Let’s talk about “defunding” or “abolishing” the police.

First, nobody is suggesting immediately disbanding all “law enforcement” and leaving a vacuum. But, there is a problem; in fact, there are multiple problems, with the role of police in American society. The Abolition Movement (which may need a better name) proposes to reduce these problems. And the solutions are not that radical.

Criminalizing Human Behavior

Police do too many things that they are not particularly good at. People call the police whenever something is bothers them:

Girlfriend left . . . with your clothes: call the police!

You get the idea.

The status quo, expecting police to be all things all the time (social worker, psychologist, animal control, negotiator, EMT — often all at once) makes competently performing those tasks impossible, often with tragic consequences for people who need actual services (such as a counselor or a doctor).

Furthermore, we militarize the police who respond to these situations. SWAT teams emerged in the 1960s, then the war on drugs became an arms race between police and narco-traffickers, and after 9/11 the military began wholesale disbursal of its surplus weaponry of war to police departments. On top of that, police have begun to view themselves as combatants in enemy territory. Popular “Warrior Training” teaches that police are soldiers in a war zone and that instant death lurks around every corner.  In fact, policing barely cracks the top-20 most dangerous jobs, trailing behind most agriculture jobs (farming and ranching).  But when Minneapolis banned “Warrior Training,” because it cultivated a dangerously antagonistic attitude toward citizens, the police union announced that the union would pay for it and that police could take the courses on their own time.

Reduce the Number of Encounters

We don’t need Warrior Cops responding to noise complaints and, frankly, don’t want them crashing parties when they are trained that there’s a sniper behind every beer keg.  In nearly every criminal case I litigate, I demand the responding officers’ training.  I can tell you that the overwhelming majority of their ongoing training is at the firing range, not in counseling techniques, de-escalation strategies, or talking a suicide down. In fact, the standard police report form in St. Paul actually has “Police Assisted Suicide” as a category to check. If someone is suicidal, the only option is to shoot her because we have summoned warriors, not therapists — yet we invariably call the police to respond.

Now, maybe, you see where this is going.  “Abolishing” or “defunding” the police means we don’t call them when our child is suicidal or our neighbor’s music is too loud. It means outsourcing many of their responsibilities to professionals who are trained in domestic disputes, drug addiction, and mental health crises, with 911-type emergency calls answered by the sheriff’s department.

This proposal is not novel. The rest of the developed world manages not to criminalize addiction, mental health crises, and poverty. That’s why we jail six times as many of our citizens (SIX TIMES) as any comparable country. It is time to be open-minded. Let’s be visionary. In this crisis, like so  many, is an opportunity.

The post Recreating Police appeared first on Barry S. Edwards.

“They Got  Him!”

A recent issue of the Minneapolis Star Tribune contained three attention-grabbing crime headlines:

“Despite no body, Moorhead man charged in dismemberment killing of woman, 19“

and

“Suspect faces first charges in attacks terrorizing women in Minneapolis“

and

“Man charged in Hopkins hit-and-run that left man critically hurt“

How We React

Even I – a warrior for due process and defendants’ rights – have a visceral response to these headlines: “they got him!” “throw the book at him!”

I know I am not alone. Most people feel the same way.

That Is a Problem

The problem with this visceral reaction – and it is a problem – is aggravated by stories that invariably include “facts” from the criminal Complaint.  Unfortunately, reporters invariably refer to Complaints as “court documents,” giving them the imprimatur of “official” or “unbiased” statements whereas, in fact, they are drafted by an advocate to advance a particular position. Therefore, my jury pool becomes tainted by a presumption of guilt–even if they have not read an article about my particular case.  It is in the air.

WHY is it a problem?

There are two kinds of “innocence” in jeopardy here. On a purely theoretical level, this reactive presumption of guilt undermines a fundamental ideal of the Republic: the presumption that someone is innocent until a jury of his or her peers hears all of the evidence and decides whether that evidence amounts to proof of guilt beyond a reasonable doubt. It is hard enough to select twelve unbiased jurors when the judge swears them in to hear “The State versus Kevin Richardson” when you are representing the guy “The State” is against. The automatic presumption of guilt revealed by our reactions to headlines makes it harder.

