Cirrus's duty to warn included an obligation to train Prokop to proficiently pilot the SR22."

The court noted that a handbook given to aircraft purchasers provided the instructions on how to activate and operate the autopilot, and it said Cirrus fulfilled its legal responsibility to warn the owner of the risks involved in piloting a plane.

The Court also ruled that Cirrus cannot be held liable for the effectiveness of its training program because of Minnesota laws barring educational malpractice complaints.

But Appeals Court Justice Roger Klaphake disagreed. "While transition training may not be required as a matter of law, once Cirrus made it a part of the purchase agreement, Cirrus voluntarily assumed a duty to provide the promised training," he wrote in his dissent.

Here is the full opinion from the court.

After the district court's original ruling, the Legal Broadcasting Network interviewed Dan OFallon and Phil Sieff, counsel for the family of James Kosak. O'Fallon and Sieff of counsel with Robins, Kaplan, Miller & Ciresi in Minneapolis.

$16.4 MILLION JURY AWARD OVER 2003 PLANE CRASH from Sequence Media on Vimeo.

Update 7/18/12 The Supreme Court has upheld the Appeals Court decision. The Associated Press says:

The Minnesota Supreme Court ruled Wednesday that Duluth-based Cirrus Design Corp. had no legal duty to provide a flight lesson to a Grand Rapids man whose plane crashed in 2003, killing him and his passenger, :

The families of pilot Gary Prokop and passenger James Kosak will not receive the more than $16 million in damages a jury awarded them three years ago. Dissenting justices and attorneys for the plaintiffs feared the decision could have negative consequences for consumers. :

"To say we're disappointed would be an understatement," said Ed Matonich, an attorney for Prokop's family. "In my opinion, this ruling does not bode well for any citizen of Minnesota who is wrongfully injured in the future." :

Prokop, 47, and Kosak, 51, left Hill City on Jan. 18, 2003, for St. Cloud to watch their sons play in a hockey tournament. The Cirrus SR22 crashed shortly after takeoff. The families alleged Cirrus and the University of North Dakota Aerospace Foundation didn't provide adequate pilot training. :

Prokop, a licensed pilot since 2001, had bought the plane roughly a month before the crash. At the time, he was given an operating handbook including emergency instructions. Cirrus also included two days of training in the purchase price, but Prokop did not receive in-flight training that would have included a maneuver to help him recover from an emergency in inclement weather.:

Itasca County District Court found Cirrus and the University of North Dakota Aerospace Foundation negligent in 2009, and a jury awarded damages. But in April 2011, the appeals court reversed that decision. Wednesday's opinion upholds the appeals court ruling. :

The state Supreme Court found that manufacturers have a duty to warn of product dangers if it is reasonably foreseeable that someone could be injured. In this case, the justices said, the written instructions were enough. :

"But there is no duty for suppliers or manufacturers to train users in the safe use of their product. Indeed, imposing a duty to train would be wholly unprecedented," Justice Barry Anderson wrote in the majority opinion.:

The majority ruled that even if Cirrus assumed a duty to provide a flight lesson by agreeing to do so at the point of purchase, families could not recover damages under tort law. :

Justices Paul Anderson and Alan Page disagreed.:

"I conclude the majority's holding usurps the role of the jury and misreads our precedent," Anderson wrote in a dissenting opinion. :

He also said the majority overstepped its authority and he was concerned about the far-reaching consequences, saying the opinion "essentially held that no consumer of a dangerous product may ever hold a supplier liable for personal injury arising out of defective nonwritten instructions.":

The dissent also found it "absurd" that a supplier of an airplane would be held to the same standard as the supplier of a coffee pot. :

Philip Sieff, an attorney for Kosak's family, said he was disappointed the majority ignored a reasoned jury decision, and he agreed that there could be a potential for serious consequences down the line.:

Bill King, vice president of business administration for Cirrus, said his company isn't required to provide in-flight training but offers it because "it's the right thing to do." :

King said the decision gives manufacturers the ability to train people to use their products without fear of retribution if someone has an accident. But, he added: "There are still two families who are in crisis over an accident, and that is not lost on us."

State troopers being hit at high rate

Posted at 4:04 PM on April 5, 2011 by Bob Collins (5 Comments)
Filed under: Crime and Justice

One fairly shudders to think what would have happened to Brian Bammert, a Minnesota State Patrol trooper, had he not apparently been built like a truck.

Thirty-eight state troopers have been hit by cars since December. Two of them are Trpr. Bammert. He was hit by a car a couple of weeks ago. Bammert, 30, of Golden Valley was also hurt in last February's snowstorm when he was hit in the leg by a car that had lost control on the ice at I-394 and Penn.

A year ago, about 14 state troopers were hit during the winter months. This year it's close to 40.

On Thursday, the State Patrol in the St. Cloud area will hold a crackdown on people who don't move over -- or slow down -- for emergency vehicles on the side of the road.

(Photo: Minnesota State Patrol)

Wrongly sent to death row, man gets nothing

Posted at 12:21 PM on March 29, 2011 by Bob Collins (1 Comments)
Filed under: Crime and Justice

What does society owe someone who was wrongly convicted and sentenced to death row for 14 years? Nothing, the Supreme Court ruled today in a case that split the court's conservative and liberal wing.

John Thompson was a month away from execution in New Orleans when his investigator found a prosecutor had deliberately withheld evidence in his armed robbery conviction, which led him not to testify in his own defense in a subsequent trial for murder, for which he was also convicted.

He sued the district attorney -- Harry Connick Sr. -- for failing to teach his employees that evidence that could lead to a person's acquittal, needs to be turned over as well as the evidence that could lead to a person's conviction. He won a $14 million judgment, which the Supreme Court overturned today because Connick wasn't proven to have engaged in a pattern of violations.

As usual in cases like this, the court's opinion, available here free, is the type of writing people pay money for in a bookstore, with justices tossing rhetorical bombs at one another.

Justice Clarence Thomas, who wrote the opinion, establishing that a district attorney is not responsible for the individual action of a rogue prosecutor.

The role of a prosecutor is to see that justice is done... "It is as much [a prosecutor's] duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one." Ibid. By their own admission, the prosecutors who tried Thompson's armed robbery case failed to carry out that responsibility. But the only issue before us is whether Connick, as the policymaker for the district attorney's office, was deliberately indifferent to the need to train the attorneys under his authority.

Justice Ruth Bader Ginsberg, in the unusual move of reading her dissent from the bench, painted a picture of a district attorney's office hellbent on doing whatever it could to convict a person of murder, even crossing the ethical line:

The jury found Thompson guilty of first-degree murder.Having prevented Thompson from testifying that Freeman was the killer, the prosecution delivered its ultimate argument. Because Thompson was already serving a near-life sentence for attempted armed robbery, the prosecution urged, the only way to punish him for murder was to execute him. The strategy worked as planned; Thompson was sentenced to death.

That brought this from Justice Antonin Scalia, who suggested that the fault for the wrong convicted sat solely with one bad prosecuting attorney:

By now the reader has doubtless guessed the best-kept secret of this case: There was probably no Brady violation at all--except for (the prosecutor) Deegan's (which, since it was a bad-faith, knowing violation, could not possibly be attributed to lack of training). The dissent surely knows this, which is why it leans heavily on the fact that Connick conceded that Brady was violated.

Back to you, Justice Ginsberg:

A District Attorney aware of his office's high turnover rate, who recruits prosecutors fresh out of law school and promotes them rapidly through the ranks, bears responsibility for ensuring that on-the-job training takes place. In short, the buck stops with him.

It would be difficult to be Gerry Deegan today, reading the Supreme Court describe what a terrible prosecutor you were. But he died of cancer in 1994, reportedly acknowledging his misconduct on his deathbed.

Why didn't Thompson just sue the prosecutor for a wrong conviction? Apparently, it's against the law to do so (from October 2010):

Thompson was 22 when he was sent to death row. He's 48 now, and formed an organization, Resurrection After Exoneration, to help others in a similar situation. In 2009, he said he'd hoped to use the millions he won to create a trade school.

Who owns Target's front door?

Posted at 9:45 AM on March 25, 2011 by Bob Collins (7 Comments)
Filed under: Crime and Justice

This morning in San Diego, a judge will listen to arguments as to why canvassers should or shouldn't be allowed to seek signatures on petitions and donations in support of gay marriage.

Target is suing Canvass for a Cause because, it says in this court document, the group is interfering with its customers.

The filing comes from a security guard (which Target calls "executive team lead for assets protection.").

Canvass for a Cause solicitors typically start by asking our customers if they support gay marriage. If the answer is yes, they ask our customers to sign a petition and for a credit-card donation. If the answer is no, they challenge the customers on their beliefs. Whenever our customers say no, whether it is about making a donation, signing a petition, or about support for gay marriage, the solicitors become angry and aggressive, continuing to challenge our customers on their morals. I have seen them tell our customers not to vote if they are unhappy with the customers' views.

All Target stores have a no-soliciting policy and they're private property anyway. As WCCO's Jason DeRusha noted on Twitter a few minutes ago, they also ban the Salvation Army at Christmastime.

So what's the big deal?

