Often times people do not apply the Miranda warning properly in their discussions. Some believe that Miranda warnings must be read before law enforcement may arrest you. This is not the case. Miranda only applies to in custody statements. If you are in custody and law enforcement questions you without first reading Miranda, your statement may then be thrown out. However, if there is enough other evidence to suspect you of the crime, the arrest will still stand.
There has often been the question, what happens if I remain silent, or do not answer an investigators letter or questions before I am arrested? May the prosecutor use that silence to imply my guilt? While the Defense bar was adamant that the Constitution protects a person's Right to remain silent at any time, Prosecution often argued that since Miranda only applies to statements while in custody, you do not have the Right to remain silent before an arrest.
The Minnesota Court of Appeals just clarified that the Constitution does protect your right to remain silent at all times, not just when you are actually arrested. Both the Minnesota and United States'Constitution guarantees a criminal defendant the right to remain silent. US Const. Amend. V; Mn const. art. I sec. 7. Admitting evidence of defendant’s silence could deprive the defendant of a fair trial. State vs. Borg (Minn. Ct. App.), A09-0243, March 15, 2010.
It is possible that the silence may be used for impeachment purposes. However, the silence may not be used in the State's case in chief. If you are accused of a crime, you will want a lawyer to walk you through when your statements, and or silence, may be used against you and when those same may not.
For a free consultation with an experienced lawyer that will aggressively represent you, contact:
Patrick Flanagan
763-786-5324
651-291-5453
email:patflanagan@patflanagandefense.com
www.patflanagandefense.com
Tuesday, April 13, 2010
Thursday, April 8, 2010
Out of State Convictions
Out of state convictions are very important. Out of state convictions will be counted against you in both State court and Federal court. This includes such convictions as DWI, DUI, or BUI (boating under the influence). You must be aware of your out of state convictions and make sure your attorney is also aware of what are your convictions and what are not. Sometimes the State may attribute crimes to you that are not your convictions.
Recently, I had a client that with his previous lawyer, went to prison when he never should have. Thankfully, we were able to correct the error avoid him having to serve more prison time.
My client's troubles all started with his previous attorney not reviewing and investigating the criminal history. In Minnesota a sentencing guideline grid is used. Along the left side of this grid are ranked offenses. Murder in the first degree is not included in this grid as that carries a life sentence without parole. The rankings start with the low level felonies such as the sale of a simulated controlled substance (level 1) all the way up to level XI (Murder 2nd degree). Along the top of the grid are your criminal history points, 0 - 6 or more. Depending upon the crime and your criminal history score, you may do local jail time if convicted, or prison time. Obviously, a lower criminal history score means less jail or prison time to serve.
My client had convictions from Cook County, Chicago, Illinois. The State of Minnesota relies upon information from other States to determine criminal history scores. This usually works well, as long as the counties and cities within the states maintain the same recording system. Unfortunately, that is not the case for Cook County and the State of Illinois. Cook County and the State of Illinois do not keep the same records, nor do these to governmental agencies record convictions the same way. The State of Illinois relies upon booking numbers for convictions. Cook County does not. Book numbers do not mean much in Cook County apparently. Cook County will book several people under the same booking number. If a group of people are arrested, they all get the same booking number in Cook County.
Well, one day my client was arrested for loitering with a group of people. Cook County gave them all the same booking number. One of the people in the group was then investigated and convicted of murder. The State of Illinois assigned everyone in the group a murder conviction because the State relied upon the booking number to determine who should receive the conviction. My client was assigned 2 criminal history points without even knowing it.
My client then moved to Minnesota. While in Minnesota he was arrested and convicted of a theft charge. This was a low level theft, a level two. In order to serve prison time, he would need to have a criminal history score of six. According to his records, he had a criminal history score of 7. That meant he should go to prison. He did go to prison and sat there for two years.