Then, there is factual innocence, when a jury acquits or a prosecutor drops charges because the defendant did not commit the crime . . . or someone is later exonerated.  Mr. Richardson, above, was one of the “Central Park 5” who actually plead guilty rather than face a jury and possible life imprisonment (he was later found not to have been involved and was exonerated although President Trump still calls for him to be executed). The National Registry of Exonerations lists over two thousand, six hundred people whose convictions have been reversed and who have been exonerated.  The  hurdles to receiving an exoneration are so high that this list shows only a small percentage of the innocent people who were sent to prison.

Given the number of people sitting in jail today pending a trial (roughly half a million people sit in cages awaiting trial) and the ones in prison who were wrongfully convicted, the erosion of the presumption of innocence leads to decades lost, families forced into poverty as the breadwinner is incarcerated, deportations, children removed from families, and untold suffering.

What is the Solution:

Part of the solution is to call for more responsible journalism. Reporters I have spoken to did not know that Complaints are drafted by prosecutors advancing their adversarial agenda (which is their job). Reporters need to learn that there is more nuance and another side to these stories (self-defense, mistaken identification, false report) and include language showing that they understand this such as “the prosecution argues” or “it is alleged that.”

Another part of the solution is more civics education. For all of the emphasis these days on “STEM” education (Science, Technology, Engineering, and Math) the unique ideals that make this country great are those in the Bill of Rights, not the latest technological advances. Students need to learn those rights that are fundamentally what makes them as Americans uniquely free. And they need to learn the critical thinking that they can use to question the often-unintentional punitive bias in the news.

The post Presumption of . . . Guilt! appeared first on Barry S. Edwards.

It makes sense that if a law is too vague for someone to know what is or is not allowed, that’s not fair.  The legal term for “fairness” is “due process.” A law that is too vague to know what it covers can be found to be “void for vagueness.” Similarly, laws that are “overly broad” can be found to violate someone’s right to due process by prohibiting too much conduct, even some that is not harmful.  Minnesota’s stalking law was recently found unconstitutional for this reason.

Minnesota’s Stay at Home Order:

Minnesota’s “Stay at Home” order provides a perfect example.

On the one hand, violating the law is a crime (a misdemeanor, which  is punishable by up to 90 days in jail and a fine of $1,000.00).  On the other hand, the media report that Governor Walz has instructed the police not to enforce the law . . . except sometimes.

There have already been at least eight instances of people charged for violating the order.

How Vague IS the Order:

For starters, I could not find it after about thirty minutes of searching.  I am a criminal defense attorney with about twenty years of experience, and I could not find the law people are being charged with violating.  Here it is in a 22-page PDF.

It turns out that my work is exempt (I can go to work).  You can find that particular exemption on page 9 at Para. 6 (cc) (iii).  Note that it is exception “cc” because the exemptions had already used up the 26 letters of the alphabet (my work is the 29th exemption).  Is your work exempted?  Is your preferred leisure activity exempted? The Order exempts,

“. . . outdoor activities (e.g.,walking, hiking, running, biking, driving for pleasure, hunting, or fishing),and . . . go[ing] to available public parks and other public recreation lands, consistent with remaining at least six feet apart from individuals from other households.”

What about frisbee golf if you stay six feet apart?  Will police tell you to “freeze,” take out a tape measure, and measure the distance between you and your nearest “golfing” partner? In many criminal cases, police can “extrapolate” prior conduct based on their observations and prior “training and experience.”  Can the officer testify that to be where you were, you must have been closer than six feet a few seconds earlier?

What about going to the grocery store? Para. 5 (d) allows going to the store for “food . . . and other grocery items.”  So far, so good. But the title of Paragraph 5 is “Necessary Supplies and Services.”  So, can you go to the store for ice cream? Groceries are exempt, but ice cream isn’t necessary?  What about orange juice?  What if you are diabetic?  What about going to buy cigarettes?  Are they grocery items?

What about? What about? What about?

