What were the biggest legal stories of the year?
Of course, that’s a subjective judgment and, given the confidentiality of so much that occurs in legal realm, it’s virtually impossible to claim that any list is definitive.
But poring over a year’s worth newspapers, these stories stood out.
Supreme Court’s changing face
In making judicial selections, Gov. Mark Dayton has made no secret of the fact that he places a high premium on diversity. That emphasis was reflected by his two appointments to the Minnesota Supreme Court in 2016: Margaret Chutich, who became the court’s first openly gay justice, and Anne McKeig, its first Native American.
With those picks, the Minnesota Supreme Court has more women than men for just the second time in its history. Just as notably, Dayton appointees now constitute a majority on the court.
McKeig’s role as an ethnic trailblazer may prove less significant than another aspect of her background: Unlike her colleagues on the high court, she arrived on the job with first-hand experience as a District Court judge.
“The Supreme Court sorely needed somebody with trial court experience,” Robert Blaeser, a retired Hennepin County judge who mentored McKeig, told Minnesota Lawyer at the time. “She’ll have an impact because she has been in the trenches. She’s tried cases in juvenile court, criminal court, and family court.”
Age of innocence
On a cold winter night last January, a standing-room only crowd packed a Minneapolis taproom to listen to Dean Strang, a criminal defense attorney from Madison, Wisconsin, who, a month earlier, was unknown to virtually everyone in the room. Earlier that day, the mild-mannered, bespectacled Strang got the same rock star treatment at the Capitol, where lawmakers queried him about his views on flaws in the criminal justice system.
Strang owed his instant celebrity to his appearance in the Netflix blockbuster “Making a Murderer,” which made a compelling case that his former client, Steven Avery, was — if not innocent — railroaded into a murder conviction.
For veteran defense lawyers, of course, the notion that the “system” is stacked against defendants isn’t breaking news. But the passions engendered by “Making a Murderer” underscored a sea change in public attitudes about the reliability of criminal convictions.
For some Minnesota attorneys who championed innocence cases, 2016 was a pretty good year. In March, Ed Cassidy, leading up a pro bono team from the Minneapolis firm of Fredrikson & Byron, prevailed spectacularly at the U.S. Supreme Court in a seven-year legal fight on behalf of a Louisiana death row inmate Michael Wearry. In an unusual ruling, the high court overturned both Wearry’s death sentence and the underlying murder conviction on a summary judgement motion.
Two months after that, the Minnesota Legislature authorized $1.7 million in compensation to three men who were exonerated of crimes for which they’d been imprisoned. Those unprecedented payouts were the result of legislation championed by the Minnesota Innocence Project.
The Innocence Project scored another victory in September when it negotiated the release of a longtime client, Terry Lynn Olson, who was convicted at trial in 2007 of second degree murder in connection with the 1979 death of a man who was found dead along a rural road in Wright County.
Olson’s legal team, led by Maslon partner David Schultz, contended that the “victim” was probably killed by a passing a vehicle and pointed out that the key witness against Olson repeatedly recanted his testimony. While Olson was not exonerated, under the terms of a stipulated agreement he was freed 11 years into an anticipated 17-year sentence.
Drug sentencing reform passes
These days, anyone who argues our political system is fundamentally broken doesn’t have to break a sweat to make a pretty compelling argument. Consider, for instance, the 2016 Minnesota legislative session, where squabbling lawmakers were unable to reach accord on the one thing everyone agreed at the outset was the top priority — a comprehensive transportation funding package.
There was one very notable exception to the partisan gridlock. For that, the bar can take a bow.
In the most consequential overhaul of Minnesota’s drug laws in over a generation, the 2016 Drug Reform Act increased the weight thresholds for first- and second-degree drug offenses and trimmed presumptive sentences for many low-level drug crimes. At the same time, it increased penalties for so-called “kingpins” and creating some new aggravating factors.
The end-of-session deal was hammered out in negotiations between the Minnesota County Attorneys Association, the defense bar, and the police lobby. When the dust settled, nobody was entirely pleased. As many of the participants noted at the time, that is one hallmark of a true compromise.
