Posts Categorized Criminal

The Yanez Verdict and the Bigger Picture

THE YANEZ TRIAL MAY ACTUALLY REPRESENT PROGRESS AND INTEGRITY IN CERTAIN ASPECTS OF OUR JUSTICE SYSTEM, AND REVEAL THE UGLY TRUTH ABOUT SOCIETY, NOT THE LAW As the Nation and World focus on a myriad of stories from the ongoing investigation of the Trump administration to the tragic shooting targeting members of Congress and staff in Washington D.C., the focus in Minnesota has been on the trial of Officer Jeronimo Yanez for his actions in the shooting death of Philando Castile.    The six day trial, the remarkably long five days of deliberations, and the ultimate verdict of not guilty on all counts, presents a unique analysis and opportunity for dialogue that, as is so often the case, has been lost to anger, division, and preconceptions.   There are legitimate emotions that bare upon the evaluation of the outcome.   The African American community has absolutely legitimate grievances in the disparate treatment of black individuals by law enforcement.   This has resulted in a well-founded distrust of the police, who in turn respond with frustration and a posture of defense of their profession and colleagues.  Most poignantly, a young man who, by all accounts, was an upstanding individual, a bright light to the community, and a friend to many children and teachers and staff at J.J. Hill Montessori, is dead.  Yet it can be said, as a matter of prosecutorial action and due process, the case as a whole actually may represent progress and a hope for our justice system.  It can also be said that the case raises more challenges going forward. Doubt and Skepticism, the heart of the criminal justice system. It is important to note, from the outset, that our justice system necessitates and demands the presumption that every single defendant accused of a crime is INNOCENT.  That is the premise for each case.  Every jury is told this, and we are all, collectively, the potential jury pool, and yet that is in profound contrast to how we treat stories when we read the newspaper.  We see that this or that person was booked for child molestation, or domestic assault, and we automatically judge them and essentially presume they committed the act alleged.  Essentially, Americans engage in a completely un-American thought process on a daily basis.  This is not an opinion that is allowed in the justice system.  You cannot be a juror if you cannot presume someone innocent.  That presumption of innocence remains with the defendant from arrest, to preliminary hearings, to the trial itself, all the way until the end of the presentation of all evidence and argument at trial.  The Jury is instructed on this several times. For a defendant to be found “guilty”, the jury must, after clandestine deliberation after analyzing all evidence, UNANIMOUSLY find the defendant guilty or not guilty.  There are no split verdicts in Minnesota, and indeed. most states.  We should be grateful for this standard.   Criminal law is the most powerful area of law.  It is the only mechanism under which the government… Read more {+}

From the United Airlines Passenger to Woodland Hills Brutality, People are Missing the Point

Well, spring is upon us, and that means increased travel, increased outdoors activities, and recovery from cabin fever.  People get outside, drive more, there are more birthdays in spring and school is winding down.  And it’s no coincidence that, at this time of year, police activity increases, and the phones begin to ring more here at the Law Office of Alex DeMarco. Dominating the headlines some weeks ago was the story of a United Airlines Passenger who was injured in the process of being forcibly removed from a flight.   In the fallout from the whole affair, the overwhelming consensus was that this brutality was unjustified and unnecessary.  Yet a small select handful of individuals continued to defend the airline and the officers involved, repeating the familiar ring, “if he’d only complied, this would not be a problem.”   This represents a profound divide in our society, a new partisanship, if you will.  A divide between those who can handle some minor disorder while maintaining freedom, and those who need absolute predictability, even if that means disproportionate violence on every single individual who does not do as they are told. Police Violence, Not Just for Crimes Anymore Dr. David Dao had committed no crime.   By all accounts, he had lawfully purchased a flight like any other traveler.   Announcements were made offering for passengers to “voluntarily” give up their seats for an incentive.  He refused.   He paid for that seat.   He had a right to be there.   Because of United Airlines’ inability to do math and their incentive to simply grab more money, he was ordered to leave.  He refused.  But it was not United Airlines who ultimately forced him to leave.   For any civilian to physically grab, beat,  and eject someone would be a crime.  It would be assault. Enter the immunity of the badge.   He was ultimately removed by members of the “Chicago Department of Aviation”, a division of the Chicago Police Department.   Dr. Dao suffered a bloody head injury, concussion, and missing teeth.  The chaos and disorder of that moment for all on the flight is palpable.  And yet, it was in the name of “order”, a failure to “comply” with commercial demands, that he was ultimately brutalized.  This very high-profile story is but a symptom of a much much larger problem, and that is, we rely on police officers to solve the majority of problems that we used to solve ourselves.  Armed Officers Are in Nearly Every Public School In America An example is school discipline.  For nearly all of our nation’s existence right up through the 1990’s, police officers on duty at school were unheard of.  To this day, there are no police officers in private schools, and yet there doesn’t seem to be more violence, drugs, or criminal issues in those schools where officers never set foot until they are called.  What DOES seem to occur more in public schools with officers present?  Escalation and violence.   Recently, we… Read more {+}

