blog of the minnesota society for criminal justice

CLE: Guns – Criminal Laws and Civil Rights

Thomas Gallagher — Wed, 13 Jul 2011 23:05:31 +0000

The criminal defense lawyer members of the Minnesota Society for Criminal Justice often need to advise and advocate for clients on issues related to firearms. A person could be accused of crime based on a gun (for example, felon in possession), or an enhanced charge or sentence based upon a gun (for example, a Minn Stat 609.11 minimum sentence.) Or, a person could be concerned about the future impact on their civil rights to own or possess firearms in the event the person were convicted of a crime unrelated to firearms (for example, a drug crime.)

: Handgun

On July 10, 2011, Thomas Gallagher, a Minneapolis criminal lawyer and current President of the Minnesota Society for Criminal Justice, presented a Continuing Legal Education (CLE) seminar on “Guns – Criminal Laws and Civil Rights,” to the membership.

A recent US Supreme court case has clarified that we have an individual right to firearms:

“The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.” District of Columbia v. Heller, 128 S. Ct. 2783, 554 US 570, 171 L. Ed. 2d 637 (2008).

Self-defense is a related issue for criminal lawyers considering the impact of guns on their practice. Gallagher noted somewhat different legal standards for self-defense, depending upon various factors including: whether death was the result or not; whether it took place in the person’s own home or not; whether the person it was used against was an intruder or a co-resident; whether there is a “duty to retreat;” and what might be considered “reasonable force” under what circumstances. He noted that historically in the United States, there has been a cultural hostility to the idea of a “duty to retreat” being layered on top of “reasonable force used in self-defense, under the circumstances.” Yet, in Minnesota there is in the law a “duty to retreat” if practical, before using reasonable self-defense, especially when outside one’s own home. (There might be even within one’s own home, depending upon circumstances.)

Some common gun crimes Minnesota defense lawyers see, include:

Possession of firearm by ineligible person, Minn. Stat. § 624.713, subds. 1(b), 2.
Possession of firearm with removed serial number, Minn. Stat. § 609.667, subd. 2.
Reckless discharge of a firearm, or Intentional Discharge of a Firearm Under Circumstances that Endanger the Safety of Another, in violation of Minn. Stat. § 609.66, subd. 1a(a)(2).
Negligent storage of firearms, Minn. Stat. § 609.666.
False Statement on Application for Gun Purchase (misunderstood legal terms).
Carry without permit, unless exception applies. Carrying of weapons without permit, non-prohibited persons, (see Minn. Stat. § 624.714, subd. 9). State law prohibits any person, other than a law enforcement officer or a state prison guard who is performing assigned duties, from carrying a pistol in a motor vehicle or in a public place without obtaining a “permit to carry.” A permit to carry is not required to carry the pistol in the following situations:

in one’s home, place of business, or on one’s land;
from the place of purchase to one’s home or place of business;
from one’s home or place of business to a repair shop;
between one’s home and place of business;
in the woods, fields, or on the waters of this state for hunting or target shooting in a safe area; or
in a motor vehicle, snowmobile, or boat if the pistol is unloaded and in a secured box or package.

In addition to crimes based upon prohibited possession or uses of guns, Minnesota has criminal statutes which enhance penalties or provide “mandatory minimum” sentences, if some other type of underlying crime is also associated with a gun in certain ways. Minn. Stat. Section 609.11 is one such statute. Various criminal statutes are listed. If a gun is possessed or used impermissibly in relation to one of those other, listed crimes, then a mandatory minimum sentence can apply. Defense lawyers will try to get a prosecutor to agree to drop a gun enhancement under 609.11. Otherwise, the criminal defense lawyer can make a motion to the court to do so, for example, a Royster motion to dismiss gun enhancement in a drug case. State v. Royster, 590 N.W.2d 82, 85 (Minn. 1999). See also, US v Spotted Elk, 548 F.3d 641 8^th Cir 2008) (gun bartered for drugs was not used in connection with.)

When it comes to a person losing their civil rights to purchase, possess, or use firearms, there are many, many ways for this to happen, and many of these were discussed. Probably the two most common scenarios are: (a) a person who has lost their civil rights to firearms due to a felony conviction; and (2) a person who has lost their civil rights to firearms due to selected misdemeanor, or other crimes of domestic violence. A noted anomaly: a Minnesota state felon who has completed probation can get their civil rights restored if they petition the court for their restoration and the court grants that request. But, a person convicted of, for example, misdemeanor domestic assault would not have a statutory right to petition the court for restoration of civil rights. Another hazard to beware: Though a ”stay of imposition” of sentence, completed successfully is deemed a non-felony conviction under Minn. Stat. Section 609.13; under other Minnesota statutes such a conviction would still be a felony for purposes of civil rights to firearms. Defendants have been commonly misinformed in that situation, for years.