Yeah, I’m lawyering the hell out of this.  But being charged with a crime is serious.  “Even a misdemeanor.”  Most employers are not allowed to ask early in the interview process whether you have been charged with or convicted of a crime, but they do.  And they are allowed to ask in a subsequent, in-person interview.  Given a choice of hiring someone who has been charged with a crime and someone who has not, the employer more often than not will take the person who is not a criminal.  The same analysis goes for housing, for college admissions, and professional licenses (from day care provider to doctor).

Like most criminal laws, the idea behind this one is laudable.  I support it.  But it shows with unusual clarity how vague or over broad laws can have unintended and serious, even life-altering, consequences.

The post What’s the Law: COVID-19 Edition appeared first on Barry S. Edwards.

Three statistics to start this off:

1) Roughly 2.2 million Americans are behind bars on any given day;

2) With 4.4% of the world’s population, the US incarcerates 25% of the world’s prisoners;

3) One-third of them have not been convicted of the crime for which they’re being held.

Pretrial Detention:

That’s right: one-third, or approximately 800,000 Americans are in local jails (usually considered the hardest place to do time) on suspicion of having committed a crime. They have been charged but not yet tried.  They’re innocent because they haven’t been proven guilty. Many are found not guilty after trial.

This website breaks down the incarcerated population into various categories: ICE detention, pre-trial detention, juvenile facilities, and other categories, such as the nature of the charges, in a particularly readable format:

Someone who has been arrested, in most circumstances, has an option of one bail with no conditions and another with conditions (like regular check-ins, random drug tests, or stay-away orders). Both amounts are usually unaffordable to all but the most wealthy (tens of thousands of dollars). So, unless you’re very wealthy, if you’ve been charged with a crime, you sit in jail. Phrased in reverse: the U.S. jails hundreds of thousands of  people at any given time for being poor.

Cesspools of Germs:

Jail, it goes without saying, is an unsanitary, unhealthy environment under the best of circumstances. Large groups of people live in tight space with little or no access to soap, toilet paper, or running water. Right now, with COVID-19, it’s a vector of infection for the worst pandemic the world has seen in 100 years, potentially infecting these people and their family and anyone else they come into contact with.

Bail Reform:

All I did the first week after the pandemic was declared was try to get clients who are serving pre-trial detention out of custody by filing motions to reduce bail or to release people without bail. People released without bail can be released on their own recognizance (a promise to return to court to face trial), placed on a GPS monitor, told to check in with probation or a conditional release agency, or any of a number of conditions designed to ensure cooperation.

Study after study shows that people released without posting bail (or a bond) return to court as required as often or more often than those who stand to lose the money they posted. They are no more likely to reoffend, either.

Due to the COVID-19 pandemic, jails are trying to reduce their populations as fast as they can by releasing, without bail, people who don’t need to be incarcerated before trial. In Ramsey County, Minnesota (St. Paul) where I mostly work, the County Attorney (who prosecutes felonies) and the sheriff (who runs the jail) are, on their own, preparing lists of detainees who can be immediately released.  These include people charged with non-violent offenses (such as theft), people with no or little criminal history, and people charged with drug offenses. Many of these people are being released before I can even file motions and argue for their release.

COVID-19 Forces Reform:

This raises the question, of course, of why we incarcerated them in the first place. When people sit in jail for days, weeks, or months, they lose their jobs, they can lose custody of their kids, they don’t pay bills, so vehicles get repossessed, elderly parents are not checked on, and a cascade of consequences follows from which they may never recovered, even if eventually found not guilty of the crime they were charged with.

We’ll see, eventually, the results of this ad hoc test of what we bail reformers have been looking for.  I’m betting we learn that hundreds of thousands of people did not have to spend all of this time in jail awaiting trial, and the U.S. will join other developed countries in only punishing the guilty!

Call me if you need to get someone out of jail or you want to discuss release options.

The post COVID-19 Forces Bail Reform appeared first on Barry S. Edwards.

Steve was charged with felony DWI.  After two jury trials, and a prosecution that lasted over two years, he was acquitted.  Here’s his story:

Steve had had three prior DWIs which resulted in two things: 1) he had ignition interlock in his car (so he couldn’t start the car without blowing into an alcohol sensor and 2) he had gotten sober.

