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MSBA Criminal Law Section
Annual Report

2017-18 

Section Membership

As of 05/31/18, the Section has 632 members.

Financial Status

The Section had an account balance of $7,948.28 as of 5/31/2018

CLEs & Events

The Section hosted 5 CLE programs and 1 Social in fiscal year 2017-18. 

Program Title

Date

Event Code

CLE Credits

Number of Attendees

Immigration Consequences of Criminal Charges- What to Keep in Mind When Representing Non-Citizens

11/8/2017

248808

2.00 Standard

57

Criminal Law Legislative Preview 2018- What’s Coming Up?

1/16/2018

251254

1.50 Standard

23

Probation Revocations From Both Sides: Probation, Prosecution, and Defense Considerations

3/14/2018

251635

2.00 Standard

171

Criminal Law Trial School

5/11/2018

256264

4.75 Standard

60

DWI, Veterans, and Drug Treatment Courts in Minnesota + Annual Meeting & Social

6/6/2018

257067

  1. Ethics
  2. Standard

33

 

Annual Meeting and Election Results

The Section’s Annual Meeting was held on 6/6/18 and 11 people attended. 

The following council members were re-elected to serve on the Section’s Governing Council from July 1, 2018 to June 30, 2019:

  • Dan Adkins
  • Camille Bryant
  • Alex De Marco
  • Barry Edwards
  • James Gempeler
  • Dan Koewler
  • Chad Miller
  • Kelly Mitchell
  • Richard Ohlenberg
  • Alina Schwartz
  • Thomas Wilson
  • Robin Wolpert
  • Max Keller

The following council members were elected to serve on the Section’s Governing Council from July 1, 2018 to June 30, 2019:

  • Alexis Watts
  • Satveer Chaudhary
  • Graciela Gonzalez
  • Ryan Garry
  • Nick Wanka

The following officers were elected to serve on the Section’s Governing Council from July 1, 2018 to June 30, 2019:

Chair: Joe Van Thomme
Vice Chair: Anthony Bushnell
Treasurer: Andrew Palumbo
Secretary: Landon Ascheman

Diversity and Inclusion
What diversity and inclusion goals did the Section include in the 2017-2018 work plan, how did you approach these goals, and what was the result?

We had one person of color on our section council, which is an improvement over recent years. We also have a woman on the executive committee/officers, which is an improvement over recent years. (There has been a woman chair of the Section within the last 15 years or so, but not many women officers since then, if any).   We have also been striving for diversity in other areas, such as getting more outstate/rural attorneys involved in the section. In addition we have been strategizing on how to get younger people, including but limited to law students, involved in the section.   We did have law students attend two of our meetings this year. As part of our outreach to law students and law schools, for the second year in a row, we continued a tradition started by last year’s chair Rich Ohlenberg, of having one monthly meeting at an area law school.  At this year’s meeting at Hamline/Mitchell law school, about a half-dozen law students attended and were able to see us discussing legislative issues such as revisions to the DWI laws, and other business.    

Other Section Accomplishments:

As noted above, we put on a very good year end CLE which was the Trial School, and it was well attended and attracted a variety of speakers/lecturers/participants.  Joe Van Thomme, who is one of our younger members, did an excellent job organizing the trial school.  As also happens almost every year, we devoted a significant amount of time on exigent legislative issues. These issues, by their nature, often come up unexpectedly or at unpredictable times, which short time lines for written response, testimony, etc. Three Significant legislative or policy issues we were involved in this year are as follows:

Proposals to Amend DWI Laws:
One legislative issue we were dealing with this year was proposed legislation to amend the DWI laws dealing with driving while under the influence of a hazardous substance. Previously the law defined a “hazardous substance” as one on a specific list promulgated by a state agency or the Legislature. The problem exists, of course, that persons are always finding new substances to use and abuse. Thus, any list quickly becomes out of date as soon as it is promulgaged. In addition, the chemical structure of many substances, which may have beneficial as well as harmful uses, may be easily slightly altered without changing the pernicious/addicting quality of the substance. Accordingly, the substance no longer appears on the “list” because its chemical structure has been slightly altered but its negative/intoxicating effects remain the same. 