When I got involved with my client case, I went through his criminal history score with him. I came across the murder conviction in Illinois that said he served prison time for. My client insisted he never committed murder, was never convicted of murder and never spent time in an Illinois prison. As I investigate the matter, I found out what I described above. The next step was to clear up his criminal history score recorded in Minnesota. This is not an easy task. Once you agree to a criminal history score and do not challenge it, the score becomes the score. My client's former attorney did not challenge the criminal history score, but simply accepted the number the government said was accurate.
In the end, we were able to make sure my client did not serve more prison time. Unfortunately, he had to sit for two years to correct the mistake.
It is important that you discuss all aspects of your case with your attorney and that your attorney listens to you and educates you on your case. If you are in need of a free consultation, call Patrick Flanagan.
763-786-5324
651-291-5453
email: patflanagan@patflanagandefense.com
www.patflanagandefense.com
Recently, I had a client that with his previous lawyer, went to prison when he never should have. Thankfully, we were able to correct the error avoid him having to serve more prison time.
My client's troubles all started with his previous attorney not reviewing and investigating the criminal history. In Minnesota a sentencing guideline grid is used. Along the left side of this grid are ranked offenses. Murder in the first degree is not included in this grid as that carries a life sentence without parole. The rankings start with the low level felonies such as the sale of a simulated controlled substance (level 1) all the way up to level XI (Murder 2nd degree). Along the top of the grid are your criminal history points, 0 - 6 or more. Depending upon the crime and your criminal history score, you may do local jail time if convicted, or prison time. Obviously, a lower criminal history score means less jail or prison time to serve.
My client had convictions from Cook County, Chicago, Illinois. The State of Minnesota relies upon information from other States to determine criminal history scores. This usually works well, as long as the counties and cities within the states maintain the same recording system. Unfortunately, that is not the case for Cook County and the State of Illinois. Cook County and the State of Illinois do not keep the same records, nor do these to governmental agencies record convictions the same way. The State of Illinois relies upon booking numbers for convictions. Cook County does not. Book numbers do not mean much in Cook County apparently. Cook County will book several people under the same booking number. If a group of people are arrested, they all get the same booking number in Cook County.
Well, one day my client was arrested for loitering with a group of people. Cook County gave them all the same booking number. One of the people in the group was then investigated and convicted of murder. The State of Illinois assigned everyone in the group a murder conviction because the State relied upon the booking number to determine who should receive the conviction. My client was assigned 2 criminal history points without even knowing it.
My client then moved to Minnesota. While in Minnesota he was arrested and convicted of a theft charge. This was a low level theft, a level two. In order to serve prison time, he would need to have a criminal history score of six. According to his records, he had a criminal history score of 7. That meant he should go to prison. He did go to prison and sat there for two years.
When I got involved with my client case, I went through his criminal history score with him. I came across the murder conviction in Illinois that said he served prison time for. My client insisted he never committed murder, was never convicted of murder and never spent time in an Illinois prison. As I investigate the matter, I found out what I described above. The next step was to clear up his criminal history score recorded in Minnesota. This is not an easy task. Once you agree to a criminal history score and do not challenge it, the score becomes the score. My client's former attorney did not challenge the criminal history score, but simply accepted the number the government said was accurate.
In the end, we were able to make sure my client did not serve more prison time. Unfortunately, he had to sit for two years to correct the mistake.
It is important that you discuss all aspects of your case with your attorney and that your attorney listens to you and educates you on your case. If you are in need of a free consultation, call Patrick Flanagan.
763-786-5324
651-291-5453
email: patflanagan@patflanagandefense.com
www.patflanagandefense.com
Wednesday, April 7, 2010
Federal Sentencing
Sentencing in the Federal Courts is very different from State Court. In Federal Court, if convicted, you receive a level for your offense committed. That level may be a level 34 for instance. If you accept responsibility for your actions, the Court will often grant a two or three level decrease to a level 31. This may save you a significant amount of time in prison. However, there are also ways that you can increase your levels, for instance, lying to the Court.
