MN Wild


Criminal Law Section


Criminal Law Section Newsletter | December 2014

by Jennifer Carter | Dec 16, 2014

Council Recap


The Criminal Law Section Council met on Wednesday, December 5, 2014.  Following are some of the highlights.

1.  Continuing Legal Education.  Topics for upcoming Section CLEs include Firearms Restoration, Trial School, Everything But the Trial School, Expungement Update, and Interlocutory Appeals.  Contact the Council if you have ideas for additional CLE programs.  

2.  Upcoming Legislative Session. The Council voted to take a Section Only position in support of amending Minn. Stat.

§ 609.135 to reaffirm that probation can only be extended for purposes of nonpayment of restitution for a maximum of two years (one year at a time) as is currently provided in statute.  This proposal was developed in response State v. Barrientos, 837 N.W.2d 294 (Minn. 2013), in which the Minnesota Supreme Court read the procedure in subdivision 2(g) as one option available to the court, and utilized the more expansive authority in other sections of 609.135 to hold that a district court may extend a term of probation up to the statutory maximum punishment for the offense when a probationer fails to pay the full amount of restitution by the end of the originally imposed probation term.

News Items

At 70, Hennepin County Judge Robert Small Moves On To His Next Job
Star Tribune, November 28, 2014

The Honorable Robert M. Small is the new Executive Director of the Minnesota County Attorneys Association.  Judge Small retired from the Hennepin County Bench and began his tenure with the MCAAA on December 1. 

ABA Considering Resolution on Juvenile Life Without Parole Sentences

by Kelly Mitchell

This past October, the American Bar Association’s (ABA) Criminal Justice Section Council considered a resolution on sentences of life without parole as applied to juveniles.  The resolution urges states to:

  1. Eliminate life without the possibility of release or parole for youthful offenders both prospectively and retroactively; and
  2. Provide youthful offenders with meaningful periodic opportunities for release based on demonstrated maturity and rehabilitation beginning at a reasonable point into their incarceration, considering the needs of the victims.

This resolution comes on the heels of two Supreme Court cases impacting the sentencing of juveniles. In Graham v. Florida, the Court struck down life without parole sentences for non-homicide offenses, holding that states must give children a “realistic opportunity to obtain release.” 130 S.Ct. 2011 (2010).  In Miller v. Alabama, the Court struck down the mandatory imposition of life without parole sentences for homicide offenses, holding that a judge or jury must have the opportunity to consider mitigating circumstances before imposing “the harshest possible penalty for juveniles.” 132 S.Ct. 2455 (2012).

The resolution goes further than Miller in that it urges jurisdictions to eliminate life without parole as a possible sentence, even for non-homicide offenses, and element of the resolution that engendered a great deal of discussion within the Council.  Retroactivity – whether states should be urged to apply a new law eliminating life without parole sentences to individuals who were sentenced in the past – also engendered a great deal of discussion.

The Council expressed its view in the report accompanying the resolution that, especially for offenders getting a second look on a sentence that was originally life without parole, there is a need to balance the rights of the offender against the need for victims and/or their families to have closure regarding that offender’s sentencing.

The ABA Criminal Justice Section Council approved the resolution, which now moves to the ABA House of Delegates for final consideration at the midyear meeting in February.


Mark your calendar with these upcoming dates:

Criminal Law Section Council Meeting

Wednesday, January 7, 2015

5:00 p.m. (dinner provided)

MSBA Office


CLE - Restoration of Firearms Rights January 29, 2015

MSBA Office


Section Council Officers

Dan Adkins, Chair


Kelly Mitchell, Vice Chair

Richard Ohlenberg, Treasurer


Max Keller, Secretary


Jennifer Carter, MSBA Staff

Annual Report


MSBA Criminal Law Section
Annual Report

Section Membership
As of May 23, 2017, the Section has 675 members. 

Financial Status
The Section had an account balance of $11,467.05 as of May 23, 2017.

CLEs & Events
The Section hosted 5 CLE programs in fiscal year 2016-17.  