How did it get done? Lawmakers of all stripes had incentives to climb aboard the reform train. For one, the new law is expected to reduce the need for about 850 prison beds — a boon into a time of chronic prison overcrowding. Even committed drug warriors had reason to vote yes because, absent passage, the Sentencing Guidelines Commission was poised to implement changes that would have resulted in even greater reductions in sentences for some offenses.
More lawyers behaving badly
When the Office of Lawyers Professional Responsibility released its annual report this July, the numbers stood out. In the previous year, the OLRP reported, the Minnesota Supreme Court had publically disciplined 65 attorneys, surpassing the previous all-time high of 55 from a quarter-century ago. More notably, the high court suspended the law licenses of 47 lawyers, blowing away the previous record of 27.
In keeping with past patterns, attorneys most often got in trouble over violations of Rules 1.3 and 1.4 of the Rules of Professional Conduct, which relate to diligence and client communication. Among the six lawyers who received the ultimate sanction and were disbarred, the transgressions ranged from misappropriation of client funds, Convictions for fraud and money laundering, and, in one case, having sexual relations with a client.
Does the record number of suspensions represent a new norm?
In the view of most experts, including OLPR director Susan Humiston, a single year’s data isn’t enough to draw a conclusion. And as jarring as the totals may look compared to prior years, the number of “bad lawyers” still remains miniscule in relation to the other 28,000 Minnesota practitioners who didn’t get spanked.
After ‘Bernard,’ clarity comes to DWI law
For years, Minnesota’s drunken driving laws have been subjected to innumerable challenges. That’s not a surprise, given the volume of prosecutions. About 25,000 drivers are charged with drunk driving or test refusal annually.
But the pace of appellate litigation accelerated dramatically in the wake of Missouri v. McNeely, the 2013 U.S. Supreme Court decision which stood for the principle that, in most circumstances, police must obtain a warrant before taking a blood sample. After McNeely, the Minnesota’s appellate courts were awash with challenges to the state’s implied consent law, which criminalizes drivers for refusing to submit to chemical tests even when there is no warrant.
In June, the U.S. Supreme Court further refined its DWI jurisprudence after consolidating a case out of Minnesota — State v. Bernard — with two cases out of North Dakota. Defying the predictions of some experts, the court ruled that the Fourth Amendment prohibition against warrantless searches doesn’t extend to suspects like William Bernard, who was convicted of test refusal for not supplying a breath sample.
In the view of the court’s 6-2 majority, that is because a breath test doesn’t implicate the same privacy interests as a blood draw.
Wetterling mystery resolved with unusual plea bargain
On Sept. 6, as U.S. Attorney Andy Luger ended a quarter-century-old mystery and laid out the events the led to the discovery of the remains of Jacob Wetterling, he paused to say a few words about the defense lawyers who brokered the bombshell plea deal.
“They were professional, they operated with the highest integrity and, without them, we would not be here today,” said Luger, referencing Katherian Roe, the chief federal defender for Minnesota, and Reynaldo “Reggie” Aligada Jr., assistant federal defender.
Such praise for the defense, coming from the mouth of a prosecutor, was unusual. So was the plea bargain that prompted it.
Under the terms, Danny Heinrich, the 53-year-old Annandale man who led police to the farm where he buried the 11-year-old Wetterling back in 1989, copped to a single count of receipt of child pornography.
In exchange, the government dismissed 24 additional child pornography counts and — in the hold-your-nose concession — agreed that Heinrich would not be charged in state or federal court with Wetterling’s abduction, sexual assault or murder. Both Heinrich and the government stipulated to an upward departure at sentencing and, in November, he was sentenced to a 20-year prison term.
How unusual was the plea bargain?
“There are no analogous cases,” opined veteran criminal defense attorney Joe Friedberg. “But I think it’s an absolutely great disposition. It’s the product of a group of really outstanding lawyers which took some cooperation and creativity from everybody.”
More changes come to legal education
Law schools have hit some rough patches in recent years, although not as rough as some of their graduates. Remember 2008? After that, shrinking enrollments, reduced bar passage rates, lower U.S. News and World Report ratings and unemployment became the new norm. People started talking about “alternative careers” for lawyers.
Minnesota’s three law schools have been forced to move quickly to adjust.