Apparently, it's this. California recognizes free speech as trumping private property rights. (h/t: @lawnonymous)

Despite Hudgens' clear statement of federal law, the California Supreme Court held in Robins v. Pruneyard Shopping Center that the free-speech and petition provisions of the California Constitution grant mall visitors a constitutional right to free speech that outweighs the private-property interests of mall owners. The California Supreme Court took the position that "all private property is held subject to the power of government to regulate its use for the public welfare." In the unanimous 1980 decision Pruneyard Shopping Center v. Robins, the U.S. Supreme Court affirmed the state court's decision, noting that its own reasoning in Lloyd "does not ex proprio vigore ("of its own force") limit the authority of the State to exercise its police power" (power to regulate the use of private property) "or its sovereign right to adopt in its own Constitution individual liberties more expansive than those conferred by the Federal Constitution." A state may, therefore, in the exercise of its power to regulate, adopt reasonable restrictions on private property, including granting greater freedom to individuals to use such property, so long as the restrictions do not amount to a taking without just compensation or contravene any other federal constitutional provision. (In this instance it would be a "taking" of a property owner's right to exclude others.)

But Target says the courts have held that private stores inside private developers are not bound by that interpretation.

These cases make clear that Target stores are not themselves withìn the reach of the Pruneyard decision and that we do not need to allow people to use our property for expressive activity, Even in shopping malls that are within the reach of the Pruneyard decision, the right under Pruneyard is to use the common areas of the mall, not the area directly outside the Target store entrance. Individuals wishing to use the common areas within shopping malls should address the matter with the shopping mall owner or operator, not with Target.

The surveillance society

Posted at 4:49 PM on March 24, 2011 by Bob Collins
Filed under: Crime and Justice

A Michigan man has been charged with placing an explosive outside a federal building in Detroit in a case that has embarrassed the government because it was taken inside by a guard and left unattended for 20 days. It was a Husky Tool Bag with a metal chest inside.

But the real story may well be how they figured out it was him.

Check out this last paragraph from the Associated Press story:

The FBI said it focused on Mikulich after learning that Home Depot is the exclusive seller of the Husky tool bag. The store in Iron Mountain, near his home, sold a bag and a timer at the same time on Feb. 14, one of only nine similar sales at all U.S. locations since last fall.

It's a fine example of the little bits of data you leave about yourself at the places you shop.
According to the FBI, Home Depot's computer system tracked exactly what time a Husky tool bag was sold. Next time you're in Home Depot, look up and notice all the cameras. It wasn't hard to link the tool bag's sale to the exact cash register and get a picture of the person buying it.

It's even easier to be tracked, of course, if you spend the time to go online and fill out those "win-money-by-taking-our-survey" receipts, which links the exact purchase with a name and address.

Which shouldn't be much of a problem, perhaps, if you haven't left an explosive device somewhere.

But has anyone figured out why there were 8 other sales at the same time around the country involving -- apparently -- a tool bag and a timer?

(h/t: John Rabe)

Minnesota court to consider whether anti-tobacco lawsuit can continue

Posted at 12:30 PM on March 16, 2011 by Bob Collins (2 Comments)
Filed under: Crime and Justice, Marketing and advertising

The Minnesota Supreme Court has agreed to review whether an appeals court properly reinstated a 10-year-old, class action lawsuit against Philip Morris that claims the company fraudulently marketed Marlboro Lights as a safer cigarette.

Last December, the Minnesota Court of Appeals reinstated the dormant case against the tobacco maker, reversing a district court ruling that Philip Morris "could not be sued for false advertising, consumer fraud, and deceptive trade practices regarding light cigarettes in violation of Minnesota consumer-protection statutes."

The group filing the suit claims the tobacco company marketed the Marlboro Lights as safer than a typical cigarette.

But the tobacco company argues that the tobacco trial settlement with then Attorney General "Skip" Humphrey barred the lawsuit.

Today, Supreme Court Chief Justice Lori Gildea issued an order accepting the tobacco company's request for review.

The Minnesota case mirrors several others filed in other states, with varying results. In Illinois last month, for example, a state appeals court reinstated a case that originally ended with a $10 billion judgment against the company.

The actions at the state level were revived after the U.S. Supreme Court ruled that a federal law regulating cigarette advertising did not prevent Maine from enforcing a state law banning false advertising in cases involving cigarettes.

Sometimes the truth doesn't set you free

Posted at 1:31 PM on March 11, 2011 by Bob Collins (10 Comments)
Filed under: Crime and Justice, Media

The trial of a Minneapolis blogger, accused of defaming a man and causing him to lose his job at the University of Minnesota, is over.

John Hoff, aka "Johnny Northside" has to pay Jerry Moore $60,000 in the defamation suit against him, the Twin Cities Daily Planet reports.

Hoff had written on his blog that Moore, a former executive director of the Jordan Area Community Council, had been involved in a fraudulent mortgage scheme and questioned why he'd subsequently been hired by the university.

The jury said that while what Hoff had written was true, it caused him to lose his job, and awarded him $35,000 damages and $25,000 for emotional distress.

Is this a message to bloggers everywhere? The TCDP noted the closing statements of Moore's attorney:

Moore's attorney Jill Clark said in her closing statement that much of the discussion of the First Amendment and freedom of the press as it relates to blogs "is really not relevant." She also said, "There need to be some limits on blogs." Clark pointed to Hoff's lack of objective reporting. "The reporter loses objectivity when he enters the story," she said.

Don Allen, named in the original suit, settled with Moore and testified against Hoff. He told the Star Tribune the verdict sends an appropriate message:

"It's unfortunate for all bloggers, but you have to have some sense of responsibility," he said. "You have to attack the issues, not the individuals."

There was a small win for bloggers in the trial. The judge ruled early on that Hoff wasn't responsible for the comments left on his blog by readers.

I'm interested in hearing from independent bloggers on whether this case changes how you'll approach what you write,

(h/t: Laura Yuen)

Charges filed in case of child thrown into snowbank

Posted at 12:03 PM on March 8, 2011 by Bob Collins (1 Comments)
Filed under: Crime and Justice

I wrote a short post yesterday about several stories involving parents and their babies and noted the case in Minneapolis of a baby thrown into the snow. Several commenters suggested there must be more to the story.

Today, the Hennepin County Attorney filed the complaint against the mother.

couch

Medical examiner: Gay teen's death was suicide

Posted at 4:42 PM on March 7, 2011 by Bob Collins (4 Comments)
Filed under: Crime and Justice

The results are in from the autopsy on a high school student in Miltona who died from what some said was a suicide but which is father insisted was a heart condition.

KSAX TV in Alexandria reports Lance Lundsten died from a mixed drug ingestion. The Douglas County medical examiner has ruled the case a suicide, the station reports.

Lundsten's death had fueled a renewed debate over suicides of gay teens who had been bullied, but it quelled somewhat when his father said Lundsten died from a known medical condition.

The debate also sparked an usual public argument between the Alexandria Echo Press newspaper, which had criticized the TV station for not accepting the father's version of events.

Book closed on open sore

Posted at 12:42 PM on February 11, 2011 by Bob Collins
Filed under: Crime and Justice, Media

Chandra Levy's killer was given a 60-year prison term today.

She was a Capitol Hill intern and her killing was a media sensation until it wasn't anymore.

Who killed her?

a) Rep. Gary Condit
b) Ingmar Guandique

If you guessed "b," you probably didn't pay much attention to the news coverage, which determined that Condit -- no saint, here -- probably did it. Except he didn't.

It took the Washington Post to do the job should've done, and reported the story the way the media should've reported it. As it turned out, the cops were being pushed by the media; the tail was wagging the dog.

Same-sex marriage showdown underway in Iowa

Posted at 3:03 PM on February 2, 2011 by Bob Collins (5 Comments)
Filed under: Crime and Justice, Politics

"Your family doesn't derive its sense of worth from being told by the state, 'Congratulations, you're married,'" Zach Wahls, 19, told Iowa lawmakers yesterday. Wahls was raised by two women, and testified in opposition to a bill that would put a ban on same-sex marriage on the ballot in Iowa.

Although the House of Representatives has advanced the bill, the Senate Majority Leader, Mike Gronstal, is blocking it from coming to the floor of the Iowa Senate for a vote.

Here's the House resolution:

A Joint Resolution proposing an amendment to the Constitution 1 of the State of Iowa specifying marriage between one man and one woman as the only legal union that is valid or recognized in the state.

BE IT RESOLVED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA: 5 TLSB 1109YH (7) 84 pf/rj
H.J.R. 6 Section 1. The following amendment to the Constitution of 1 the State of Iowa is proposed: 2 Article I of the Constitution of the State of Iowa is amended by adding the following new section:

Marriage. SEC. 26. Marriage between one man and one woman shall be the only legal union valid or recognized in this state. Sec. 2.

REFERRAL AND PUBLICATION. The foregoing amendment to the Constitution of the State of Iowa is referred to the general assembly to be chosen at the next general election for members of the general assembly, and the secretary of state is directed to cause the same to be published for three consecutive months previous to the date of that election as provided by law.

EXPLANATION. This joint resolution proposes an amendment to the 16 Constitution of the State of Iowa specifying that marriage between one man and one woman shall be the only legal union valid or recognized in this state. The joint resolution, if adopted, would be referred to the next general assembly for adoption a second time before being submitted to the electorate for ratification.