There are other ways levels can increase or decrease. If your criminal history shows a State conviction for Illegal use of a motor vehicle, you may receive an increase in your levels because of a crime of violence. However, tampering with a motor vehicle is not considered a crime of violence. This will often depend upon how the State defined the crime you may have been convicted of in State Court. Sometimes, the District Court may consider an act a crime of violence when really the act should not be.
In United States v. Kobyashi Jones, No. 06-2901 (E.D. Mo) (Unpublished)
Mr. Jones pleaded guilty to being a felon in possession and was sentenced
to 180 months based on the armed career criminal statute. One of his
priors was for the Missouri offense of Tampering (operating a vehicle
without owner's consent). Upon review by the 8th Circuit Court of Appeals, the Court held that Tampering with a motor vehicle under Missouri law does not constitute a crime of violence. The sentence was vacated and remanded for a new sentence without considering a the level increase for a crime of violence criminal history.
This is an example why you must retain a lawyer to assist you in your criminal matters. Your lawyer's work does not end at the conviction. Sentencing is also an important part to have your attorney at. If you find yourself in need of a lawyer, call Patrick Flanagan for a free consultation.
763-785-5324
651-291-5453
email: Patflanagan@patflanagandefense.com
www.patflanagandefense.com
There are other ways levels can increase or decrease. If your criminal history shows a State conviction for Illegal use of a motor vehicle, you may receive an increase in your levels because of a crime of violence. However, tampering with a motor vehicle is not considered a crime of violence. This will often depend upon how the State defined the crime you may have been convicted of in State Court. Sometimes, the District Court may consider an act a crime of violence when really the act should not be.
In United States v. Kobyashi Jones, No. 06-2901 (E.D. Mo) (Unpublished)
Mr. Jones pleaded guilty to being a felon in possession and was sentenced
to 180 months based on the armed career criminal statute. One of his
priors was for the Missouri offense of Tampering (operating a vehicle
without owner's consent). Upon review by the 8th Circuit Court of Appeals, the Court held that Tampering with a motor vehicle under Missouri law does not constitute a crime of violence. The sentence was vacated and remanded for a new sentence without considering a the level increase for a crime of violence criminal history.
This is an example why you must retain a lawyer to assist you in your criminal matters. Your lawyer's work does not end at the conviction. Sentencing is also an important part to have your attorney at. If you find yourself in need of a lawyer, call Patrick Flanagan for a free consultation.
763-785-5324
651-291-5453
email: Patflanagan@patflanagandefense.com
www.patflanagandefense.com
Tuesday, April 6, 2010
Innocent man executed
Recently an innocent man was executed in the State of Texas. Mr. Todd Willingham was executed after a jury found him guilty of arson that resulted in the deaths of his three children. The government's expert testified that the fire was definitely arson. The Defense attorney accepted this conclusion, as did the jury. This case highlights why it is important to have a competent attorney review your case and consider all facets. For a free consultation from a competent attorney that will assist you in your legal situation, contact Patrick Flanagan at
763-786-5324
651-291-5453
Email: patflanagan@patflanagandefense.com
www.patflanagandefense.com
The article can be found at the Chicago Tribune's website, or the following link: http://www.chicagotribune.com/news/chi-tc-nw-texas-execute-0824-082aug25,0,5812073.story
Cameron Todd Willingham case: Expert says fire for which father was executed was not arson
August 25, 2009|By Steve Mills, Tribune Newspapers
In a withering critique, a nationally known fire scientist has told a state commission on forensics that Texas fire investigators had no basis to rule a deadly house fire was an arson -- a finding that led to the murder conviction and execution of Cameron Todd Willingham.
The finding comes in the first state-sanctioned review of an execution in Texas, home to the country's busiest death chamber. If the commission reaches the same conclusion, it could lead to the first-ever declaration by an official state body that an inmate was wrongly executed.
Indeed, the report concludes there was no evidence to determine that the December 1991 fire was even set, and it leaves open the possibility the blaze that killed three children was an accident and there was no crime at all -- the same findings found in a Chicago Tribune investigation of the case published in December 2004.