When Driving Drunk Becomes Necessary

There are two fundamental ways in which a DWI is challenged. One is a legal challenge which deals with the constitutionality of the progressive intrusion into one’s fundamental Fourth Amendment Rights. This primarily asks a court to suppress evidence in a DWI case before any sort of trial. It could raise a challenge to the basis for stopping the vehicle in a case. If the stop is legally proper, one could challenge the basis for the expansion of the the traffic stop into a DWI investigation, basically determining whether it was proper to ask a person to come out of the vehicle for standardized field sobriety testing. It could raise a challenge to whether there was probable cause to arrest the driver after such investigation.  Finally, a challenge may be raised to the Constitutionality of taking a chemical test without a warrant, which was recently litigated in a number of DWI cases in Minnesota and ultimately the Supreme Court of the United States ruling in |State v. Bernard|. DWI cases are difficult to challenge, but most of the successful litigation and positive case law come from these challenges. There can also be challenges raised to the science of DWI testing. The state is advancing a scientific test as evidence of a crime, namely operating a motor vehicle while the person has an alcohol concentration above .08. The State thereby “must establish that the test itself is reliable and that its administration in the particular instance conformed to the procedure necessary to ensure reliability. “Without a foundation guaranteeing the test’s reliability, the test result is not probative as a measurement and hence is irrelevant.” State v. Dille, 258 N.W.2d 565, 567 (Minn.1977).  It is very difficult to do this without involving an independent expert regarding the science of alcohol testing. It is often not successful to challenge the reliability of the chemical test as a matter of law before a judge. However, there can be success in challenging it before a jury, because the fact is that precise testing for alcohol concentration is not very good science, and the police officers themselves know very little about it. However there are also what are known as “affirmative defenses” to DWI.  There are not many, but one in particular which Alex DeMarco recently advanced at trial, and with success, is that of “necessity.” What is a necessity defense? It’s actually a defense that arises from English Common law and may apply to a number of different crimes and circumstances. Essentially this defense is made in a circumstance where the driver did not want to drive the car, but felt they had to in order to escape an immediate danger. Many lawyers when faced with a case of necessity give up afte researching the case law. That is because there are numerous rulings that have significantly limited when the defense is available. Many published cases deal with circumstances where the trial court ruled the jury could not consider a necessity defense, and the court of appeals and other higher… Read more {+}

BREAKING: United States Supreme Court holds stabbing you with a needle is the only thing protected by the fourth amendment

BREAKING NOW, Bernard’s second failure (click for full opinion). In the second blow to the Fourth Amendment in a week, the Supreme Court of the United States ruled today that, short of stabbing you to get to you blood, the Police can pretty much search you for nearly any evidence they want, post arrest. BREAKING: United States Supreme Court holds stabbing you with a needle is the only thing protected by the fourth amendment was last modified: July 28th, 2016 by Alex DeMarco

Bernard v. State of Minnesota, killing the DWI mill and restoring basic rights

We recently discussed a victory some weeks ago in which a person was able to avoid Minnesota DWI charges by following Alex DeMarco’s instructions to the letter at the police station.  The basic key:  Never submit, never refuse, ask for a warrant, every time.  That approach is based on recent rulings in Minnesota DWI law throwing out convictions for defendants whose fourth amendment rights were violated.  Had it been any other case, murder, burglary, drugs…the law would be clear.  It’s really simple.  Warrantless searches are unreasonable.  Only very precise exceptions can justify a search without a warrant, exceptions which are basically not even remotely applicable in a DWI case, despite decades of presumption to the contrary.  Today the very heart of DWI law in Minnesota, the criminal charge of DWI test refusal, THE ONLY mechanism by which test are obtained in Minnesota, was heard before the Supreme Court of the United States.  We wanted to update you so you can read the entire Transcript from Bernard‘s oral argument.    If you or anyone you know is facing a DWI, whether it’s in Faribault, or St. Paul, or Woodbury, or Minneapolis, All of Dakota County including Lakeville, Burnsville, Hastings, Apple Valley, or anywhere in Minnesota, contact us today to set up a free consultation.   Bernard v. State of Minnesota, killing the DWI mill and restoring basic rights was last modified: July 13th, 2016 by Alex DeMarco