Thursday, October 31, 2013

How did you know that?

As a First District Court judge chambered in Sibley County, I have often been assigned to other courthouses when there is no court in Gaylord.  For the first 15 years or so of my judicial career, I averaged three different courthouses every week!  So, I had a lot of time to catch up on news and music while traveling to different courthouses many mornings a week! 

One Monday morning, I was driving to court at Glencoe, in McLeod County, listening to The Morning Show on Public Radio (I still haven’t forgiven MPR for taking that show off the air!), when one of the hosts announced a request:  A person named “Jim” had called in, saying he was driving to Court in Glencoe and asking for a song dedicated to him. 

The host, Jim Ed Poole, said, “Boy, he must have done something really bad if he has to drive all the way to Glencoe to go to Court.”  He went on to say that “Jim” was a musician – a drummer – and played an old Rock’n’Roll song for him:  “Tell it to the Judge”.

As was typical in those days, I didn’t know which of the two calendars I would be hearing in Glencoe that day.  I said to myself, “Please, let me have the arraignment calendar in McLeod today!

It turned out that I did.  I scanned the list of persons who were scheduled to appear before me, and found that there were two men named James on the list.  The very last person called that morning was Jim.

He had been charged with two misdemeanors, if a recall correctly:  underage consumption of alcohol and possession of a small amount of marijuana.  He pled guilty to both and I must confess, I gave him a little break on the fines.

I then said, “I’ll bet you’re a musician, aren’t you?”

“How did you know that?”

“And, I’ll be you play the drums.”

“How did you know that???”

“And, I’ll be you made a request on Public Radio this morning….”

“Ah!  That’s how you know that!”

I gave him a few more parting words about staying out of trouble, and sent him out to pay his fines.  I hope that’s the last time he had to appear in court! 

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Next week:  Sorry Doesn’t Make It Better

Thursday, October 24, 2013


When a defendant appears for sentencing, one of the factors that a judge must consider is whether a victim has suffered financial damage as the result of the crime, and order the defendant to pay that amount back as restitution.

Some cases are easy:  The defendant shoplifts from a retailer and the property is not recovered.  The restitution is price tag for the item stolen.

Other times, it’s not so easy.  A drunk driver totals a victim’s older car and only means of transportation.  One might think that the cost of a replacement vehicle would be the proper measure of restitution.  However, the law in Minnesota provides that it is the fair market value of the property that is the proper figure for restitution.  So a replacement vehicle may run $2000, but the fair value of the wrecked car, before the accident, was only $1000.  I am required to award only the $1000.

In some cases, the cost of repair is the measure of damages.  A burglar breaks into a house and damages the door.  The cost to repair the door (and other damages caused by the break-in) is the proper measure of damages.

Sometimes, the damages are so high that there is no way the defendant could ever repay them.  One case in particular comes to mind:  after a night of partying, three young men thought it would be great fun to turn the valves at the natural gas pipeline supplying the city.  The gas was turned off, and so were the furnaces, dryers and stoves throughout the city.  Homes and businesses were pretty much shut down until the gas company first turned off all appliances in the homes and businesses, then turned on the gas to the city and finally went to each home and business in the city to relight pilot lights and be sure that the appliances were working properly and safely.

The gas company alone had damages in the hundreds of thousands of dollars.  Plus, there were claims from manufacturing companies in the city who could not open that day because there was no heat to their facilities.

The defendants were ultimately found, charged and pled guilty to the charge of Criminal Damage to Property.  They were placed on probation for five years each and each was required to pay $100 per month for each month they were on probation to be applied to the restitution claim.  Quite a cost for a night of partying.

Restitution is only an amount required to be paid as a part of the criminal probation terms.  This does not preclude any victim from suing the defendant in civil court for any and all damages that they can prove were caused by the defendant.  Of course, the defendant cannot be required to pay twice for the same damage. 

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Next week:  How Did You KNOW That?

Thursday, October 17, 2013

Be Careful What You Ask For

All criminal defendants have the right to a speedy trial, guaranteed by the United States Constitution.  This means that if a Defendant makes that demand, his trial must be held within 60 days (with some exceptions).  I had one defendant who gave this phrase an entirely different meaning.

I was presiding at the call of the jury calendar.  There were perhaps 15 criminal cases set on for jury trial this particular day.  One case I called was a man representing himself on a charge of Driving After Revocation (DAR).  As he came to the attorney’s table, he took a small American flag and desk flag base out of his bag and set it on the table.  He then proceeded to explain to me that he was not guilty of DAR, that he was traveling, not driving, and that traveling is a right guaranteed by the United States Constitution. 