The Des Moines Register profiles several politicians who are taking a , perhaps, unpopular stand:

As a Catholic, Sen. Tom Rielly, D-Oskaloosa, believes marriage is "one-man, one-woman, one time," he said.

"But I'm not going to use that as a test to deny someone their civil rights. I've read the decision a couple dozen times, and I just for the life of me don't understand how anybody can say, 'This couple over here, you can enter into a civil contract to get health insurance, tax status, pension benefits, survivor benefits, end-of-life care. But you over here, because you're gay, you can't do that.'

"How is that not discriminatory?"

Iowa's Supreme Court unanimously struck down Iowa's ban on same-sex marriage in 2009 (See opinion). In November, voters turned three of the seven justices out of office.

Drug testing for welfare recipients?

Posted at 12:04 PM on February 2, 2011 by Bob Collins (16 Comments)
Filed under: Crime and Justice, Politics

Old bills are again making new appearances at the Legislature.

Republicans in the Minnesota House today filed a bill requiring recipients of MFIP -- that's the welfare system for low-income residents -- to prove they're not on drugs or alcohol.

It's a dead-on-arrival bill from the past that has a chance of passage this year. Sen. Amy Koch, who now is the Senate Majority Leader in Minnesota, filed a similar bill in 2008 that went nowhere.

Michigan was the first state to pass a similar law, but it failed a constitutional test. It was deemed an unreasonable search.

Here's the bill:

Eligibility; drug screening. (a) To be eligible for MFIP, an applicant must undergo drug and alcohol screening, to the extent practicable, following the established procedures and reliability safeguards provided for screening in sections 181.951, 181.953, and 181.954. A county agency may require a recipient of benefits to undergo random drug screening. An applicant must provide evidence of a negative test result to the appropriate county agency prior to being approved for MFIP benefits and prior to receiving an extension of benefits under section 256J.425.

(b) A laboratory must report to the appropriate county agency any positive test
result returned on an applicant or recipient of MFIP benefits. Upon receipt of a positive test result, a county agency must deny or discontinue benefits until the applicant or recipient demonstrates a pattern of negative test results that satisfies the agency that the
person is no longer a drug user.

(c) MFIP applicants and recipients shall pay for the full cost of each screening.

The alcohol screening is a different twist. While it's illegal to use drugs, alcohol is a legal substance. Should that make a difference?

Other states have considered a more broad requirement. In West Virginia, unemployment benefits and money for WIC -- women, infants, and children -- would also similarly require a drug test first.

Sen. Orrin Hatch has proposed a federal drug-testing requirement.

In other news, a Republican Democratic lawmaker has filed a bill to repeal the ban on alcohol sales on Sunday.

Coincidence? Or a tragic example of the power of the press?

Posted at 12:18 PM on January 27, 2011 by Bob Collins (3 Comments)
Filed under: Crime and Justice

You may recall the controversy last fall when a newspaper in Uganda printed pictures of homosexuals in the country with "hang them" on the front page...

David Kato, an advocacy officer for the gay rights group Sexual Minorities Uganda, is the gentleman on the left in the newspaper above.

He's dead.

Witnesses have told the BBC that "a man entered Mr Kato's home near Kampala, and beat him to death before leaving."

The police say the killing is unrelated to the "outing" campaign of the newspaper

Supreme Court hands dairy farmers a win over stray voltage

Posted at 1:22 PM on January 26, 2011 by Bob Collins (15 Comments)
Filed under: Crime and Justice, Energy

A divided Minnesota Supreme Court ruled today that two Wabasha County farmers can seek money from an electric utility, whose stray voltage, they say, has caused their cows to give out less milk (see opinion). The stray voltage is also believed to have killed 80 dairy cows.

In upholding a lower court's ruling, the Supreme Court said Greg and Harlan Siewert of Zumbro Falls are free to seek damages from Northern States Power Company, the parent of Xcel Energy. When the two moved to their new farm in 1989, they noticed the milk production decreased from their 150-200 cows. Experts said it was because electrical current returned to the ground through the cows.

"It's a slow, painful tortuous death, is what it is for them," Greg Siewert told the Star Tribune in 2008. "It's like watching someone die of AIDS."

The court rejected the utility's claim that any damages would impact electricity rates in violation of state law, especially if it had to redesign its electrical distribution system.

In her dissent, Chief Justice Lori Gildea wrote, "the judiciary is not in the position to order NSP to adopt one electrical distribution system over another without potentially undermining the nuanced balancing and determinations made by the Minnesota Public Utilities Commission..."

She acknowledged, however, that "NSP did not deliver electricity in the safest or most prudent way."

The effect of stray voltage on cows has been a controversy in Minnesota since farmers started raising the issue in the 1990s. About a half-dozen farmers have filed suit over the years against utility companies.

The limits of free speech

Posted at 1:21 PM on January 25, 2011 by Bob Collins (7 Comments)
Filed under: Crime and Justice

"How can you get on the Internet and trash someone with no justification whatsoever and think you can get away with it?" Gene Cooley asked.

"It's the Internet," is no longer a good answer.

Cooley's fiancee was killed in 2008 when her ex-husband shot her before he killed himself.

. An anonymous poster on a local bulletin board, hiding behind six user names, labeled Cooley, among other things, a pervert and a drug user, according to WXIA TV in Atlanta.

Last week a jury awarded Cooley $404,000 in a libel suit.

Now it gets a little more complicated. The lawyer who represented Cooley says he's working on legislation to make similar situations a crime, not just a civil matter.

The Moscow bombing

Posted at 11:26 AM on January 24, 2011 by Bob Collins (2 Comments)
Filed under: Crime and Justice, Disasters

Some eyewitness video has now been posted to YouTube from today's suicide bombing at a Moscow airport.

Caution: It's graphic.

Teen death story igniting media feud in central Minnesota

Posted at 2:50 PM on January 21, 2011 by Bob Collins (1 Comments)
Filed under: Crime and Justice, Media

There's quite a media spat playing out in the Alexandria area following the death last weekend of a teenager, which some said was a suicide, and which his family said was a known medical condition (I wrote about this on News Cut earlier this week).

What we know is that Lance Lundsten is dead. What we don't know is why.

Several media in the area cited his friends in stories saying Lundsten was bullied for being gay, and that may have contributed to a suicide. The teen's father called media saying the coroner told him the death was due to an enlarged heart.

On that, the Alexandria Echo Press reported the death was because of a medical condition. KSAX, the local ABC affiliate in Alexandria, noted the father's story, but then quoted the coroner:

Douglas County Medical Examiner Dr. Mark Spanbauer said the preliminary autopsy report showed the teen did not die from an enlarged heart.

The teen's heart was slightly enlarged, but that finding was a secondary finding to an undetermined cause, according to Spanbauer.

Spanbauer said what actually caused Lundsten's heart to slightly swell was not yet known, as the final autopsy report was still in progress.

The Echo Press newspaper stayed with the father's version of the story, but then amped up the dispute with a blistering editorial against KSAX and Facebook.

Unfortunately, whipped up by the Facebook frenzy, the distorted story of Lundsten's death took on a life of its own. A TV station reported about the Facebook speculations and it snowballed quickly from there, getting reported by other media outlets as well - a sad case of media reporting what other media were reporting, even though it was untrue.

Some Jefferson High School students threatened a walk out, believing the school wasn't taking the bullying issue seriously enough.

Anti-bullying groups were quick to pick up on the death, spreading the story further. U.S. Senator Al Franken called attention to the incident to drum up support for anti-bullying legislation. Images of Lundsten connected to headlines of bullying and suicide popped up all over the Internet - even on a website in France.

It shouldn't have happened this way.

Echo Press editor Al Edenloff confirmed today the newspaper hasn't contacted the coroner, but based its editorial on the statement from the dead teen's family:

According to Lance's family, the coroner said Lance had cardiac edema and that no other contributing factor had been found during the preliminary investigation (note the word "preliminary"). The family said that all of the prescription pills in the home had been accounted for and there was no indication of drug use. However, as we stated in our story, it will take six to eight weeks for the complete toxicology results are determined. The KSAX story squares, in part, with what the family told us -- that Lance had cardiac edema. No one knows the exact cause of death yet, which the coroner also told KSAX. The cause won't be determined for another six to eight weeks and no one knows what that will reveal. We talked to the family on Tuesday morning and KSAX talked at the coroner at a later date. Its story came out Wednesday. To answer your question directly: No, we did not contact the coroner because at this point, no one, including him, knows the cause of death yet. We do know, however, that the coroner told the family Lance had cardiac edema and that's what we reported. We will be contacting the coroner when the results come back.

That requires a response from Christi Jessee, the news director if KSAX.

I find it very hypocritical that the Echo Press accuses KSAX-TV of reporting rumor and speculation, when it seems to be knowingly perpetuating it. Selective facts have been reported, but the most important facts released by official sources in this case are, deliberately it seems, ignored. The truth is not always comfortable. But journalists should not ignore facts in an effort to comfort a grieving family.

Dr. Spanbauer was not available when MPR News attempted to contact him today.