Criminal lawyers should be prepared to advise the people they represent about the potential consequences of any criminal charge or resolution, upon their civil rights to firearms.

Minnesota Society for Criminal Justice DWI Annual Seminar: Friday, June 10, 2011

Thomas Gallagher — Sat, 04 Jun 2011 02:37:08 +0000

The Minnesota Society for Criminal Justice has presented a single Seminar on DWI defense annually for decades. They are nationally known and have been attended by the best DWI lawyers in the United States. This year, we bring it home again with a Minnesota location in the Twin Cities. Without any doubt, this is the best DWI defense course presented in Minnesota, presented by the oldest Minnesota criminal defense bar association – The Society for Criminal Justice.

: Welcome to the new machine – the Datamaster DMT.

Details on the mscj DWI Defense Seminar for Minnesota on Friday, June 10, 2011, from 8:30 am – 4:30 pm:

Location: The Northland Inn,
7025 Northland Drive, Brooklyn Park MN 55428

Attendees will receive the leading DWI defense information, research and forms for defending Minnesota DWI cases – from the first and leading Minnesota criminal defense lawyers organization representing those charged with DWI. Materials will be provided on a disk, for easy use later. You can bring a laptop.

Training by local & national experts and DWI defense lawyers on uncovering the truth using science and law, including:

Intoxilyzer Source Code Review and Update
from MSCJ Source Code Coalition lead counsel.
Datamaster DMT – Intro to Minnesota’s new breath machine,
from Expert and Trainer Chuck Rathburn.
Local Rules and Policies of District Courts.
Key Cases & Statutes Update
New Ignition Interlock Rules.
Ethics rules: Flat-fee retainers – new rules, new issues.
Out from Under the Influence – Chemical Dependency issues.

For Defenders only – only defense attorneys may attend. Lunch included.

Registration form.

CLE: Using PowerPoint, Other Presentation Technology in the Courtroom.

Thomas Gallagher — Sun, 10 Apr 2011 01:48:21 +0000

At the April 9, 2011 meeting of the Minnesota Society for Criminal Justice (MSCJ), member and St Paul Criminal Defense Attorney Thomas C. Plunkett presented a Continuing Legal Education class to the other criminal lawyer members on Using PowerPoint (and other presentation technology) in the courtroom.

: Thomas Plunkett, St Paul Criminal Defense Attorney

Have a theme to your presentation. PowerPoint helps with the presentation of the theme. Sound Recorder, Movie Maker and PowerPoint are part of the Microsoft Office Suite. Inserting a sound into PowerPoint: Left click on insert, left click on movie or sound, left click on file. Set the sound to auto start.

Movies can be formatted by size by pulling on the handles, hover over than left click to hold. Layering and linking allows jumping back and forth between slides even though PowerPoint has a linear presentation mode.

The Poor Man’s Trial Director. Keep track of slide numbers. Create a grid in PowerPoint. Insert a number in one box of the grid, highlight or select it, change the color, and left click on it to insert to a table or hyperlink to another page in the PowerPoint file.
Portable Scanner Snap Scan (or other portable scanner) saves to PDF format, which can then be dropped into a PowerPoint presentation. Use a digital camera to save an image. Then insert with left click image and paste or insert saved picture from pull down menu. Animate slides by left click Animations, then custom animation, then chose transitions.

Practical tips for use in courtrooms. Survey the courtroom after initial appearance. Bring a cord or link to projector. Determine
resolution on projector to coordinate with computer. Back up program to a CD. Use PowerPoint to link, compare and contrast exhibits, testimony, and argument – whether documents, video, audio, or graphics.

Remember that PowerPoint and other presentation technology should aid and assist your presentation. But the technology should not be the focus. Your theme should be your focus. Technology can help you help others see your theme more clearly.

Short video on Intoxilyzer 5000 source code and other flaws

Thomas Gallagher — Thu, 13 Jan 2011 21:52:17 +0000

Pennsylvania Attorney Justin McShane summarizes the problems with the breath machine used in Minnesota, the “Intoxilyzer 5000.”

(Also available on his Pennsylvania DUI Blog) It discusses issues identified in the Minnesota Society for Criminal Justice (MSCJ) Source Code Coalition litigation. Worth a read and a listen.

Prosecutors and Courts Now Seeking Verification of Attorney Membership in Minnesota Source Code Coalition

Thomas Gallagher — Sat, 14 Nov 2009 21:16:03 +0000

Guest Post by David Risk, Minnesota DWI Lawyer.