The conundrum of the need to frequently amend a constantly outdated “list” of “hazardous substances” led the DWI task force (an organization of prosecutors, police officers, government officials, citizens, and defense attorneys) to propose changing the law to prohibit driving under the influence of an “intoxicating substance” without regard to a defined list of such substances. The Criminal Law Section was asked by legislators as well as the DWI Task force to take a position on the Task Force’s proposed legislation, which legislation evolved over time, as is the nature of the legislative process.  The Section did not have a consensus on whether we favored or opposed the proposed legislation. Members recognized the need to remedy a gap in the law highlighted by the “dust-off” case in which the court of appeals ruled that the State was unable to prosecute under existing law a driver who intentionally inhaled cans of “dust-off” (used to clean dust from keyboards and others surfaces), and drove in a dangerous manner while under the influence of the substances in Dust-off. However, some members expressed due process concerns caused by the lack of specificity in the proposed bill.  Namely, the bill did not put drivers on notice of specific substances or chemicals they should avoid to prevent themselves from breaking the law while driving.  Members also expressed concern about lack of a mens rea requirement in the law, namely whether a driver should be required to be “knowingly” under the influence of an “intoxicating substance” while driving, in order to be found to have broken the law. Ultimately, the bill was altered to add more of a mens rea requirement than it originally contained.  The Legislature did pass the amended proposal into law. 

Thus, while we did not take a position on the bill, we did further the legislative process by providing our input to other stakeholder on two areas of disputed language in the proposed law and thus influencing the final legislative language. 

Cameras in the Courtroom
The Section also had an opportunity to weigh in on the “cameras in the courtroom” debate and proposed legislation to limit the length of probation for certain (not all) felony offenses. 

The Cameras in the Courtroom debate is one upon which the Council previously made its feelings known relatively recently, back in 2014-15. At that time, the Minnesota  Supreme Court had proposed a pilot project to allow audio and video recording of criminal court proceedings, ultimately limited to sentencing only, and to evaluate the results. The Section weighted in against the pilot project back in 2014-15, taking a Section only proposal due to a lack of time for the MSBA as a whole to take a position.  The Criminal Law Section testified against the proposal in December 2014 before the Supreme Court.  Ultimately, the pilot project allowing audio/video recording by the press of criminal sentencing without the consent of either party was approved for a two-year trial which took effect in 2015.

This year, in January, 2018, we were asked for our views of the Supreme Court Criminal Rules Advisory Committee’s report on the pilot project, including its proposal to make permanent the pilot project. The consensus of the Section amongst both prosecutors and defense attorneys, just as in 2014, was against cameras or audio recording in the courtroom. We filed our written objections with the Supreme Court. We were also able to convince the MSBA as a whole to weigh in against the pilot project, unlike in 2014 when there was not enough time to have the MSBA Council vote on taking a position. Because we were able to get the MSBA Council to go on record against the proposal this year, MSBA President Sonia Miller-Van Oort testified in front of the Supreme Court against the proposal, as did our Section Chair, Max Keller.   The Supreme Court has yet to make a decision on the Advisory Committee’s proposal to make the pilot project permanent.  

Limiting the Length of Probation:

The final legislative initiative we dealt with had to do with a proposal by the Robina Institute of the University of Minnesota to limit the length of probation for various crimes, excluding criminal sexual conduct crimes. We adopted the Robina proposal as a Section, which seeks to bring Minnesota more into conformity with other states with regard to the length of probation. Many states limit the length of felony probation to 5 to 10 years, whereas Minnesota currently allows imposition of a felony term of probation up to the length of the maximum sentence for the offense, which means that, at least in some counties, 20 to 30 year probationary terms are common, especially in cases where the presumptive sentence would be a prison sentence, but the defendant receives a downward departure sentence with no prison time, but local jail time instead. This also points out another problem with current Minnesota sentencing practice, which is that the length of felony probation varies widely from county to county and from judicial district to judicial district. So, for example, Hennepin County routinely imposes three-year felony probation for presumptive stayed prison sentence cases, whereas some other counties routinely impose ten to twenty years of probation for the same crime and criminal history. 

Due to opposition from the County Attorney’s Association, and others,  the MSBA Council decided not to take an MSBA-wide position on the Robina proposal, which was introduced in the Legislature by several members. However, Kelly Mitchell,  a recent past-Section Chair, and I both attended several meetings regarding the proposal. Since the County Attorney’s Association believed that more research was needed on the issue, the Legislature did not hold hearings or otherwise act on the proposal. 

Submitted By:

Max A. Keller, Section Chair

6-27-18               _/s/ Max A. Keller