Fact-check: Guns and violence

Posted at 11:21 AM on January 20, 2011 by Bob Collins (2 Comments)
Filed under: Crime and Justice, Politics

How big a part did Arizona's gun laws play in the assassination attempt on Rep. Gabrielle Giffords in Tucson nearly two weeks ago?

U.S. Rep. Trent Franks says Arizona's gun violence rate is lower than that of Washington, D.C., which has more restrictive gun laws.

Franks made his comment in a Time Magazine article this week asking whether gun control is dead:

The vast majority of the state's politicians -- including Loughner's primary target, Congresswoman Gabrielle Giffords, a Democrat and gun owner -- are strong Second Amendment supporters. Congressman Trent Franks, a Republican and gun owner, points out that Arizona has a much lower gun-violence rate than Washington, D.C., which has much more restrictive gun laws. "Criminals always prefer unarmed victims," Franks says. There have been no reports out of Arizona of any credible push for new gun restrictions; in fact, several reports show citizens are flocking to gun shops to increase their firepower.

True? The Arizona Republic fact-checked the assertion today, and found it is... sort of.

David Hemenway, director of the Harvard Injury Control Research Center and author of "Private Guns, Public Health," largely agrees.

"You want to compare rural states to rural states and urban states to urban states, and you don't want to compare cities to states," Hemenway said. "You want to have everything else as similar as possible. Otherwise you could say, 'In Japan, they smoke more than in the United States, yet they have lower heart disease. Smoking must be beneficial for heart disease.' It's silly. There are too many other things."

The paper noted that Massachusetts, which has roughly the same population as Arizona, but has stricter gun laws, has half the "gun violence" of Arizona.

The fact-check concludes by saying Franks' assertion is misleading.

Breaking: Asset trader charged with threatening officials

Posted at 10:39 AM on January 14, 2011 by Bob Collins (2 Comments)
Filed under: Crime and Justice

This story is breaking this morning. The feds are charging a commodities trader with, basically, putting a bounty on the heads of government officials and other officials.

WNBC in New York reports:

The FBI arrested the head of an asset management firm for allegedly threatening 47 government officials with the Securities and Exchange Commission and the Commodities Futures Trading Commission.

Officials said Vincent McCrudden posted a $100,000 reward on a website for information that proved these officials had been "punished." Federal prosecutors also said he sent numerous emails threatening individual workers.

McCrudden is expected to be arraigned in federal court in Central Islip Friday afternoon, a spokesman for U.S. Attorney Loretta Lynch said.

The story might continue the story line of "heated rhetoric." The Federal Elections database shows a Vincent McCrudden of Long Island (listed as a self-employed trader) contributes to national Democratic organizations, though it's not clear it's the same Vincent McCrudden that was arrested at Newark Airport last night.

Update 1:02 p.m. -Reader Bob Moffit has found the "elusive Minnesota connection," according to McCrudden's Web site:

Mr. McCrudden is a former soccer player at the University of Rhode Island, and then played professionally for the Tampa Bay Rowdies and Minnesota Strikers of the NASL.

The freedom to assassinate?

Posted at 3:32 PM on January 13, 2011 by Bob Collins (5 Comments)
Filed under: Crime and Justice

It was like old times at the White House today. A reporter from Russia quizzed White House press secretary Robert Gibbs about this freedom thing that you Americans appear so fond of.

Here's the civics lesson that came out of the exchange (On video, scroll to 50:20):

Q First my condolences to all the Americans, especially obviously to the victims. But second as to why -- it does not seem all that incomprehensible, at least from the outside. It's the reverse side of freedom. Unless you want restrictions, unless you want a bigger role for the government --

MR. GIBBS: Well, let me do this -- because, look, I think there's a -- there's an investigation that's going to go on -- there's a --

Q No --

MR. GIBBS: Hold on, let me -- let me take my time back just for a second. I think there's an investigation that's going to go on. I think there are -- I think as it goes on, we will learn more and more about what happened.

I think as the President was clear last night, we may never know fully why or how. We may never have an understanding of why, as the President said, in the dark recesses of someone's mind, a violent person's mind, do actions like this spring forward. I don't want to surmise or think in the future of what some of that might be.

But I think it's important to understand that, as I said earlier, the event that was happening that day was the exercise of some very important, very foundational freedoms to this country: the freedom of speech; the freedom to assemble; the freedom to petition your government; democracy or a form of self-government that is of, by and for the people -- all of -- all very quintessential American values that have been on display along with the tremendous courage and resilience of those in that community and throughout this country that have had to deal with this tragedy.

Yes.

Q Exactly, Robert. But this is what I was talking about -- exactly this. This is America, the democracy, the freedom of speech, the freedom of assembly, the freedom to petition your government. And many people outside would also say -- and the quote, unquote "freedom" of a deranged mind to react in a violent way is also American. How do you respond to that?

MR. GIBBS: I'm sorry. What's the last part?

Q The quote, unquote "freedom" of the deranged mind to respect -- to react violently to that, it is also American.

Q (Another reporter) No, it's not.

MR. GIBBS: No, no, I would disagree vehemently with that. There are -- there is nothing in the values of our country, there's nothing on the many laws on our books that would provide for somebody to impugn and impede on the very freedoms that you began with by exercising the actions that that individual took on that day. That is not American.

There are -- I think there's agreement on all sides of the political spectrum: Violence is never, ever acceptable. We had people that died. We had people whose lives will be changed forever because of the deranged actions of a madman. Those are not American. Those are not in keeping with the important bedrock values by which this country was founded and by which its citizens live each and every day of their lives in hopes of something better for those that are here.

On a less contentious note, Gibbs also revealed how the word about Rep. Gabrielle Giffords opening her eyes for the first time made it into last night's speech:

Well, he -- just to go through the arc of it -- we talked a little bit about this, again, late on the plane but I should do it for everybody who might not have seen that. This happened -- his first stop in the second-floor ICU was in her room, spent about 10 minutes there with members of her family, with her husband. And then goes on throughout the hospital seeing other patients, doctors, nurses, other staff, thanking them for what they had done.

The three friends go in -- and I don't know the exact time -- and have the exchange and there's the miracle of opening her eye and of responding to their voices and their memories as they're talking aloud to her.

The President ended by seeing the trauma team that had first received those harmed in the shooting on Saturday, and then got into the car for the very short drive to the McKale Center. In the car, along with the First Lady, was her husband and her mother, and that's when the President first heard the story and talked to the husband about whether he would be comfortable with sharing that story. Obviously there's a lot of personal and privacy issues that I think the President wanted to ensure -- he didn't write any of it out.

He mentioned to me -- we ended the meetings with the families about nine or 10 minutes before the President went out and in the hold he mentioned to me that at that -- that he would insert that story in the portion of the speech where he discusses how she's aware that we are all there rooting for her. And that's how it all came to pass.

Memorials in pictures

Posted at 11:55 AM on January 13, 2011 by Bob Collins
Filed under: Crime and Justice

Courtesy of Flickr, here are images of various memorials in Tucson to the shooting victims:

Assessing Arizona

Posted at 5:14 PM on January 10, 2011 by Bob Collins (10 Comments)
Filed under: Crime and Justice

In the aftermath of the shootings in Arizona on Saturday, several of MPR's social networking efforts and our Public Insight Network staff have been collecting your reaction. Here are some of the more compelling comments we've received:

I think this brings up major concerns regarding the political divide in our country. Politicians and the pundit-style shows have established a mindset that we have a two-sided system where one side is pure good and the other side is pure evil. As a country we need to acknowledge that there are shades of gray and that everyone wants to do what they think is best for the country, even if I disagree with it. What impact will this event have on the public's access to politicians? Currently politicians spend most of their time with lobbyists who have paid for the privilege. Commoners have lost their access and now will lose even more.
Jason DeBoer-Moran

I am a linguistic anthropologist with a specialization in discourse analysis and public rhetoric. Extremist political rhetoric has always been with us. However, it has accelerated in recent years due to the rapidity and ubiquity of public and social media. The chance that individuals will get caught in this web of extremism is greater today than in the past. The power of symbolism in public rhetoric as a motivating force is crucial. People an only imagine what they can imagine. Public commentators have the power to change the mindset of the public by giving people the opportunity to reframe their thinking--often in negative directions.

William Beeman

Until someone is a credible threat to themselves or others, I think we can't help someone until they are ready to be helped. What worries me is how much credibility we give people's writings online. There are thousands of people who will say the most outrageous things online but would never take steps to hurt anyone. I don't want this to become a witch hunt about extreme views.

Camille Holthaus

I was a postal supervisor at the time that people were shooting up postal facilities. Believe me, we did a lot of thinking about people like Loughner. The postal service promulgated and enforced a no firearms policy. It is simply known that if you are stupid enough to take a firearm into a postal facility, you are already in trouble. This means that if you are going hunting after work, and you take your rifle to work in the trunk of your car, you can be fired. People have been fired. Note that the postal service does not have shootings any more. The firearms ban is only a small part of a comprehensive anti-violence program. Society needs an anti-violence program; you might want to look at the elements of the postal program to see what that program might be.

Paul Ryberg

The ultimate responsibility rests upon the shoulders of the shooter. That being said, the move to deinstitutionalize the mentally ill has led to less access to treatment. Additionally this has also led to the refusal of treatment by the severely mentally ill, who, nearly by definition lack the capacity to render competent judgment upon their respective mental state and to their need for treatment.