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Willingham, the father of those children, was executed in February 2004. He protested his innocence to the end.
The Tribune obtained a copy of the review by Craig Beyler, of Hughes Associates Inc., which was conducted for the Texas Forensic Science Commission, created to investigate allegations of forensic error and misconduct. The re-examination of the Willingham case comes as many forensic disciplines face scrutiny for playing a role in wrongful convictions that have been exposed by DNA and other scientific advances.
Among Beyler's key findings: that investigators failed to examine all of the electrical outlets and appliances in the Willinghams' house in the small Texas town of Corsicana, did not consider other potential causes for the fire, came to conclusions that contradicted witnesses at the scene, and wrongly concluded Willingham's injuries could not have been caused as he said they were.
The state fire marshal on the case, Beyler concluded in his report, had "limited understanding" of fire science. The fire marshal "seems to be wholly without any realistic understanding of fires and how fire injuries are created," he wrote.
The marshal's findings, he added, "are nothing more than a collection of personal beliefs that have nothing to do with science-based fire investigation."
Over the past five years, the Willingham case has been reviewed by nine of the nation's top fire scientists -- first for the Tribune, then for the Innocence Project, and now for the commission. All concluded that the original investigators relied on outdated theories and folklore to justify the determination of arson.
The only other evidence of significance against Willingham was another inmate who testified that Willingham had confessed to him. Jailhouse snitches are viewed with skepticism in the justice system, so much so that some jurisdictions have restrictions against their use.
Samuel Bassett, an attorney who is the chairman of the commission, said the panel will seek a response from the state fire marshal and then write its own report.
Contacted Monday, one of Willingham's cousins said she was pleased with the report but was skeptical that state officials would acknowledge Willingham's innocence.
"They are definitely going to have to respond to it," said Pat Cox. "But it's difficult for me to believe that the State of Texas or the governor will take responsibility and admit they did in fact wrongfully execute Todd. They'll dance around it."
763-786-5324
651-291-5453
Email: patflanagan@patflanagandefense.com
www.patflanagandefense.com
The article can be found at the Chicago Tribune's website, or the following link: http://www.chicagotribune.com/news/chi-tc-nw-texas-execute-0824-082aug25,0,5812073.story
Cameron Todd Willingham case: Expert says fire for which father was executed was not arson
August 25, 2009|By Steve Mills, Tribune Newspapers
In a withering critique, a nationally known fire scientist has told a state commission on forensics that Texas fire investigators had no basis to rule a deadly house fire was an arson -- a finding that led to the murder conviction and execution of Cameron Todd Willingham.
The finding comes in the first state-sanctioned review of an execution in Texas, home to the country's busiest death chamber. If the commission reaches the same conclusion, it could lead to the first-ever declaration by an official state body that an inmate was wrongly executed.
Indeed, the report concludes there was no evidence to determine that the December 1991 fire was even set, and it leaves open the possibility the blaze that killed three children was an accident and there was no crime at all -- the same findings found in a Chicago Tribune investigation of the case published in December 2004.
Ads by Google
Advertisement
Willingham, the father of those children, was executed in February 2004. He protested his innocence to the end.
The Tribune obtained a copy of the review by Craig Beyler, of Hughes Associates Inc., which was conducted for the Texas Forensic Science Commission, created to investigate allegations of forensic error and misconduct. The re-examination of the Willingham case comes as many forensic disciplines face scrutiny for playing a role in wrongful convictions that have been exposed by DNA and other scientific advances.
Among Beyler's key findings: that investigators failed to examine all of the electrical outlets and appliances in the Willinghams' house in the small Texas town of Corsicana, did not consider other potential causes for the fire, came to conclusions that contradicted witnesses at the scene, and wrongly concluded Willingham's injuries could not have been caused as he said they were.
The state fire marshal on the case, Beyler concluded in his report, had "limited understanding" of fire science. The fire marshal "seems to be wholly without any realistic understanding of fires and how fire injuries are created," he wrote.