A Simple, Careless Accident

Driving home from McDonalds and trying to eat a milkshake with a spoon — admittedly bad driving conduct — Steve hit a parked car with enough force for his airbags to go off.

Confirmation Bias Takes Over

When White Bear Lake police officer Patrick Swenson (his real name) arrived, he saw the ignition interlock and began a stream of speculation which, fortunately, he said out loud to another officer and was captured on his body-worn camera.  He told another officer that Steve “reeked of alcohol.” Using his powers of deduction, Officer Swenson speculated that a woman walking down the sidewalk had been Steve’s passenger and had blown in the ignition interlock to start the car.  Steve tested 0.00 for alcohol and the pedestrian was just a woman on a walk, but Officer Swenson was not deterred.

Officer Swenson performed the Drug Recognition Protocol he had been certified in and determined that Steve was under the influence of a Central Nervous System (CNS) Depressant.  His determination may have been informed by the fact that Steve told him that he had taken his prescription Valium and not by the fact that Steve was negative for 9 of the 12 DRE CNS depressant clues.  The three positive clues were 1) pupils of normal size (because CNS depressants don’t affect pupil size), 2) low blood pressure which, in this case was an admirable 70/100, and 3) flaccid muscle tone (a completely undefined term).  I have all three of those clues, too (thanks to a lot of blood pressure medication)!

Officer Swenson got a warrant and took a sample of Steve’s urine, which tested positive for the medicine Steve had been prescribed.   Officer Swenson subpoenaed Steve’s prescription records and found that Steve had 1) been prescribed this medication for several years, 2) that Steve had always received his prescriptions from the same two doctors (no doctor shopping), 3) that Steve had always filled his prescription at the same pharmacy (no pharmacy shopping), and 4) that Steve had never filled his prescription early.  Steve gave every indication of responsibly taking his medicine as prescribed.

Waste of Court — and Jurors’ — Time

Still undeterred, Officer Swenson recommended that Steve be charged with driving under the influence of a controlled substance, and the Ramsey County Attorney, of course, obliged.  After a mistrial on the first go-round, we tried the case to a second jury which, of course, found that there was no evidence that Steve had driven while under the influence of anything but a poor decision to try to eat his milkshake with a spoon while driving.  He should have been fined for careless driving and made to pay restitution for any damage he caused.

Instead, he has a felony charge (although he was acquitted), he spent about a four days in jail then lost the $2,000 he had to post for bond, and he lost his job because he was in court over twenty times.

If you’ve been charged with a crime, call me, an attorney who defends clients all the way through jury trial if necessary!

The post Not Guilty appeared first on Barry S. Edwards.

Mr. Harlow:

I appreciate today’s article on DWI arrests, but I do have a few nits to pick.

First, your article confuses being arrested for DWI (alcohol or drug) with actually being impaired. You write that a “majority of the 27,975 motorists cited for driving while impaired (DWI) last year had too much alcohol in their system.” Unless you know the outcome of the cases, the resolution in court, you don’t know that they had too much alcohol, only that they were accused of it. To be more precise, I think you’re saying that the majority of those arrested for DWI were suspected of DWI with alcohol (as opposed to drugs).  There is a difference.  The presumption of innocence isn’t just a technicality or a relic of the 18th century (when the Constitution was written). Assuming police get it “right” 95% of the time, that’s still 1,500 arrests per year in which the person was innocent (assuming the round number of 30,000 arrests per year).

For example, I have one going to trial next week in which my client had an accident (hit a parked car). The cop said (captured on body cam) “she reeks of alcohol.” When she blew 0.00 on the preliminary breath test (PBT), the cop took a urine sample. That showed metabolites of a prescription benzodiazepine. It’s only illegal to drive on that medicine (or any drug from schedules 3-5) if you’re impaired (a subjective determination), while it’s illegal to drive with any amount of Schedule 1 or 2 drugs (although a prescription is an “affirmative defense”).