Leo Pusateri

As an immigrant from Europe, the American fascination with guns both puzzles and dismays me. I do not understand why it is considered OK for someone to buy a dangerous weapon and not have to take any kind of training, and can just walk out of the store with it. The fantasy is that you will be able to protect yourself. Well. How come then, than when people saw what was going on around Gifford, that someone with a gun did not take action!

Susan Clarke

In every case of a gun crime, the specific gun used and its characteristics need to be prominently described by the media, as happened here. Slowly, I think, the public will come to know there is a difference between guns for killing people and guns for hunting, and maybe that's an important difference.

Brent Wennberg

Despite my anti-handgun and anti-violence views, we need to step back from the analysis of this particular situation. Yes, the rhetoric and the cross hairs may have influenced the shooter, but there is a good chance they didn't. The man who shot Reagan thought he was protecting make believe actress girl friend, not making a political statement The initial speculation of Arab terrorists in the OK City bombing were completely wrong. A very popular minister was stabbed to death in Sweden a few years ago by a mentally ill man without political motives. Trying to place blame based on pure speculation helps no one. People will hold onto speculation they agree with long after it has been proven completely and undeniably false, and it only serves to harden the already overly contentious divisions in this country.

Paul Conklin

I own over 10 firearms and I bad mouth all who think it is cool to own a pistol let alone an AK or the like. I hunt and am shocked by the guys I see at the range with banana clips and their military weapons. I feel that we do have a right to have guns and I see no hope in regulating this practice. All it will do is pull any and probably all gun owners to the wrong side of question. It is a little like abortion. It is a no-win argument.

Thomas Mickelson

We've had attempted assassinations by people with unstable personalities for as long as the country has existed. Trying to use this tragedy as a political weapon to go after (or blame) those with opposing viewpoints is intellectually dishonest and the most base and cynical kind of partisanship--ironically, the very thing those doing so are trying to blame.

Mark Luebker

How about it's not political so much as it is symbol of our national mental health crisis? If this young man was "mentally unstable" as the media continues to speculate, how did he get to the point of hurting other people? When you contact a mental health practitioner, the first answering machine statement is "if you believe you might hurt yourself or other people, please call 911." This young man needed mental health crisis control and I would submit that there is not enough staff in the mental heath world to care for all patients who need help.

Marti Priest Nelson

The recent and tragic shooting, while it does remind politicians, the media, and the general public of the hazards of the noxious political rhetoric between the polar opposites of our country and a need for a call to political and social civility, it really needs to be looked at from a mental health perspective. Millions of us, daily, take in the political discourse without taking up a gun. Loughner needed greater mental health screening. When we see mental illness as a form of terrorism on homeland soil, we may be on the right track. Education, screening, outreach, prevention, and intervention are just some of the measures we need.

Alena Goldfarb

Maybe the silent majority, who I believe still have common sense and understand the golden rule, can't be silent anymore. Shine a light on the inappropriate, talk to friends, family, and strangers use your voice and speak the truth in love before crazy fear totally rules all our lives!

Rae Ann Mathias

This question presupposes that something needs to be done. It's been a long, long time since there has been a successful assault on a public official, meaning that the security we have in place is working. If we as a nation continue to put into place unnecessary security functions because of singular acts, we are going to burden and tax ourselves for no purpose. There is no perfect defense against the fringe, the best we can hope for is secure enough to avoid these tragedies most of the time, and we are there already.

Jon Bohlinger

The Arizona shooting

Posted at 7:42 PM on January 8, 2011 by Bob Collins (10 Comments)
Filed under: Crime and Justice, Race

Here's the latest we have from multiple sources on the shooting of Gabrielle Giffords and her staff. We're not going to engage in speculation, but are providing information about what we know as fact. The latest items are at the top.

10:25 p.m. - Beefed up security was observed at an inaugural ball for Gov. Mark Dayton. Several members of Congress attended.

10:20 p.m. - One late update. The Arizona Republic identified the 9-year-old girl who was killed as Christina Taylor Green of Tucson:

A neighbor was going to the Giffords event and invited Christina along because she thought she would enjoy it, said her uncle, Greg Segalini.

Christina had just been elected to the student council at her school. The event, held outside a Safeway supermarket north of Tucson, was an opportunity for constituents to meet Giffords and talk about any concerns they had related to the federal government.

7:40 p.m. - That's the end of the briefing. Another will be held tomorrow. Here's the takeaway:

-- 19 people were shot; 6 died.
-- the sheriff stressed the connection between "vitriolic rhetoric" in the media and today's shooting.
-- they're looking for another person who may be involved.

This will conclude today's live-blogging. Feel free to discuss the situation below.

7:38 p.m. - Dr. Richard Carmona, a former surgeon general and friend of the Giffords family, is speaking. He did not illuminate the extent of the congresswoman's injuries other than it's a head wound. He said he did not know yet whether there will be any long-term brain damage.

7:33 p.m. - Sheriff: "People tend to pooh pooh what we're saying about the vitriol by the people who are doing that. That may be free speech, but it has consequences."

7:29 p.m.- Now speaking, Capt. Chris Nanos, in charge of criminal investigations for the county sheriff.

Q: Did the 9 year old die at the hospital?

A: Yes.

Q: At what range were the shots fired?

A: Very close.

Q: Was he just spraying bullets?

A: I can't get into specifics.

7:11 p.m. - Sheriff: There are 19 victims, six of whom are dead. One is a 9-year old girl.

QUESTIONS AND ANSWERS:

Q: Was the congresswoman the target?

A: Yes

Q: Had she been receiving threats

A: I'm not aware of any public officials who haven't received threats. She had two incidents during a vitriolic campaign. Someone in an angry audience dropped a weapon out of their pants. Around the same time, windows were broken at her headquarters.

Q: Tell us more about the suspect

A: He's got a troubled past. "When you look at the rhetoric that comes out of people's mouths, it's outrageous, and unfortunately Arizona is the capital. We've become the mecca of intolerance and bigotry." This person had a mental issue and was susceptible to vitriol.

Q: Were all 19 shot?

A: Yes. It was an automatic weapon. We're not going to get into specifics.

Q: Was the other suspect a shooter?

A: No.

Q: Is security being upgraded for other elected officials.

A: No. It's not unusual for every public official to get threats. And that's the other thing: Pretty soon we're not going to be able to get real, decent people to serve in public office.

Q: Was there any return fire from anyone?

A; No.

Q: Did the shooter say anything.

A: We don't have any specifics about what he might or might not have said.

Q: Where do you think the other suspect is heading?

A: We don't know where he's heading. We don't know who he is.

Q: What was the shooter's complaint? Was it illegal immigration?

A: I don't know. He has invoked his rights.

Q: The individuals who tackled the suspect, can you say with certainty that they prevented more deaths?

A: I don't know if he had any ammunition left but he probably would've shot more people.

Q: What sort of troubled had he been in before?

A: He made threats. (Not against the congresswoman)

Q: Was he planning to kill himself?

A: We think that may be a possibility.

Q: Was the 9 year old girl with her parents. Was she a relative of the Giffords?

A: We don't have that information. This was a chaotic scene and they've gone to different hospitals. It's been difficult to sort all of these things out.

Q: Was there any suicide note found?

A: I can't talk about that.

Q: How many people were killed at the scene as opposed to died at the hospital?

A: Five

Q: Were all the people who were shot attending the event?

A: I don't know.

7:10 p.m. - Nathan Thomas Gray, special agent in charge of the FBI in Arizona is speaking. "The events of today not only affect the citizens of Arizona and the families involved, it touches the hearts of Americans throughout the United States."

7:09 p.m. - Sheriff: "We're not convinced the suspect acted alone. We have reason to believe he came to the scene with someone else." Not naming the suspect.

7:05 p.m. Dupnik: Five people were killed. Two were friends of the sheriff. One was a councilwoman. The federal judge went to mass before stopping in to "say hi" to the congresswoman. "I never met a more sincere, brilliant, fair-minded judge in my life. He goes to mass daily and he was going to go home and do the floors as he did every Saturday."

"Congresswoman Giffords is brilliant. She's not about Democrats or Republicans. She's not about politics. All she cares about is the United States of America. Today, I hope all Americans are as saddened as shocked as we are. I hope some of them are as angry as I am. I think it's time as a country that we need to do a little soul searching. The vitriolic rhetoric that we hear day in and day out by people in the radio business and some in the TV business, this has not become the nice United States of America that we grew up in."

7:03 p.m. -Pima County Sheriff Clarence W. Dupnik is holding a news conference. "In my 50 years in law enforcement, I've never been so shocked as I am today. It's a sad day for America.

6:47 p.m. - Rep. Erik Paulsen was in a Young Leaders Foundation program with Rep. Giffords. He talked with MPR's Brandt Williams this afternoon.

6:38 p.m. - The Pima County sheriff is holding a briefing at 7 p.m. I'll monitor.