The marshal's findings, he added, "are nothing more than a collection of personal beliefs that have nothing to do with science-based fire investigation."
Over the past five years, the Willingham case has been reviewed by nine of the nation's top fire scientists -- first for the Tribune, then for the Innocence Project, and now for the commission. All concluded that the original investigators relied on outdated theories and folklore to justify the determination of arson.
The only other evidence of significance against Willingham was another inmate who testified that Willingham had confessed to him. Jailhouse snitches are viewed with skepticism in the justice system, so much so that some jurisdictions have restrictions against their use.
Samuel Bassett, an attorney who is the chairman of the commission, said the panel will seek a response from the state fire marshal and then write its own report.
Contacted Monday, one of Willingham's cousins said she was pleased with the report but was skeptical that state officials would acknowledge Willingham's innocence.
"They are definitely going to have to respond to it," said Pat Cox. "But it's difficult for me to believe that the State of Texas or the governor will take responsibility and admit they did in fact wrongfully execute Todd. They'll dance around it."
Friday, April 2, 2010
Search Warrants have many requirements
Just because law enforcement obtains a search warrant does not mean the search is legal, or that the evidence found from the search will be allowed in as evidence.
The validity of a search is governed by the Fourth Amendment to the United States Constitution and Article I, Section 10 of the Minnesota Constitution. The Fourth Amendment protects people and areas against unreasonable searches and seizures by the government. In the absence of a search warrant, a search is per se unreasonable unless the search comes within a defined exception.
In order for a search warrant to be upheld in court the information presented must be adequate, contain no misrepresentations and be properly executed. In order to be adequate, the warrant must be issued by a neutral, disinterested magistrate; demonstrate probable cause to believe there is a basis for the search or that the articles sought are located at the place to be searched and the things to be seized must be described as well as the places to be searched.
Statutes and case law help to define the terms such as: probable cause, adequacy, unreasonable or reasonable, seizures, and proper execution. A lawyer can help you to properly research and argue these points to the Court. If you find yourself in a situation where you need legal assistance, contact Patrick Flanagan for a free consultation.
763-786-5324
651-291-5453
Email: patflanagan@patflanagandefense.com
www.patflanagandefense.com
The validity of a search is governed by the Fourth Amendment to the United States Constitution and Article I, Section 10 of the Minnesota Constitution. The Fourth Amendment protects people and areas against unreasonable searches and seizures by the government. In the absence of a search warrant, a search is per se unreasonable unless the search comes within a defined exception.
In order for a search warrant to be upheld in court the information presented must be adequate, contain no misrepresentations and be properly executed. In order to be adequate, the warrant must be issued by a neutral, disinterested magistrate; demonstrate probable cause to believe there is a basis for the search or that the articles sought are located at the place to be searched and the things to be seized must be described as well as the places to be searched.
Statutes and case law help to define the terms such as: probable cause, adequacy, unreasonable or reasonable, seizures, and proper execution. A lawyer can help you to properly research and argue these points to the Court. If you find yourself in a situation where you need legal assistance, contact Patrick Flanagan for a free consultation.
763-786-5324
651-291-5453
Email: patflanagan@patflanagandefense.com
www.patflanagandefense.com
Tuesday, March 30, 2010
War Veterans and the Criminal Justice system
With more than 1.8 million Americans havin served in Afghanistan and Iraq, it was only a matter of time before those dedicated service men and women had contact with the criminal justice system. There is no possible way for those in society who did not serve in the armed forces to understand the stress this proud service caused on these soldiers individually.
Unfortunately, many of these same soldiers who proudly served our nation and faced the greatest of adversities in order to survive and keep others safe, have not sought help for themselves once returning home. This has landed some in the criminal courts with charges of assaults, dwi's and other alleged crimes. One of the questions that we need to ask in the criminal justice system is, but for the experiences that this young person saw in combat, would they be here now? But for their service to a nation that called upon these soldiers to serve, would they have engaged in the behavior the government now accuses them of?