Roger Gershin, President, and David Risk address MSCJ meeting November 14, 2009

Are you, or is your attorney a member of the MSCJ Source Code Coalition?

There is a concern that some attorneys have filed documents in court incorrectly stating that the attorney is a member of the Coalition or that the attorney has retained experts when that is not accurate.

Prosecutors are moving against defense attorneys who have filed motions for the Intoxilyzer Source Code but are not actively pursuing analysis of the Source Code. At least forty (40) criminal defense attorneys have pursued Source Code Discovery but are not part of the coalition and have no plans to hire experts on their own to analyze the source code.

An attorney filing a Source Code Discovery motion must either retain an expert to analyze the source code on their own, or join the MSCJ Source Code Coalition.

Attorneys wishing to join the Source Code Coalition can click here for further information: MSCJ Source Code Coalition. Prosecutors and Judges wishing to confirm defense attorney membership can also check there. All MSCJ Source Code Coalition members are listed there.

MSCJ Source Code Coalition – Minnesota DWI Defense Lawyers Pool Resources to Discover and Analyze Source Code

Thomas Gallagher — Wed, 02 Sep 2009 02:41:20 +0000

: Minnesota’s Intoxilyzer 5000 Machine

MSCJ Source Code Coalition

The Minnesota Society for Criminal Justice (mscj) has led the way over the years in Minnesota Intoxilyzer 5000 computer source code discovery litigation, as have many of its individual members. Now that Minnesota state and federal courts are ordering Minnesota and CMI to provide accused persons with meaningful access to the machine’s source code, MSCJ is again taking a leadership role by forming a coalition of MSCJ member defense attorneys and other Minnesota DWI defense attorneys (including those who are not members of MSCJ itself) to share the costs and the benefits of computer software and infrared breath-alcohol machine experts and their findings.

If you are a Minnesota DWI Defense Attorney seeking to become part of the coalition, please visit the MSCJ Source Code Coalition page at www.mscj.org to download an application. Questions regarding Source Code Coalition membership may be directed to Lee Orwig at 952-224-4848 or lorwig@halbergdefense.com .

If you are a Judge or other person seeking to verify and identify Attorneys who are a member of the mscj source code coalition, and therefore who will have access to the Source Code Expert Work Product, please also visit the MSCJ Source Code Coalition page at www.mscj.org to see the most recent list. (Coalition members listed on the Coalition page, infra, inlcude all lawyer members of the Minnesota Society for Criminal Justice (mscj) which are list at the mscj defense lawyer member directory page at www.mscj.org .)

Members of the MSCJ Source Code Coalition are entitled to the final report generated from the MSCJ team of experts’ analysis of the Intoxilyzer 5000EN source code.

Minnesota Intoxilyzer Source Code Developments Discussed August 8, 2009

Thomas Gallagher — Sun, 09 Aug 2009 03:28:00 +0000

mscj members hear Jeff Sheridan on source code discovery issues on August 8, 2009

At the Saturday morning, August 8, 2009 meeting of the Minnesota Society for Criminal Justice (mscj), the group discussed actions to be taken to secure and analyze the computer source code for Minnesota’s Intoxilyzer 5000 breath-alcohol machine.

This was a major milestone, arrived upon due to success the hard fought in the court battles waged by mscj to force the State of Minnesota and the manufacturer of the machine CMI of Kentucky, to finally reveal their jealously guarded, secret source code.

For many years, the State of Minnesota has kept its breath-alcohol machine’s computer software secret – requiring people prosecuted by it to take their black box on blind faith and trust alone. Now, thanks to years of litigation by mscj members, and mscj as an organization, a Federal Court Order out of Minnesota derived from a court-approved settlement, requires the State and CMI to give up the software to the lawyers and experts working for the people it is prosecuting based upon the machine’s reports.

Of course, it will take more time and more money to get the best experts for the job to go to Kentucky to analyze the machine’s source code, and discover its bugs and flaws. Will Minnesota and CMI continue to obstruct access to the truth?

The Minnesota Society for Criminal Justice (mscj) has led the way in Minnesota on this issue for years, expending countless hours of volunteer, pro bono lawyer time, as well as tens of thousands of dollars. The group intends to see it through, and uncover the truth about the machine, though doubtless the cost of this effort will more than equal the cost so far.

Lawyers and legal service sorganizations throughout Minnesota are contacting mscj for guidance, asking to help in the effort and share in the cost and in the results of the source code defense expert investigation phase.

mscj members discuss source code investigation phase August 8, 2009