Second, you take Mike Hanson’s word for the fact that the police are getting better at detecting people impaired by drugs and refer to Drug Recognition Evaluators (you call them what they call themselves, “Drug Recognition Experts,” but according to the Minnesota Supreme Court in Klawitter, they aren’t experts, at all, and it is a mistake to call them “experts,” at least in front of a jury).

Simply put, DRE training is . . . a joke. Try this: ask an MD if he could determine the type and amount of controlled substance a person is on using the DRE twelve test protocol. I’ve done it. The trained doctor would laugh that he or she could so determine, but cops believe they can after a two-week class. Judges across the country are dismissing DRE testimony on these grounds (here’s just one example).

I could go on and on, but I won’t. Instead, I invite you to contact me any time, and I’ll explain how much more complicated Minnesota DWI law is than the police, BCA, and DPS let on.

Thank you.

BSE

If you’re arrested for DWI, whether the suspicion is too much alcohol or controlled substances, call me (612) 310-7398.  There are affirmative defenses, there are errors in testing, and there are constitutional rights that can protect you.

The post An Open Letter to the Star Tribune appeared first on Barry S. Edwards.

The City Pages picked up the story, and ran an excellent piece today, including an interview with me.  You should read it to see how your government is wasting your tax dollars, denying 35,000 people a year due process, and violating their civil rights.

The post Minnesota Breath Testing Machines Under Scrutiny appeared first on Barry S. Edwards.

Some Minnesota appellate court decisions and statutes can only be explained with a shrug and quietly mumbling “because DWI.”  Due process (the legal term for “fairness”) is routinely abandoned in DWI law in ways that is not  tolerated in other areas of law.

Chief among these is the admissibility of breath tests in DWI prosecution without any proof that the tests are accurate and with limited opportunity to challenge the results.

From the Roadside to the Courthouse

Not only can police drag you to the station and search your body without a warrant, the test is admissible in court without proof that it is accurate. To be clear, I refer to the “evidentiary breath test” at the police station after a driver has been arrested, handcuffed, and transported to the jail in the back of a squad car, not the preliminary breath test (PBT) given at the side of the road.

Few people question, and many applaud, this expedited means of catching and punishing “drunk drivers.” But “drunk drivers” is in quotation marks because some of these people simply are not drunk.  The machine produced a flawed breath test.

People are Going to Jail Based on Junk Science 

For years, I and others have been arguing that these tests are not accurate. People are being subjected to the humiliation, the intrusion on their bodily integrity, and a criminal prosecution based on a test that does not accurately reflect the person’s actual blood alcohol level. These convictions carry untold scores of collateral consequences ranging from losing a job to losing custody of children, not to mention the financial costs.

Fortunately, the New York Times has recently blown the lid off of this injustice with a series of investigative articles, including one with the apt name “These Machines Can Put You in Jail. Don’t Trust Them.” The problems cited in the articles include that the machines are not calibrated properly, that they are not maintained properly, that they are not used correctly, and that the fundamental scientific principles behind these machines are simply bad science. According to the Times, “[t]he devices, found in virtually every police station in America, generate skewed results with alarming frequency, even though they are marketed as precise to the third decimal place.”

Exposing the problem, though, does not solve it. At least not in Minnesota.

Problem Identified . . . not solved

Under Minnesota law, the reliability of the testing machine cannot be challenged directly in court. The test is presumed reliable unless the driver can present evidence that the machine he or she was tested on was not working in this particular instance. That is, a driver in court cannot challenge the reliability of the machine, itself, no matter how unreliable the underlying technology is. Once the BCA, which is an arm of the prosecution and has a vested interest in promoting the reliability of the machine it certified, says the machine is trustworthy, the driver cannot challenge whether the underlying testing methodology is reliable (whether the machine works), only whether the machine worked as it was supposed to in this instance. Even if “as it was supposed to” is not a reliable, scientific method of testing breath or blood alcohol.