As was pointed out in a recent Star Tribune Article, New vets court aims to help scarred soldiers, March 9, 2010 (by Mark Brunswick), "Veterans are a unique group of people, and the combat veteran in particular needs to be addressed." Right now veterans account for roughly 10 percent of people with criminal records. Id.
A soldier who does receive help through private means, or the United States Department of Veteran Affairs (VA), may very well receive a report that diagnosis them with Post-Traumatic Stress Disorder (PTSD). This may also be inflamed by, or accompanied with alcohol use to self-medicate and manage anxiety since returning home. A returning soldier may also experience intrusive and distressing daytime thoughts about experiences, hypervigilance, exaggerated startle response, avoidance of trauma and war related stimuli, emotional and physical reactions to internal re-experiencing of the traumas, sleep disturbance marked by trauma and violent themed nightmares, insomnia, elevated anxiety, anxiety attacks, short term memory loss, emotional numbing, depression, isolation, detachment and survivor's guilt.
A recent RAND Corporation study estimates that nearly 20 percent of Iraq and Afghanistan war veterans -- 3000,00 in all-- are returning with symptoms of post-traumatic stress disorder or depression; and only slightly more than half have sought treatment. Star Tribune Article, New vets court aims to help scarred soldiers, March 9, 2010 (by Mark Brunswick). Of that group, only half received minimally adequate treatment. Id.
Your attorney needs to understand and convey these unique circumstances to the prosecutor and the Court. Your attorney should also act as a legal counselor to provide guidance on where you can go to seek evaluations and treatment.
If you should find yourself involved in the criminal justice system and would like to discuss your case, contact Patrick Flanagan for a free consultation.
763-786-5324
651-291-5453
email: patflanagan@patflanagandefense.com
www.patflanagandefense.com
Unfortunately, many of these same soldiers who proudly served our nation and faced the greatest of adversities in order to survive and keep others safe, have not sought help for themselves once returning home. This has landed some in the criminal courts with charges of assaults, dwi's and other alleged crimes. One of the questions that we need to ask in the criminal justice system is, but for the experiences that this young person saw in combat, would they be here now? But for their service to a nation that called upon these soldiers to serve, would they have engaged in the behavior the government now accuses them of?
As was pointed out in a recent Star Tribune Article, New vets court aims to help scarred soldiers, March 9, 2010 (by Mark Brunswick), "Veterans are a unique group of people, and the combat veteran in particular needs to be addressed." Right now veterans account for roughly 10 percent of people with criminal records. Id.
A soldier who does receive help through private means, or the United States Department of Veteran Affairs (VA), may very well receive a report that diagnosis them with Post-Traumatic Stress Disorder (PTSD). This may also be inflamed by, or accompanied with alcohol use to self-medicate and manage anxiety since returning home. A returning soldier may also experience intrusive and distressing daytime thoughts about experiences, hypervigilance, exaggerated startle response, avoidance of trauma and war related stimuli, emotional and physical reactions to internal re-experiencing of the traumas, sleep disturbance marked by trauma and violent themed nightmares, insomnia, elevated anxiety, anxiety attacks, short term memory loss, emotional numbing, depression, isolation, detachment and survivor's guilt.
A recent RAND Corporation study estimates that nearly 20 percent of Iraq and Afghanistan war veterans -- 3000,00 in all-- are returning with symptoms of post-traumatic stress disorder or depression; and only slightly more than half have sought treatment. Star Tribune Article, New vets court aims to help scarred soldiers, March 9, 2010 (by Mark Brunswick). Of that group, only half received minimally adequate treatment. Id.
Your attorney needs to understand and convey these unique circumstances to the prosecutor and the Court. Your attorney should also act as a legal counselor to provide guidance on where you can go to seek evaluations and treatment.
If you should find yourself involved in the criminal justice system and would like to discuss your case, contact Patrick Flanagan for a free consultation.
