Not Guilty In Minnesota

A Blog To Answer Your Criminal Law Questions

23 Feb 2012

Murder In Blue Earth, But Why No 1st Degree Murder Charge?

Another Southern MN Murder

Brian Freeman

Unfortunately, there is another murder in Southern Minnesota, this time in the small town of Blue Earth. It looks like Brian Freeman (his last name is ironic isn’t it, as he won’t be a free man any longer) murdered Chris Fulmer with a hammer a few days ago. The story is reported by the Mankato Free Press and it claims that Mr. Freeman entered the house of his wife and assaulted the man who was in bed with her at about 12:30 a.m.

The Free Press goes on to say that they have some pretty convincing evidence against Mr. Freeman, including:

  • Confession of the murder.
  • Bloody Clothes, with human blood.
  • Admission of being at the scene.
  • Ski mask in his car.

But the question remains…why is he only charged with second degree murder? Is the prosecutor soft on crime? is there something we don’t know about? Well I don’t know the answer to the last two questions; however I know why he is not charged with 1st degree murder (remember the main difference between 1st and 2nd degree murder is premeditation and with 1st degree you can get life without the possibility of parole). The reason is simple a grand jury is required to indict for 1st degree murder.

Grand Juries are a holdover from a different era. They are controlled by both statute and Minn. Rule of Criminal Procedure 18. They are held in a sealed room, where the 16-23 Jury members sit, the prosecutor, witnesses and a court reporter. As you can imagine with no defense lawyer or the ability to put on a defense the joke is the prosecutor can get a grand jury to indict a banana peel if he wants to. All that is required is a majority feel that there is probable cause to prosecute and the case moves forward.

Check back here as the case progresses for analysis of the indictment and the defenses (there are always defenses to a crime!)

Rosengren Kohlmeyer,
Law Office Chtd
Mankato, Minnesota

Posted by Rosengren Kohlmeyer, Law Office in Murder and tagged , , , , | Leave a Comment
22 Feb 2012

Top 10 Literary Lawyers

Originally published in a Great Criminal Law Blog now republished with permission by Jay Smith.

 

Readers love their characters, and few are as diverse a group as the written lawyer. As some of the most diverse characters in the fictional tradition, the barrister can be a source of good or evil. And who doesn’t love a newcomer with a fresh edge? Major and minor, funny and classic, lawyers occupy a unique space in the charactered universe that requires loose definition to be called an archetype. From legal intrigue to a stalwart moral compass, it’s no wonder that we found 10 literary lawyers that we wish were real.

  1. Atticus Finch

    It’s almost too easy. The perfect character in a perfect book, reading protagonist Atticus Finch makes turning the pages of Harper Lee’s classic,To Kill A Mockingbird, a simple joy. Inspiring readers of all kinds to the legal profession, Atticus’ soft-spoken code of honor and his commitment to justice and client advocacy highlight the noblest attributes of one of civilization’s oldest professions.

    Why He Should Be Real: There’s truth in this: if Atticus Finch were a real working lawyer, the world would be a better place. And most likely he’d be Gregory Peck.

  2. Rudy Baylor

    The protagonist in John Grisham’s best-selling novel The Rainmaker, Rudy Baylor is a young, hungry lawyer that stumbles into his big break. He uncovers an insurance scheme to deny client claims, nails the company, and his plantiffs win more than $50 million dollars. Due to other complications in a romantic/legal subplot, Baylor becomes disillusioned with the law and vows to become a teacher in the end.

    Why He Should Be Real: Baylor proves that courage, smarts, and gumption can win you big court cases against the bad guys. Also, he’d be Matt Damon, and he’d probably be one hell of a teacher.

  3. Perry Mason

    Written by former California lawyer Erle Stanley Gardner, Perry Mason’s character was developed and featured in more than 80 books and short stories. Mason is a great (if not a bit personally mysterious) lawyer who acts mostly ethically, and basically uses his lawyering business to play private detective. Then the second half of every book is a drawn-out, well penned, often revealing courtroom scene. Gardner remains one of the best-selling authors of all time.

    Why He Should Be Real: For sheer volume alone, Perry Mason should be a real person. He’d probably be a pundit on lots of legal TV shows, and would have bazillions of real-world examples for why he’s right about everything. For starters, he could have Nancy Grace’s spot in the public eye. And, he’d be Raymond Burr.

  4. Portia as Balthazar

    In the poetic Shakespearean play The Merchant of Venice, Portia enters the trial disguised as the young lawyer Balthazar, and begs that Shylock show mercy on the merchant. She appeals to a higher law, and is praised by Shylock and compared to the Biblical judge, Daniel. She systematically takes Shylock and the Merchant through their case, each time begging for Shylock’s mercy — even though the law is on his side.