For context, if you want to introduce DNA, medical testimony, or metallurgy (to determine why a building collapsed or a car crashed), you have to have an expert testify why a scientific methodology is accurate and reliable. In DWI prosecutions, and uniquely in DWI prosecutions, as long as the BCA (again, an agency that works for the prosecution) certifies the machine, and the police officer pushes the button on the machine, no amount of expert testimony that the underlying science on which the machine operates is flawed (know as “antecedent testimony as to foundational reliability”) is allowed in court. Einstein, Newton, and Edison could all be ready to testify that infra-red and fuel cell testing of breath does not provide a reliable measurement of blood alcohol (measured by breath) or impairment, and Minnesota courts are not even allowed to hear their testimony. In short, you cannot cross-examine the primary witness against you.

This is true, even if the operator of the machine did not operate it according to proper procedures.

Angry yet?

The Consequences

Thirty- to forty-thousand Minnesotans are arrested on suspicion of DWI each year. Most do not even fight the charges because they assume the test is accurate and cannot be challenged. However, I can and do challenge these machines . . . and have done so, successfully many times.  There are ways to get a jury to understand how bad these machines really are, in spite of laws that have made it hard to do so.  Using the BCA experts’ testimony against them, using the actual materials that the police are trained on, and using every scrap of paper the BCA, itself, has produced about these machines, I can prove how unreliable Minnesota’s DataMaster DMT-G (with fuel cell option) actually is.

The BCA actually changed its website after I made a two-foot by four-foot exhibit of it and started showing it to juries! I can give someone accused of DWI a fair chance to demonstrate that the test accusing them of driving drunk is wrong.  Don’t let junk science accuse you of something you didn’t do.

Call me to challenge your DWI test result. Click here to see how I do it.

The post “Because DWI . . .” appeared first on Barry S. Edwards.

The Founding Fathers were concerned that the State not have the power to oppress the citizens.  That’s why they put so many fundamental rights in the Sixth Amendment:

1. The right to a speedy trial
2. The right to a public trial
3. The right to be judged by an impartial jury
4. The right to be notified of the nature and circumstances of the alleged crime
5. The right to confront witnesses who will testify against the accused
6. The right to find witnesses who will speak in favor of the accused
7. The right to have a lawyer

This system only works, though, if the two sides have equal access to resources. It is a warped and ineffective truth-finding process when one side is overwhelmingly better supplied with people, technology, and money.

But that is the case in every single criminal prosecution. It’s never a fair fight.

Investigations and Resources

The defense – the citizen who has been charged with a crime – can be  overwhelmed by the prosecution’s access to resources. Take investigators. To properly represent a defendant, you need to talk to witnesses, look at the scene, and collect evidence.

When I represent a client, my ability to conduct an investigation is limited by how many investigators the client can afford to hire (usually one or zero). When the prosecutor wants to investigate, he or she has city police, county sheriff’s deputies, state Highway Patrol, and their staffs. That’s thousands of people!

For scientific investigation, looking at DNA, testing alleged drugs, comparing fingerprints, or analyzing video, we may or may not be able to afford to hire an expert. The prosecutor, on the other hand, has hundreds of Bureau of Criminal Apprehension (BCA) scientists at his or her beck and call not only to conduct tests but to testify at trial.

How I Even the Odds

The citizens can still win.  We can even the odds. I do this by relentless focus on the conduct of the police and their agents. The more people they throw at a case, the more people whose conduct is subject to scrutiny for bias, error, or poor judgment. In this country, police need a reason (“particularized, individualized suspicion of wrong doing”) to even start an inquiry. To arrest someone, the police need to meet a higher standard: probable cause which is more than “a mere hunch.” (Terry v. Ohio).

Doggedly holding the prosecution to its constitutional constraints every step of the way, from initial contact through arrest, forces the prosecution to prove they dotted every “I” and crossed every “T.” Too many arrests are motivated by an “ends justify the means” mentality, and rigorous study of the case file, the police training, the body cam footage, and the reports always exposes shortcuts and mistakes.