763-786-5324
651-291-5453
email: patflanagan@patflanagandefense.com
www.patflanagandefense.com
Friday, March 26, 2010
Sentencing Trials
If you are convicted of a crime, the next phase is sentencing. In certain circumstances, the government may ask for the statutory maximum, rather than the guideline sentence. A guideline sentence is based upon a grid that is created by the sentencing guideline commission. This grid offers a guideline to the courts for sentencing. The guideline is based upon several factors, including, but not limited to, how people in similar circumstances have been sentenced in the past. For example, in Minnesota, possession of over 42.5 grams of marijuana is a felony with a statutory maximum penalty of 12 months and one day in prison. The guidelines suggest a sentence that has that 12 months and one day in prison stayed (do not have to do) as long as certain probationary conditions are met. This may, or may not include local jail time with work release privileges. Take a person caught with 45 grams of marijuana, with no criminal history. This person may want a sentence with no jail and probationary conditions to remain law abiding and remaining jail/prison time hanging over their head. The government may ask the court to not follow the guidelines and seek what is called an upward departure. The government may want you to serve the full one year and a day in prison, even though the guidelines do not recommend that.
In past years, the Court was simply able to consider the arguments of the prosecutor to determine if this prison sentence recommendation would be the correct thing to do. The legal landscape has just changed considerably on this issue. Blakely v. Washington, 542 U.S. 296 (2004), held that, in the context of mandatory sentencing guidelines under state law , the Sixth Amendment right to a jury trial prohibited judges from enhancing criminal sentences based on facts other than those decided by the jury or admitted by the defendant. This means that you have a right to a sentencing trial before the Court is able to upward depart on your sentence. In State v. Rourke, 773 N.W.2d 913 (2009), the Minnesota Supreme Court explained the difference between “facts” and “factors.” It also explained the differing roles that courts and juries play in sentencing departures.
Under the Minnesota Supreme Court’s Rourke case, in order for a defendant to receive an upward departure, a jury must find “additional facts.” By “additional,” the court means some fact that wasn’t necessary to prove the offense and wasn’t admitted by the defendant. For example, a finding that a defendant sprayed the handcuffed victims with chemicals is a fact, and it might be the kind of fact that justified a departure IF the sentencing court decides that spraying helpless people with chemicals amounts to “particular cruelty.” The court, not the jury, gets to decide that issue because “particular cruelty” is not a fact, it’s a factor.
If you should have questions about your criminal case, contact Patrick W. Flanagan for a free consultation.
651-291-5453
763-786-5324
email: patflanagan@patflanagandefense.com
www.patflanagandefense.com
In past years, the Court was simply able to consider the arguments of the prosecutor to determine if this prison sentence recommendation would be the correct thing to do. The legal landscape has just changed considerably on this issue. Blakely v. Washington, 542 U.S. 296 (2004), held that, in the context of mandatory sentencing guidelines under state law , the Sixth Amendment right to a jury trial prohibited judges from enhancing criminal sentences based on facts other than those decided by the jury or admitted by the defendant. This means that you have a right to a sentencing trial before the Court is able to upward depart on your sentence. In State v. Rourke, 773 N.W.2d 913 (2009), the Minnesota Supreme Court explained the difference between “facts” and “factors.” It also explained the differing roles that courts and juries play in sentencing departures.
Under the Minnesota Supreme Court’s Rourke case, in order for a defendant to receive an upward departure, a jury must find “additional facts.” By “additional,” the court means some fact that wasn’t necessary to prove the offense and wasn’t admitted by the defendant. For example, a finding that a defendant sprayed the handcuffed victims with chemicals is a fact, and it might be the kind of fact that justified a departure IF the sentencing court decides that spraying helpless people with chemicals amounts to “particular cruelty.” The court, not the jury, gets to decide that issue because “particular cruelty” is not a fact, it’s a factor.
If you should have questions about your criminal case, contact Patrick W. Flanagan for a free consultation.
651-291-5453
763-786-5324
email: patflanagan@patflanagandefense.com
www.patflanagandefense.com
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