    Why She Should Be Real: Because it would be hilarious to watch any Shakespearean character come to life in 2012. Would she tweet at Shylock under a masculine handle? Would the British court rule that Shylock could indeed demand a pound of flesh — no more, no less — under penalty of death? Couldn’t the merchant just pay him back in iTunes? Also, she’d be Lynn Collins.

  5. Joel Litvinoff

    In Zoe Heller’s novel The Believers, Joel Litvinoff is a bit mythologized; he lies unconscious for almost the whole of the book. Yet, he is a firecracker lawyer, often taking provocative and political cases.

    Why He Should Be Real: Maybe he already is. The New York Times described Litvinoff as a “William Kunstler” type, the controversial lawyer who represented the Chicago Seven and served on the board of the ACLU.

  6. Horace Rumpole

    When a barrister writes a barrister, everything goes right. Originally a character in his Play for Today, British lawyer and writer John Mortimer created Horace Rumpole in his Rumpole of the Bailey TV series, but the spin-off novels also written by Mortimer have remained popular among readers around the world.

    Why He Should Be Real: He takes a lot of pro bono cases, and gives his friends historical and literary nicknames. A peculiar character and surely a lover of the lost cause, Rumpole would be a funny, if not Quixotic figure in the modern legal system. He would look exactly like Leo McKern.

  7. The Man of Law

    In Chaucer’s well-loved classic, The Canterbury Tales, The Man of Law (also known as The Sergeant of Law) passionately and snobbishly defends the princess Custance in a rhetoric oration full of hot air.

    Why He Should Be Real: Again, for the humor. Who doesn’t want to run up in court against someone who only speaks in overtly flowery Middle English?

  8. Wallace Stevens

    One of the only examples of artistic brilliance that has onset late in life, Wallace Stevens was a lawyer in New York before he was a poet. He focused on universal and philosophical meditations, as well as how to comprehend the world in its state of infinite flux.

    Why He Should Be Real: He is, but he’s also a lawyer turned poet — almost unreal in today’s get-up-and-go business world. This is romantic and sweet, and suggests that Stevens was of an ethereal spirit.

  9. Henry Drummond

    The agnostic lawyer of the infamous play Inherit the Wind, both the lawyer characters of Matthew Harrison Brady and Drummond truly belong on this list. But Drummond gets extra points for answering to a higher calling, and valuing truth over what is considered decent or right.

    Why He Should Be Real: Based on real-life skeptic, wit, and ACLU lawyer Clarence Darrow, Henry Drummond brings a necessary flare to the courtroom. Additionally, his reliance on logic and rational thought would be a welcome contrast from the shock trials of today. Also, he would be Spencer Tracy.

  10. Jake Brigance

    Of course John Grisham makes the list twice. In a neo-Atticus Finch-like character, Jake Brigance is also a white lawyer representing an African-American client in a tiny Southern town. He is the subject of racially targeted violence, is shot at, and is largely unpopular during his controversial trial.

    Why He Should Be Real: His charged cross-examination of the state doctor testifying against his client’s claim of temporary insanity just plain rules. Who else can get someone to scream, “You just can’t trust juries!” His closing argument is the stuff of legal legend. Also, he’d bear a striking resemblance to Matthew McConaughey.

Posted by Rosengren Kohlmeyer, Law Office in Uncategorized and tagged , , | Leave a Comment
16 Feb 2012

Minnesota’s Juvenile Court System

Minnesota’s Juvenile Courts

MN Juvenile Crimes
Juvenile 

Delinquent

Most people probably have a general idea that there are separate Minnesota courts for children who are charged with committing a crime.  But what exactly do juvenile courts do, and when could one be involved if your child is charged with a crime?

First, let’s get some terminology straight.  “Jurisdiction” means the power, or authority, or a court to hear a case.  The court that usually has jurisdiction over criminal prosecution of adults is called the district court.  A juvenile court, in this context, is the alternative to the district court.

Juvenile courts generally have jurisdiction over cases where a child is alleged to be delinquent.  While “delinquent” may sound like the child failed to turn in some homework, the word covers a wide range of wrongdoing.  It is essentially any violation of federal, state, or local law.  A few things are not considered delinquency—minor traffic offenses and some misdemeanors if the child has not previously been found to have committed a misdemeanor.

Finding that a child is delinquent means that the court has found that the child violated a law.  The effect of that finding is not the same as finding an adult guilty of a crime, though.  Possibly the most important difference is the individualized focus of the juvenile court’s determination of the consequences for the child if he is found to be delinquent.  The court will work to determine the individual needs of the child and can use its discretion to come up with what the appropriate sentence.  This can range from a warning, a restriction on contact with the victim of the crime, probation, chemical dependency treatment, or, in extreme cases, a determination that the child should be placed out of his home.