One quick, nerdy, example: in a DWI arrest, the police officer likely conducts a horizontal gaze nystagmus test (the one where he or she waves a finger in front of your eyes).  That test has to be performed accurately to conform to the scientific validation studies that support its use to determine alcohol impairment.  Most police don’t do it right (it requires 8-12 passes over nearly a minute and a half at different speeds and stopping and starting

at different positions). If the cop does it wrong, the test is useless and can’t be used to prove impairment.  I also look at who trained the police officer on conducting this scientific test.  Hint: it was another police officer, not a scientist.  I look at the studies underlying the test and if they apply to my client.  I look at whether the conduct of the test conformed to the rigorous scientific protocol underlying its justification: you can’t determine in a lab setting that this test proves alcohol impairment under controlled conditions, then apply it on the side of the road, haphazardly performed, and say it proved the same thing as the controlled study.

Finding the Weakness

This is just one of scores of details that often do not hold up to intense scrutiny and can cut the legs out from under a prosecution.  They have the battalions of scientists conducting the validation studies and training the armies of police officers, but I have their studies and their training manuals and can study those materials and the videos, training, and performance of many procedures and processes to determine if they did it right, whether your rights were vindicated at the first encounter, at the arrest, during the interviews and interrogations, during the investigation, and during the collection of evidence.  Each step has scores of components that are subject to my intense scrutiny.

The Sixth Amendment — the Jury

Finally, and most importantly, the prosecution must prove to a jury of citizens that the person who has been charged is guilty “beyond a reasonable doubt.”  The American jury system was designed as a deliberate bulwark against oppressive government actors.  Thomas Jefferson wrote to Thomas

Paine, “”I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.”  At the end of the day, juries tend to know what is fair regardless of the layers of officialdom that are used to obscure the facts.  Juries even the odds.

When you’ve been accused of a crime and you’re facing life-changing consequences if convicted, that enormous disparity between the prosecutor’s resources and your attorney’s is not academic.  You need an attorney who can even the odds.

The post A Fair Fight: Winning Your Criminal Case Against the Odds appeared first on Barry S. Edwards.

On the drive to work today, I saw several drivers talking on their cell phones.  Tomorrow, that will be illegal.  At least . . . I think I did.  That’s what it looked like.

Selective Enforcement

However, like all laws, this one has exclusions, exceptions, and nuances.  And like all laws, it will be selectively enforced.

How often to you see people talking on their phones while driving?  Assuming that everyone doesn’t instantly change their behavior police could do nothing but stop people for talking on their phones while driving.  They won’t.  Just like they don’t stop every car with a broken tail light or a dirty (obscured) license plate.

Hence selective enforcement.

I published an article in the Pioneer Press (St. Paul) last year calling for an end to pulling people over for minor equipment violations (police could just mail them a ticket instead of pulling them over).  Among the law enforcement responses I got, personally, was that they (law enforcement) use these excuses to stop vehicles they want to search (“pretext stops”). This law will be used the same way.

Prove It!

There are also issues with proof.  Whatever the reason, malfeasance or error, police often pull people over for alleged violations that never occurred. But if you’re pulled over for using your cell phone because the officer thought he or she saw you doing so, what are you going to do?  It’s your word against the officer’s. With enough time and expense, you could subpoena the cell phone company’s records and compare the time of the stop with the time of your phone calls. But what if you were using your phone at that time but properly, in hands-free mode?

I routinely litigate stops in which police say that my client changed lanes without signaling, crossed a lane line, swerved, or exceeded the speed limit but the video and other evidence shows otherwise. How do you prove that someone was or was not using a cell phone in violation of the law?  A case made national news recently when someone in Connecticut was charged with talking on his cell phone while driving, but he proved that he was actually eating a hash brown.

Reluctant as many are to acknowledge it, some police are bad.  Some police plant evidence, lie about stops, make up evidence, and then lie about it on the witness stand.

Whether by mistake, pretext, or outright malfeasance, police stop people all the time for alleged violations that turn out not to be true.  This law will lead to many wrong stops, stops that lead to illegal searches, and pretext stops.

All in all, I’m pretty sure it’s a good law.  But it will lead to wrongful prosecutions, abuse, and costly mistakes.

Call Me

If you’re stopped and have questions, call me: 612-310-7398

The post Hands-Free Cell Phone Law appeared first on Barry S. Edwards.