6:36 p.m. - This Arizona Republic observer of media has thoughts on the coverage today:

But what makes it so powerful can also make it dangerous. There are no filters. While conflicting reports of Giffords' condition were hardly unique to social media - often people just tweeted or posted what they had heard from traditional news sources, which scrambled to get the facts straight - the immediate political slant was striking. Within minutes the shootings were decried as politically motivated, an inevitable result of violent rhetoric. Maybe they will prove to be. Certainly using terms like "crosshairs" and "target" in political discourse, if you could call it that, is idiotic. Those who have used such terms were called out immediately and often. Perhaps this will change the behavior of those who use such language - though anyone who has paid attention to politics the past few years has every reason to be doubtful.

However, people also immediately assigned political motive to the shootings, as if it was a given that the suspect was acting solely out of partisan disagreement with Giffords' policies. Again, perhaps he was. But to say so before law enforcement has even talked to the guy is, to put it diplomatically, irresponsible.

I had some debate about this earlier on Twitter, with some suggesting this is just the way the new journalism is. But is it? A fact transmits by new media just as quickly as a falsehood. Facts should not be collateral damage. To the extent that information changes quickly, it's important to ask "how do you know?" in any breaking news situation and, more important, to attribute the source of information to a source. In this case, it would appear, someone who was not willing to be identified was responsible for the apparently false information. That should have been the first clue that the information may not have been reliable.

The truth is: We still don't know about Rep. Giffords' condition and, according to doctors, we won't know for 24 hours from the time of her surgery. Not being willing to wait that long doesn't give anyone an excuse to create a reality. "I don't know," should never go out of style as the best possible answer in the absence of facts.

5:06 p.m. - Background: Rep. Giffords was on FoxNews yesterday:

4:50 p.m. - Statement from U.S. Capitol Police:

The United States Capitol Police are directly involved in the ongoing investigation regarding the shooting of Congresswoman Gabrielle Giffords in Arizona. We are currently working with Federal, state and local law enforcement agencies.

While the United States Capitol Police does not specifically discuss the security of Members of Congress including details on our protective measures, the United States Capitol Police has communicated with House Members of Congress advising them to take reasonable and prudent precautions regarding their personal safety and security.

The United States Capitol Police remains at a high level of readiness, consistent with our operating conditions on U.S. Capitol Grounds, and we continue to maintain a robust presence.

4:33 p.m. - Statement from Sen. Amy Klobuchar, D-MN:

"Congresswoman Giffords was doing what so many public servants do every day, meeting with her constituents, listening to the people who sent her to Washington. This is a horrific tragedy, and my thoughts and prayers are with Congresswoman Giffords, her husband, family, and the other victims."

4:27 p.m. - Federal Judge John Roll, who was killed today, was placed in federal protection (along with his wife) after death threats in 2009. He was presiding judge in a lawsuit against a rancher by immigrants, according to Arizona Central.

4:09 p.m. - U.S. District Court judge John Roll once ruled the Brady Bill (gun control law that required sheriffs to perform background checks) is unconstitutional. His ruling, however, was later overturned by the Ninth Circuit Court of Appeals.

3:59 p.m. Arizona Gov. Jan Brewer is speaking. "I am just heartbroken. Gabby is not just a colleague; she's also a friend. We never could have imagined this could have taken place," she says. "Pray that we never have to experience a tragedy like this again."

The representative was in the Arizona House of Representatives when Brewer was in the secretary of state's office.

3:46 p.m. -President Obama is speaking to the nation. He confirms the death of Judge Rohn Roll. Says Rep. Giffords "is fighting for her life."

"We don't know what precipitated this unspeakable act," he says.

"It's not surprising that today Gabby was doing what she always does -- listening to the hopes and concerns of her neighbors. That's what democracy is all about. It's a tragedy for Arizona and a tragedy for our entire country. What Americans do at times like this is come together and support each other."

The president did not take questions.

3:41 p.m. - KPNX TV coverage of the story (Phoenix)

3:36 p.m. - This YouTube account is from a person with the name AP is reporting has been arrested in the shooting. Warning: There is no confirmation that this is, indeed, the work of the individual who has been arrested. (It is likely not since the name is spelled differently)

3:34 p.m. From NPR political editor Ken Rudin's blog:

What is also unsurprising, but regrettable, is that everyone is ascribing a motive for the shooting without any credible information.

The Internet and the Twitterworld have been filled with speculation on why she was shot: that she was too liberal and was shot by a Tea Party conservative. Or that she was too moderate and shot by someone on the left.

All we know is that the shooter is under custody. No statement has been released, no motive revealed. Self-anointed "journalists" should keep such opinions to themselves until we know more.

3:28 p.m. - Statement from Sen. John McCain, R-AZ:

"I am horrified by the violent attack on Representative Gabrielle Giffords and many other innocent people by a wicked person who has no sense of justice or compassion. I pray for Gabby and the other victims, and for the repose of the souls of the dead and comfort for their families. I beg our loving Creator to spare the lives of those who are still alive, heal them in body and spirit, and return them to their loved ones.

"Whoever did this; whatever their reason, they are a disgrace to Arizona, this country and the human race, and they deserve and will receive the contempt of all decent people and the strongest punishment of the law."

3:23 p.m. - Surgeon in Tucson says Rep. Giffords is "understanding commands." The bullet exited her head, he said.

3:21 p.m. - Rep. Giffords on election night:

3:14 p.m. - The person arrested in the shooting is Jared Laughner of Arizona, Justice Department officials say.

3:07 p.m. -

3:00 p.m. - A doctor at University Medical Center in Tucson hospital his hospital has 10 patients. One has died. Five are critical. Five are in the operating room. Rep. Giffords is out of surgery. The doctor says he's "very optimistic" about her prognosis. The dead person was a 9 year old child.

2:56 p.m. - U.S. Judge John Roll is reportedly one of those killed. He had recently called for a delay in trials for people accused of felonies because of overworked courts in Arizona.

2:54 p.m. - A spokesman for the sheriff (Pima County) says there will be a news conference at 5 p.m. CT. Death toll remains at 6. Rep. Giffords is in surgery.

2:47 p.m.- This graphic, posted on Sara Palin's PAC website, is being criticized after the shooting as an example of rhetoric that heightened emotions in the fall campaign. There is, as yet, no indication from authorities on a motive for today's attack:

The graphic was controversial during the campaign.

2:43 p.m. - Statement from President Obama:

"This morning, in an unspeakable tragedy, a number of Americans were shot in Tucson, Arizona, at a constituent meeting with Congresswoman Gabrielle Giffords. And while we are continuing to receive information, we know that some have passed away, and that Representative Giffords is gravely wounded.

"We do not yet have all the answers. What we do know is that such a senseless and terrible act of violence has no place in a free society. I ask all Americans to join me and Michelle in keeping Representative Giffords, the victims of this tragedy, and their families in our prayers."

2:37 p.m. - Rep. Giffords posted this image on her Flickr page last fall, while in the middle of a heated campaign with a tea party member.

"Gabrielle Giffords owns a Glock handgun, and as a two-term Democratic congresswoman representing a swing district in Arizona's rugged southeast, she may need one Newsweek quipped in a profile of "gun runners" in the runup to the election of 2008.

2:34 p.m. - Six people are dead. Eighteen people were shot. Congresswoman Gabrielle Giffords is at this point listed as "gravely injured." One person is in custody."

Wisconsin city's police no longer chasing gas scofflaws

Posted at 10:31 AM on December 29, 2010 by Bob Collins (3 Comments)
Filed under: Crime and Justice

Over in Appleton, Wisconsin, the police have decided they'll no longer respond to complaints from gas stations that people have driven off without paying for the gas they just pumped into their vehicle.

In so doing, the police chief gets an entry in just under the wire for the most "interesting" (in a Minnesota way) rationale of the year.

"Oftentimes, when an employee called in a theft of gas, it turned out not to be a theft of anything," Police Chief Derek Beiderwieden told the Post Crescent. "Really, they became civil matters of somebody taking something without paying for it."

You know, like theft.

But the police say most of the drive-offs are people simply forgetting to pay and they've got better things to do than be debt collectors.

It's 264 miles to Appleton, Twin Citians. It's not worth driving there to get free tanks of gas.

Big tobacco case reinstated in Minnesota

Posted at 3:06 PM on December 28, 2010 by Bob Collins (15 Comments)
Filed under: Crime and Justice

The Minnesota Court of Appeals today reinstated portions of a nearly 10-year-old, class action lawsuit against Philip Morris that claims the company fraudulently marketed Marlboro Lights as a safer cigarette.

A U.S. Supreme Court ruling in 2008 cleared the way for class action suits against cigarette companies that manufacture "light" cigarettes. The surprising 5-4 decision paved the way for the state actions. Since then, there have been numerous lawsuits filed around the country with mixed results. Class action suits have been certified in Massachusetts, Minnesota and Missouri. Judges in eight other states have rejected attempts to certify similar classes, according to the Concord (NH) Monitor . A judge in New Hampshire last month certified a similar lawsuit as a class action, in what could be the largest case in that state's history.

In Minnesota, however, the Court of Appeals ruled the suit cannot proceed against Philip Morris' owner, Altria. It said the two are different corporations. However the court reversed an October 2009 district court ruling that threw out the claims that Philip Morris "could not be sued for false advertising, consumer fraud, and deceptive trade practices regarding light cigarettes in violation of Minnesota consumer-protection statutes."