Who qualifies as a child?  In general, it’s anyone under 18.  If the person was under 18 at the time the crime was committed and is currently under 19, that is also considered a juvenile court issue.  Juvenile court jurisdiction can even extend up to age 21 if the child has already been found to be delinquent but later fails to appear, runs away, or similar.  Minnesota law doesn’t specify a minimum age that a child needs to reach before he or she can be found to be delinquent in juvenile court, but the child’s attorney can always argue that the child is incompetent or too young to have been capable of forming any intent to commit the crime.

More serious offenses can take jurisdiction away from the juvenile court.  If the child is 16 years of age or older and is charged with first-degree murder, the district court, not the juvenile court, has jurisdiction over the case.  The district court also will have jurisdiction over sentencing for any other crimes that the child is charged with that arose out of the same incident.

Any questions feel free to either post them here or send me an email at Thagen@rokolaw.com

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

Posted by Rosengren Kohlmeyer, Law Office in Juvenile Crimes and tagged , , | Leave a Comment
13 Feb 2012

What happens if I plead guilty to a crime in Minnesota?

Alford Plea MN

Guilty.

What happens if I plead guilty to a crime in Minnesota?

If you have been charged with a crime, you might already know that you have a few options for how to plead, or respond, to the charge.  It’s important that you talk with a lawyer about the different plea options and which one is best for your situation.  But, here’s an overview of what each of the pleas mean and what the consequences of them are.  Keep in mind that this is not an exhaustive list of the consequences, only a starting point for you to get a general idea of them.

First, of course, you can plead not guilty.  If you plead not guilty, your case will proceed to trial, either before a jury or a judge.  If you are convicted, you will be able to appeal either the conviction or the sentence you received.

Second, in some cases, you can enter what is commonly called an Alford plea.  You might also know of this plea as a “no contest” plea.  Essentially, you are saying that you have reviewed the evidence against you and you acknowledge that a jury could convict you based on that evidence, but you still maintain your innocence.  However, this is nevertheless a guilty plea and comes with the same consequences described below for guilty pleas.

A guilty plea admits all the elements of the crime, as charged by the State.  Possibly the most important consequence of a guilty plea is that it waives several of your rights.  These include the right to a trial and the right to appeal any rulings the court might have made prior to entry of your plea, such as whether evidence is admissible.  When you enter a guilty plea, it may be part of a plea bargain in which you and the State have a firm agreement on the sentence you will receive.  If the court rejects that sentence, you will be entitled to withdraw your guilty plea.  However, if the State merely makes a recommendation as to your sentence as part of a plea agreement, the court is not required to accept that recommendation, and it is not required to allow you to withdraw your plea if the recommendation is not accepted.

You can still appeal certain issues following entry of a guilty plea.  For instance, you can argue that your guilty plea was not made knowingly, in the sense that you were not appropriately advised of the meaning and consequences of the plea, or that your plea was the result of coercion by the prosecutor.  Additionally, even though you can’t directly appeal issues regarding the determination of your guilt, you can bring what is called a petition for post-conviction relief and argue that your attorney was deficient in advising you about the entry of a guilty plea.

What happens if you have made a guilty plea but changed your mind?  After you plead guilty but before a sentence is imposed, the court has discretion to determine whether it will let you withdraw your plea or not, although it can only let you withdraw the plea if it is fair and just to do so.  That means that you can’t withdraw a guilty plea just for the purpose of, for example, delaying a conviction.  On the other hand, the court MUST allow you to withdraw your guilty plea, even after a sentence has been imposed, if you can show that withdrawal of the plea is necessary to correct a manifest injustice.  This “manifest injustice” is usually based on an argument that the plea was based on an incorrect factual basis or that it was entered without an understanding of the consequences.  It is a difficult standard to meet, so don’t plan on being able to withdraw your plea in this way.

The most important lesson here is that which plea you enter can have important consequences.  Discuss the options thoroughly with your attorney before making a plea.

Any comments or questions please feel free to post a comment or send an email to Thagen@RoKoLaw.com
Rosengren Kohlmeyer, Law Office
Mankato, Minnesota
507-625-5000

www.Rokolaw.com

Posted by Rosengren Kohlmeyer, Law Office in Plea Bargain and tagged , , , , | Leave a Comment
30 Jan 2012

Check Tom Hagen on MN DWI Basics on Youtube.

Mankato DWI Law

Posted by Rosengren Kohlmeyer, Law Office in Drivers License Questions, DWI, DWI Basics, Minnesota DWI and tagged , , , , | Leave a Comment

Post Navigation

← Older Entries
Follow

Get every new post delivered to your Inbox.