Mitchell Hamline is the creation of the merger of William Mitchell College of Law and Hamline University School of Law. The ABA approved the move a year ago, and January 2016 saw the first students on the new campus at 875 Summit Ave. The first entering class in the fall of 2016 was larger than the previous two schools’ classes combined.
Dean Mark Gordon has said that the school is creating the 21st century model of legal education. To him, that means a curriculum that stretches far and wide but still centers on core concerns of preparing students for the careers they want while also being engaged in community service and social justice issues. At Mitchell Hamline, client skills and career development are an integral part of the students’ entire education, Gordon said.
The University of Minnesota cut its entering class size but its new dean, Garry Jenkins, said he was optimistic about legal education and plans to builds on its strengths. “Law schools like this one may be smaller than we’ve been in the past but that doesn’t mean we can’t be stronger,” he told Minnesota Lawyer last summer when he arrived.
And stronger encompasses good job opportunities. “We’re about setting students up for their entire career. A law school like this, that attracts the best and the brightest, can think about how to prepare law students to be lawyer/leaders for the generation. I do think schools needed to right-size and make sure the market can give them the opportunities students expect and want,” he said.
At the University of St. Thomas School of Law, the class of 1Ls has grown relative to recent years. Dean Robert Vischer, said legal education is stabilizing.
St. Thomas reacted to the legal education predicaments by focusing on providing value for students’ dollars. The National Jurist rated it in the top 10 of private law schools in the country for value, defined as a combination of employment, student debt and bar pass rate figures. The school topped the other Minnesota law schools last year in employment and is rated No. 1 in the country for externships by PreLaw Magazine and No. 2 by The National Jurist for best practical training, with 11 clinics. But the school is still looking hard at its bar passage rates and how to help at-risk graduates.
Prosecutors eschew grand juries in police shootings
The entire state of Minnesota was rocked by police shootings and 2016 saw two terrible incidents.
Jamar Clark, 24, was shot by Minneapolis police officers on November 15, 2015. A fight allegedly broke out at a birthday party, an ambulance came for Clark’s girlfriend, Clark was asked to step away from the ambulance and was then shot. Accounts differ. Clark may have been resisting arrest, or not; he may have tried to take an officer’s gun, or not; and may have been handcuffed, or not.
Days and days of protests and an encampment outside police north precinct headquarters ensued. The Department of Justice was called in and the FBI investigated, as Black Lives Matter wanted.
Hennepin County Attorney Mike Freeman did not refer the case to a grand jury. Additionally, law enforcement did not release certain videos of the event and did not have any video from police car or body cams.
On March 30, Freeman said his office would not charge the police officers. He said that evidence showed that Clark was not handcuffed at the time of the shooting and that Clark had no marks on his wrists. He said the evidence supported the officers’ accounts that Clark had a hand on an officer’s gun and would not let go.
Freeman also said that one of the officers had pulled Clark to the ground by his neck, a move that was “not favored” by the police department.
In the following days, five protesters were shot but not killed by counter-protesters. Four men were charged.
Federal authorities also declined to pursue the matter.
A different result ensued after Philando Castile was shot on Larpenteur Avenue in Falcon Heights on July 6, 2016. Castile was pulled over for a broken taillight. He told the police he was carrying a weapon and had a license. His girlfriend taped the encounter where Castile reached into his pocket to get his driver’s license and police shot him. The officer was afraid Castile was reaching for a gun, he said.
Gov. Mark Dayton said that Castile likely would not have been killed if he were white. Some police were not happy about that.
Ramsey County Attorney John Choi brought in attorney Don Lewis to assist in the inquiry and he was called a special prosecutor in news reports. Lewis came on board at the end of July. On Nov. 17, Choi announced that St. Anthony Police Officer Jeronimo Yanez faces three criminal charges for the killing of Philando Castile. The charges were two counts of dangerous discharge of a firearm and one count of manslaughter. No reasonable officer would have used deadly force under those circumstances, Choi said. Defense attorney Thomas Kelly said Choi’s comments “overstepped.”
Yanez made his first appearance on Nov. 18 and was released on his own recognizance. He is due back in court on Dec. 18.