The group filing the suit claims the tobacco company marketed the Marlboro Lights as safer than a typical cigarette. Memos uncovered during the Minnesota tobacco litigation in the '90s revealed the company knew the claim to be false. The memos acknowledged that consumers who smoked "low tar" or "light" cigarettes, took longer "drags" on them, negating any benefit.

The lower court had also ruled that the settlement negotiated between then Attorney General "Skip" Humphrey's office and Philip Morris barred the lawsuit. The Court of Appeals today reversed that ruling.

"The Tobacco Settlement does not provide any remedy for individual consumers who claimed to have been injured by Philip Morris's violation of consumer-protection laws," the court said in rejecting the tobacco company's claims (See the entire opinion)

"Now that this important consumer-protection lawsuit can proceed, I look forward to it going to the trial in the near future," Edward Sweda, the senior attorney for the Tobacco Products Litigation project said.

Cop walks in on robbery

Posted at 1:43 PM on December 20, 2010 by Bob Collins (3 Comments)
Filed under: Crime and Justice

Last week in Dayton, Ohio, a police officer went to a store to get security footage of a robbery that had taken place there earlier in the evening. When he walked in, however, another robbery was underway.

Let's go to the videotape:

Bonus News Cut points if you noticed the following:

-1- It was a long time before anyone bothered to help the cop.

-2- The world's largest man apparently helped subdue the suspect.

-3- It was apparently just another night in Dayton, given the way customers came and went.

-4- What is in the hand of the person in the yellow hat?

-5- A cop's gun to the head doesn't faze the criminals of Dayton, Ohio.

The mystery of the radioactive computer monitor

Posted at 9:17 AM on December 20, 2010 by Bob Collins (2 Comments)
Filed under: Crime and Justice

Newark Airport's Terminal A was closed briefly today when a computer monitor set off whatever alarms are set off when something emitting radiation passes by.

That must have been some computer, because just about everything gives off radiation. By the end of the day, hopefully, somebody will ask why this computer monitor gave off more radiation than any of the other things we use on a daily basis. And after that, the next logical question is who on earth travels with a computer monitor? And who checks a computer monitor for baggage, then flies a different flight? Suspicious activity at the airport? That qualifies.

But back to radiation. Here's a great little Web page from the American Nuclear Society which calculates how much radiation you're exposed to on a daily basis. While Minnesota might be more protected because it's not near the ocean or the plateaus of Colorado, it has its share of coal-fired and nuclear power plants.

Do you live in a stone or brick building? That's 7 millirems (you're allowed about 5,000 millirems a year before it gets serious).

Presumably, today's incident involved a CRT monitor. That's good for about 1 millirem, or an exposure equivalent to two hours of flight time in a jet. If you smoke half a pack of cigarettes a day, that's 18 millirem.

What else has significant radiation in your home? CFL light bulbs, smoke detectors, and even granite countertops according to a fact sheet this year from the Health Physicians Society. Make a note of that. Next time you go to the airport, leave your granite countertop at home.

None of this, however, is particularly comforting. In fact, it serves to point out how insignificant a computer monitor's radiation is. So why was this incident so significant?

Felon loses bid to get his guns back

Posted at 10:25 AM on December 7, 2010 by Bob Collins
Filed under: Crime and Justice

The Minnesota Court of Appeals has upheld the teeth of Minnesota's lifetime ban on felons possessing guns, by ruling a Ramsey County Court was correct in considering whether restoring a felon's gun rights threatens the public's safety.

The court ruled in the case of James Averbeck, who was convicted to third-degree assault in 1991. A lower court had ruled that the public's safety outweighed Averbeck's private interest. The court agreed, although it acknowledged Averbeck met other criteria for having his right to own a gun restored.

He also said not being able to have a gun makes him unable to go hunting with family and friends, and makes it difficult to make a living as a private investigator.

The Court of Appeals, however, said the lower court was correct in considering the possibility that a felon would be a threat to public safety if gun rights were restored.

Here's the full opinion

A song to free the hikers

Posted at 2:54 PM on December 1, 2010 by Bob Collins
Filed under: Crime and Justice

Sarah Shourd, one of the three American hikers arrested by Iran and thrown in prison, has released video of a song she hopes will build support for the two remaining hikers, one of whom is Minnesota native Shane Bauer.

"I wrote 'Piece of Time' when I was in prison," she writes. "The last time I saw Shane and Josh they asked me to use my music to raise support for them and get them out of prison. Every second for the last 2+ months since my release I've been fighting alongside the families and countless others around the world solely for this end. I hope the song and video can bring people closer to our story and give you a glimpse of who Shane, Josh are, why their detention is so completely unjust and why their freedom is so tremendously important to fight for."

There is also a new video documentary on the Web site freethehikers.org.

A dead end in Powderhorn Park

Posted at 1:22 PM on November 30, 2010 by Bob Collins (3 Comments)
Filed under: Crime and Justice

Hennepin County prosecutors today charged a 16 year old boy with the sexual assault of a mother cross-country skiing with her kids in Powderhorn Park in Minneapolis last Wednesday evening. The boy, and others, are also charged with sexually assaulting two girls in a nearby garage later in the evening.

MPR's Brandt Williams is covering the boy's arraignment in court today and will have the story later on today, but while no one has been proven guilty, we wonder nonetheless how a kid grows up to allegedly behave that way.

The top of the charging petition, released by prosecutors, may hold a clue:

Death in a classroom

Posted at 1:02 PM on November 30, 2010 by Bob Collins
Filed under: Crime and Justice

Samuel Hengel died today. He's the 15-year-old who held a Wisconsin classroom hostage yesterday until police stormed the room. He shot himself.

If there's any positive in the aftermath of the tragedy, it may be that a kid bringing a gun to a classroom is still unusual enough to make the news. Everyone seems to be asking the right questions: How did it come to this for a kid? What can be done to keep it from happening to someone else's child.

In other similar incidents, those questions had a somewhat easier answer. The shooter was bullied or teased (as was apparently the case in Cold Spring, Minnesota in 2003), or maybe prescription drugs played a part (as some suggested in the school shootings in Red Lake in 2005)

But six of Hengel's best friends were in the classroom he held at gunpoint yesterday, and none of those friends has any clue what set him off:

The most frightening possibility in the aftermath of the incident is that it didn't happen for any particular reason.

Child abuse story strikes a chord

Posted at 2:54 PM on November 23, 2010 by Bob Collins (2 Comments)
Filed under: Crime and Justice

The fact is, Minnesota has been grossly overreacting to alleged child maltreatment for as long as reliable records are available, which is about a decade.

Year after year, Minnesota takes away children at one of the highest rates in America. Even now, with all the improvement in recent years, (and there has been real improvement) that rate is nearly double the national average and more than double and triple the rate in states that are, relatively speaking, national models for keeping children safe.

As the story itself points out, "70 percent of the cases involve neglect." But definitions of neglect are so broad that any impoverished family can be defined as "neglectful." This confusion of poverty with neglect is the single biggest problem in American child welfare.-- Alexandria, Va.

The Hennepin County study referred to showed that most of the decrease was due to a reduction in referrals from non-mandated reporters, that is from relatives, neighbors, community members rather than physicians, teachers etc. At this point no one has come up with solid information on why this might be. People quoted in the article speculate on reasons such as changed societal attitudes, but there are other viewpoints that were not included. One that I have heard is that poor communities in general and communities of color in particular have become sufficiently distrustful of the child welfare system that they believe children will be better off in almost any situation than if the authorities become involved. There is no solid research on this either, but it would have been better had the story consulted some leaders in these communities to surface any other points of view. -- St. Paul

Crackdown on anti-gay remark earns teacher a suspension

Posted at 1:47 PM on November 16, 2010 by Bob Collins (5 Comments)
Filed under: Crime and Justice, Schools

The limits of free speech vs. the acceptance of gay students is a battle on display in Michigan this week.

The Associated Press reports that a teacher threw a boy out of his class after he said he doesn't accept gays. The school suspended the teacher.

On Oct. 20, McDowell told a student in his classroom to remove a belt buckle with the Confederate Flag, the symbol of the southern confederacy that seceded from the United States over slavery, kicking off the Civil War in the 1860s.

She complied, but it prompted a question from a boy about how the flag differs from the rainbow flag, a symbol of pride for the gay community.

"I explained the difference between the flags, and he said, 'I don't accept gays,''' said McDowell, 42, who was wearing a shirt with an anti-gay bullying message.

McDowell said he told the student he couldn't say that in class.

"And he said, 'Why? I don't accept gays. It's against my religion.' I reiterated that it's not appropriate to say something like that in class,'' McDowell said Monday.

McDowell said he sent the boy out of the room for a one-day class suspension. Another boy asked if he also could leave because he also didn't accept gays.

"The classroom discussion was heading in a direction I didn't want it to head,'' McDowell said.

At a school board meeting in Howell, Michigan last night, 14-year-old Graeme Taylor came to the teacher's defense.

For the record, there doesn't appear to be any evidence to support the student's claim that "6 million gay people kill themselves every year." In the latest year for which statistics are readily available, 34,598 people in the United States killed themselves. They all weren't gay.

Another student said the First Amendment was being improperly used to harbor "hate speech."

The school board said it will create an anti-bullying policy.