I told the gentleman that there was one other case, a fellow who was in jail, that would be the only trial to go ahead of his, and I wouldn’t know if that case had resolved until after lunch.  Why didn’t he just have lunch, come back at 1:00 and we’d see if we could get his trial in that day.  The Defendant said, “I want to demand my right to a speedy trial.”  He would come back at 1:00 and I’d try to accommodate. 

At the break, I found that he had been in court on a similar charge just a few weeks before.  The judge then worked out a plea arrangement and, before the Defendant left his courtroom, told him, “I’m not going to ask how you got to court today, but I want you to know that there are some very suspicious people who work here.  I STRONGLY admonish you:  Do NOT drive away from the courthouse.”  Well, of course he did, which was the case I was trying that day.

After lunch, the other case settled and at about 1:45, we started picking a jury for this DAR trial.  By 4:15, the defendant was on his way to jail to begin serving a 30-day sentence, having been tried before and convicted by a jury of his peers.

This Defendant had demanded a speedy trial.  He was able to get just what he asked for!

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Next week:  Restitution

Thursday, October 10, 2013

Addressing Domestic Violence Issues

In 1995, when I was asked to be a part of a delegation from Minnesota to the national Violence Against Women Conference, there was some discussion of whether it was appropriate for judges to participate in a conference or organization that was focused on the victims of domestic abuse.  After all, we are called upon to preside and decide cases of domestic abuse, both criminal and civil.  Wouldn’t we be perceived as favoring one side over the other if we attended/supported education efforts to reduce domestic violence?

The Chief Justice of the Minnesota Supreme Court issued an Order that it was not only permissible to participate in such groups, but it was encouraged. 

After all, there is no judge anywhere that is in favor of crime.  Yet, each one of use must make decisions about persons charged with crimes dozens of times each week. 

A person, and a judge, can be against crime or domestic abuse in general, but must be able to look at each individual situation to determine whether the charge has been proved or whether the criteria for issuing a domestic abuse order for protection have been demonstrated.  If so, a guilty verdict is rendered or an order for protection is issued.  If not, the charges or the petition must be dismissed.

I have dismissed petitions for orders for protection where the petitioner is obviously and with good reason, terrified of the alleged abuser because one of the requirements of the statute has not been proved.  As much as I feel for the alleged victim, and as much as I wish I could grant the order she (usually, but not always a she) has requested, I simply cannot under the law I have sworn to uphold. 

I continue to participate in our county’s bi-monthly meetings on addressing the serious and pressing issues of domestic violence.  We have worked together to streamline and standardize the procedures in handling these cases, from investigation through trial and after. 

I know the actions of this group of law enforcement, prosecutors, defense attorneys, probation and social workers has made our county safer for victims of domestic abuse.  I also know we have much more work to do.

And I guarantee that the State or the Petitioner in such actions must prove their case before I will issue a guilty verdict or order for protection.

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Next Week:  Be Careful What You Ask For

Thursday, October 3, 2013

The War on Terror

It may be surprising to hear, but as a country judge, I am on the frontline of the War on Terror on a weekly basis.  No, I don’t have Al Quaida or the Taliban in my courtroom.  I have (usually) men who are alleged to have committed acts of domestic violence against the people they are supposed to love and protect the most in this world.

I attended a speech by a police officer who grew up in a home where his step-father routinely beat his mother.  He and his brother would cower in their rooms, praying that the horror would end.  He is the first person I heard describe living in a home where domestic violence occurred as living with a terrorist.

That is an apt description.  Studies on domestic violence show that the abuser will isolate the victim (usually his wife or his girlfriend) and exert control over their every act.  Jealousy can be a huge part of the domestic violence cycle.  Alcohol or other drugs can be a catalyst, though not a cause, to the violence.

Early in my judicial career, I was chosen to represent the First Judicial District at a statewide conference on domestic violence.  Later, the Chief Justice asked me to represent Minnesota at a national conference in New Mexico.  I had the privilege of being part of the rollout of the Domestic Abuse Order for Protection database, which allowed police officers to confirm the existence and particulars of outstanding orders.  Prior to this system, it was often difficult to know just what the Order provided if the courthouse was closed and the order unavailable.

Fairly often, the Petitioner (usually the wife or girlfriend) will come in within months, or even weeks (sometimes, hours), of the Order for Protection and ask that the Order be dismissed.  I will often require that the Petitioner appear in Court so that I can be sure that she understands that the Order was issued for her protection and safety.  I will often ask if she has made contact with the domestic abuse advocate and whether she has a safety plan in place.  And, I will ask for her promise that, if any time in the future she feels unsafe, she will take steps to insure her safety, which may mean asking for another Order for Protection.

This week, I’ve been invited to moderate a presentation on domestic abuse for court personnel, attorneys, judges and advocates for the First Judicial District.  It is an honor to be involved in a program to make our state a little safer for victims of domestic abuse.

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Next week:  Addressing Domestic Abuse Issues