Program Title


Event Code

CLE Credits

Number of Attendees

Mistaken Eye-Witness Identification, A Tough Problem with Easy Solutions



1.0 Standard


Intersection of Chemical Dependency and Criminal Law



2.0 Standard


Crimmigration: Recent Trends (co-sponsored with Immigration)



2.0 Standard


Criminal Law 2017 Legislative Preview – What’s Coming Up



1.5 Standard


Everything BUT the Trial School



3.25 Standard


Criminal Law Trial School



4.75 Standard


Annual Meeting and Election Results
The Section’s Annual Meeting was held on May 3, 2017 and 10 people attended. 

The following council members were elected to serve on the Section’s Governing Council from July 1, 2017 to June 30, 2018: 

Dan Adkins
Landon Ascheman
Paul Baertschi
Camille Bryant
Alex De Marco
Barry Edwards
Rebecca Rhoda Fisher
James Gempeler
Dan Koewler
Brad Johnson
Kelly Martinez
Chad Miller
Kelly Mitchell
Rich Ohlenberg
Alina Schwartz
Gary W. Strootman
Aaron Welch
Thomas Wilson
Robin Wolpert

The following officers were elected to serve on the Section’s Governing Council from July 1, 2017 to June 30, 2018. 

             Chair:  Max Keller
             Vice Chair:  Joe Van Thomme
             Treasurer:  Anthony Bushnell
             Secretary:  Andrea Palumbo 

Diversity and Inclusion
What diversity and inclusion goals did the Section include in the 2016-2017 work plan, how did you approach these goals, and what was the result?

This is a complex issue as: there are many types of diversity such as: male/female, rural/urban, prosecutor/defense attorney, younger v. older attorneys, as well as participation by members of minority communities and people of color. Of course, participation in the MSBA’s Criminal Law Section is an entirely voluntary activity in Minnesota and is quite time consuming when added to all the other personal and professional responsibilities we have as attorneys.  So, not every attorney wants to or can find the time to participate even if that want to do so. 

At the start of the year, we decided to pursue an informal strategy of trying to recruit and involve more attorneys of color, and more prosecutors in our group.  At the Trial School held at the end of the year (May 4, 2017) which was our capstone event for the 2016-17 year, we had a wide of participants in the seminar including younger attorneys, female attorneys, attorneys from more rural counties and attorneys of color. So, I was very encouraged by the success of the trial school this year and by the diversity of the participants.    

Other Section Accomplishments

Along with the DWI Task Force, the Criminal Law Section spearheaded the changes that were proposed and passed into law by the Minnesota Legislature requiring that warrants obtained in blood and urine test cases. This resulting new DWI statute which is set to go into effect on July 1, 2017 reflects recent Supreme Court caselaw and brings the Minnesota DWI statute into compliance with that new caselaw.  Due to time constraints, we took a “Section Only” position in favor of passing the bill.  Members of the Section working in conjunction with the MSBA lobbyist, Bryan Lake, and with numerous other stakeholders, played a key role in getting the bill enacted into law. 

The new law also extends the time-period for filing a challenge to an alcohol related license revocation from 30 to 60 days and allows for a prescription drug defense at the implied consent driver’s license hearing. These changes to the law are new additions to Minnesota’s DWI law which have discussed for many years, but were never before enacted into law.  

In addition to the points made above about the diversity of the presenters at the two final 2016-17 seminars, in the Everything BUT Trial School and the final Trial School, I was very pleased that this year we used one set of facts for both seminars.  I believe this provided attendees with the most realistic Trial School exercise that we have ever hosted.  The case that we used was a DWI physical control case and is the type of case that attorneys practicing in the criminal law area are routinely required to take to jury trial within their first 2-3 years of practice and on throughout their careers.   

We had some excellent presenters and the Trial School had a very realistic feel to it.  I was also very pleased that some of the younger members, specifically Joseph Van Thomme, stepped up and did much of the organization, scheduling and cajoling to get the various presenters to show up and participate in the Trial School.  This shows that the Section has a broad base of active members which bodes well for the future of the Criminal Law Section. 

Respectfully Submitted By:

Richard Ohlenberg, Section Chair 2016-17