How not to get charged with selling meth

Posted at 11:24 AM on November 9, 2010 by Bob Collins
Filed under: Crime and Justice

In Minnesota's Lyon County, police found methamphetamine, a torch, a scale, pipes, plastic baggies, and other paraphernalia in a man's home. Is that enough to charge him with intending to distribute the drug?

The Minnesota Court of Appeals today said it does not, and reversed the conviction of a man.

The case stems from the arrest of Gerald Hanson. Police found "three glass pipes, an attachment for a propane torch, a propane tank, and a number of plastic baggies containing white residue. From the bedroom, they seized a plastic plate with white residue, a plastic bowl, a plastic spoon, and a glass pipe. They also seized numerous plastic baggies and a razor blade that they found in a dresser drawer. From the bathroom, they seized a glass pipe and a bag with 23.6 grams of a white substance."

He was convicted and sentenced to about 8 years in prison largely on the testimony of a member of an interagency gang and drug task force who said the items were all the type of things you'd find used by a drug dealer, even though they could also be used by someone buying drugs for personal use, his lawyer said.

But the Minnesota Court of Appeals today said the circumstantial evidence in cases like this needs to prove an intent to sell drugs beyond a reasonable doubt. It suggested a wad of cash -- not found in the police search of Hanson's home -- might have tipped the scales in the favor of prosecutors. Or "solvents, tools, latex gloves, coffee filters, aluminum foil, packages of Sudafed, lithium batteries, rubber tubing, a blender, thermoses, and fan . . . a mirror, phone cards, and an electronic scale." None was found.

What about the razor blades and baggies. "Plastic baggies and razor blades by themselves do not prove intent to sell," the court said. "They could just as reasonably indicate Hanson's intent to separate drugs that he purchased for himself." It said bags with even amounts of drugs inside might be another story.

The rest of the evidence admitted in the case could easily be explained by an argument that Hanson was merely using meth, not selling it, the court said.

Here's the full opinion of the court.

Are medical students really students if they make money?

Posted at 1:40 PM on November 8, 2010 by Bob Collins (3 Comments)
Filed under: Crime and Justice

It's a Minnesota case that hit the U.S. Supreme Court today. The Mayo Clinic and the University of Minnesota do not want medical students working for them classified as employees because they'd be liable for half the Social Security and Medicare taxes.

An appeals court ruled last year that U.S. tax exception for students was meant only for those who worked part time while attending classes, but not medical residents, who are closer to full-time employees of the teaching hospitals to which they are assigned.

"How do you draw the line between a student who is working and a worker who is studying?" Justice Sonia Sotomayor said today, framing the question the court will have to answer after today's hearing.

The Treasury Department argues, essentially, that if a medical student is working 40 hours in a hospital without having another doctor standing over him/her watching him/her, that's not really a student, and his/her income should be taxed.

Sotomayor did not appear to buy Mayo's argument that the students are learning, thus they are students, not employees.

"Aren't you learning today -- sitting here and watching this -- maybe you are not -- your own argument?" she told Atty. Theodore B. Olson. "Aren't we learning in every case that we're hearing? It's -- it's, in my mind, difficult to separate out what makes a person or stops a person from learning on a job."

Olson joked that the question shouldn't matter to the Court because the justices do not pay Social Security taxes.

"You are not challenging that, are you, Mr. Olson?" Chief Justice John Roberts quipped.

Matthew Roberts, representing the Treasury Department, said if people are working long hours and making $40,000 to $50,000 a year, they ought to pay into a Social Security system which would help them if they were to become disabled on the job.

He offered no opinion on whether the Supreme Court should pay Social Security taxes.

(Here's a transcript of today's arguments.)

The University of Minnesota won a $45 million reimbursement from the federal government in 1998 for taxes paid on students' stipends. After the award, the IRS adopted regulations excluding medical residents from the student exemption.

Meet your judge

Posted at 10:01 PM on November 2, 2010 by Bob Collins (2 Comments)
Filed under: Crime and Justice, Politics

It's unusual to have much interest in judicial district races; nobody who didn't graduate from law school can even name a sitting district court judge in Minnesota.

But in the 10th judicial district, 24 people are trying to get one job. Early in the evening Christopher Penwell was leading. He's the Republican-endorsed candidate.

It's still unusual to see candidates campaigning for judgeships in Minnesota while touting his conservative credentials, as Penwell did. His Web site says he favors "the principles and transcendent truths set forth in the Declaration of Independence including but not limited to the Sanctity of Life, the Rule of Law, Equality and Justice."

At the same time, two high-profile Republican judicial candidates -- Tim Tingelstad and Greg Wersal -- got clobbered in their bids for the state Supreme Court. But the argument over whether Minnesota continues to elect judges is only going to get louder. A commission is pushing to have Minnesota adopt a system where judges are appointed.

Update 10:36 p.m. It appears that Tad Jude has now opened a huge lead. Jude probably has the best name recognition in the area since he ran for Congress in the '90s. Jude also served 16 years in the House and served on the Hennepin County Board. He adopted a more benign campaign against "judicial activism."

Can bullying be stopped?

Posted at 2:32 PM on October 13, 2010 by Bob Collins (8 Comments)
Filed under: Crime and Justice, Politics, Schools

These are the faces of a crisis in the nation's schools.

They're bullies, or at least alleged bullies. They're charged in Massachusetts with bullying Phoebe Prince, a 15-year-old student who hanged herself in January. They did it -- allegedly -- the new fashioned way: Away from school grounds. On Facebook.

A couple of state legislators say they intend to use the special session on flood relief to reintroduce a bill on bullying.

"This emergency is one of our own creation; we can respond," Sen. Scott Dibble said today. "We can change this. We can take those affirmative steps so that every kid who goes to school knows that they are valued, that they'll be safe, that they're loved, that they're going to get an equal shot at a good start in life."

The problem is that the bill doesn't tell schools how to "change this."

Here's what the bill, which Gov. Tim Pawlenty vetoed in 2009, says:

Subd. 2. Harassment, bullying, intimidation, and violence policy. (a) Requires a school board to adopt a written policy, consistent with Minnesota's human rights law and this section, that prohibits harassment, bullying, intimidation, and violence based on characteristics such as race, color, creed, national origin, gender, marital status, disability, socioeconomic status, sexual orientation, gender identity or expression, age, or physical characteristics, or associating with a person having any of these characteristics. Requires the policy to address all forms of harassment, bullying, intimidation, and violence, including electronic and Internet-based forms among other forms. Requires the policy to be posted on the district's Web site. Requires schools to develop a process for discussing the policy and to provide school employees training on responding to harassment, bullying, intimidation, and violence.

The legislation is aimed at toughening anti-bullying legislation the Legislature passed in 2007, which also led to plenty of school districts scratching their heads wondering how?

Here's what I wrote (on the old Minnesota Fantasy Legislature site) at the time:

But that's not the part of the bill that caught my attention. It was this:

The policy shall address intimidation and bullying in all forms, including, but not limited to, electronic forms and forms involving Internet use.

Come again?

I watched the Senate Education Committee testimony on this a week or so ago and while there was some rumblings from the minority party about such things as how a school committee can possibly police the off-school-premises and off-school-hours activities of students, squirreled away in their rooms at home... banging away on the Internet, for the most part the response was "we'll let the school boards figure that out."

The biggest challenge facing anyone who wants to stop bullying (and that's mostly everyone except the bullies) is the technology that shields the bully from the long reach of those who can stop it. Bullying once happened only face-to-face, on school property. Those days are gone forever. There are also significant constitutional questions involved that the Legislature isn't addressing. Until the Legislature can figure that out, it's in a position to do little more than telling someone else to do something about it.

There's also another common theme in bullying incidents that aren't being addressed: Teachers who know about it and do nothing to stop it. That may be a matter for collective bargaining.

In the meantime, the torture continues.

Update 3:54 p.m. -- Colleague Tom Weber reminds me of this excellent discussion on the online aspect of bullying.

Drunk driving dispatches

Posted at 12:18 PM on October 13, 2010 by Bob Collins (1 Comments)
Filed under: Crime and Justice

The mayor of Mankato avoided jail time when he was sentenced for drunk driving today, the Star Tribune reports. Hennepin County District Court Judge Denise Reilly gave Mayor John Brady 60 days' community service instead. He pleaded guilty to the charges. He was arrested in August.

"Most don't come back because they're humiliated, embarrassed and realize just how dangerous their behavior was," the paper quotes Judge Reilly as saying. "I believe you're taking the steps to ensure we never see you again."

If Brady is a typical Minnesota drunk driver, there's a good chance he'll be back.

According to a 2003 study by the Minnesota House of Representatives, half of those arrested for drunk driving, have been arrested before for drunk driving.

More than 200,000 Minnesota drivers have at least two DWIs on their record.

Brady is lucky. He didn't kill anyone. Not so -- allegedly -- for Brady Erickson. Prosecutors today said he had two beers and a shot of liquor hours before driving his car on I-94, slamming into a group of kids changing a flat tire, killing three of them.

Audio: The case for and against picketing soldiers' funerals

Posted at 1:59 PM on October 8, 2010 by Bob Collins
Filed under: Crime and Justice

"If context is ever going to matter, it has to matter in the context of a funeral."

"The words at issue in this case were people from a church delivering a religious viewpoint."