Get out the checkbook.  We can all afford to send something. 

Sgt. Joseph Bergeron Memorial Fund

City & County Credit Union

1661 Cope Ave. E.

Maplewood, MN  55109

I posted last week about an article in the Grand Forks Herald describing a case I tried in Federal Court.  That article was picked up by the Fargo Forum over the weekend.  This morning I took the time to read the comments after the article and was impressed by the understanding of most of those who posted comments.  One comment made reference to the maxim that it is better to let ten guilty men go free than convict one innocent.  This idea is a favorite among defense attorneys.  It is also the subject of an entertaining and interesting law review article entitled “n Guilty Men.”  This article describes various historical references to the idea that society will go without punishing the guilty to avoid harming the innocent.  The references are all too various numbers of guilty individuals going free to save innocent people from suffering. 

When I use this maxim in a discussion I rely on Benjamin Franklin.  (I never use this in the courtroom because it is like admitting your client is guilty.)  In a letter to Benjamin Vaughan dated March 14, 1785, Benjamin Franklin favors 100 guilty persons escaping to 1 innocent suffering.  The following is the entire fourth paragraph of Benjamin Franklin’s letter.  I have taken some liberties with the punctuation and capitalization: 

That it is better 100 guilty persons should escape, than that one innocent person should suffer, is a maxim that has been long and generally approv’d, never that I know of controverted.  Even the sanguinary author of the Thoughts agrees to it, page 163, adding well, that “the very thought of injured innocence, and much more that of suffering innocence, must awaken all our tenderest and most compassionate feelings, and at the same time raise our highest indignation against the instruments of it.”  “But,” he adds, “there is no danger of either from a strict adherence to the laws.”  Really?  Is it then impossible to make an unjust law?  And if the law itself be unjust, may it not be the very “instrument” which ought to raise the author’s, and everybody’s highest indignation.  I read in the last newspaper from London, that a woman is capitally convicted at the Old Bailey for privately stealing out of a shop some gause valued 14 shillings and threepence.  Is there any proportion between the injury done by a theft value 14s.3d. and the punishment of a human creature by death on a gibbet?  Might not that woman by her labour have made the reparation ordain’d by God, in paying four-fold?  Is not all punishment inflicted beyond the merit of the offence, so much punishment of innocence?  In this light, how vast is the annual quantity of not only injured but  suffering innocence, in almost all the civilized States of Europe! 

“Sanguinary” means bloodthirsty.  (I had to look it up.)

The Grand Forks Herald ran a story on Sunday, February 28, 2010, about one of my cases.  The headline is "A trial so tainted."  It’s a decent story about what transpired in the case.  The quotes could use some additional context, but the overall tone of the story is fair.

Minnesota's seat-belt law changed in June of this year.  The law now states that everyone in every seat in every vehicle must be wearing a seat-belt (with few exceptions).  

169.686 SEAT BELT USE REQUIRED; PENALTY.

Subdivision 1.Seat belt requirement.

(a) Except as provided in section 169.685, a properly adjusted and fastened seat belt, including both the shoulder and lap belt when the vehicle is so equipped, shall be worn by the driver and passengers of a passenger vehicle, commercial motor vehicle, type III vehicle, and type III Head Start vehicle.

(b) A person who is 15 years of age or older and who violates paragraph (a) is subject to a fine of $25. The driver of the vehicle in which a violation occurs is subject to a $25 fine for each violation of paragraph (a) by the driver or by a passenger under the age of 15, but the court may not impose more than one surcharge under section 357.021, subdivision 6, on the driver. The Department of Public Safety shall not record a violation of this subdivision on a person's driving record.

and it goes on...

It is important to understand what a $25 fine is.  If you were cited for this violation you would have to pay the $25, plus a $75 surcharge, which attaches to every fine paid in the State of Minnesota, plus a law library fee.  Law library fees vary from one county to the next.  Here in Otter Tail County the law library fee is $10.  Hence, "subject to a fine of $25" translates into you writing a check for $110.

Laws that purport to be for our own good always make me think of this C.S. Lewis quote:

It would be better to live under robber barons than under omnipotent moral busybodies. The robber baron's cruelty may sometimes sleep, his cupidity may at some point be satiated; but those who torment us for our own good will torment us without end for they do so with the approval of their own conscience. 

I received several phone calls in August from people saying:  “I got such-and-such a decision from Judge Whoever and its just not right.  What can I do about it?”  Under Minnesota Law, people in this situation can do several things.  In various circumstances a litigant can bring a post judgment motion.  Most final decisions of a court can be appealed.  If a judge acted improperly, litigants can file a complaint with Minnesota Board on Judicial Standards.  These three procedures are not an exclusive list of post-judgment activities, but they are the three procedures that I will discuss briefly below. 

Which of these procedures ought an aggrieved party pursue?  That is a question that can only be answered when all the relevant facts and circumstances have been described to a lawyer.  What follows is a very brief description of the mechanics of each.  It is not intended to be a guide on how to pursue any particular claim. 

Post Judgment Motion

Post judgment motions are only available by rule.  That means that you do not necessarily have a right to a post judgment motion.  If you do have that right, it is because a rule exists giving you the right.  Rule 60.02 of the Minnesota Rules of Civil Procedure is an example of this.  In addition to their limited availability, these motions will be heard by the same judge that that presided over the unfavorable judgment; hence, they are not often successful.   Post judgment motions are very time sensitive.  Many must be filed within 15 days of the judgment.  They should be undertaken by an attorney on your behalf. 

Appeal

Many decisions made at the District Court level in both civil and criminal cases can be appealed to the Court of Appeals.  Appeal can be a complex process.  It should be undertaken by an attorney.  Even the most sophisticated litigants could easily fall victim to costly missteps.  The most important thing to understand about appeals (aside from getting a lawyer involved immediately) is that they are very time sensitive.  In most instances, appeal may not be taken until a final decision resolving the case is made at the District Court Level.  Once that final decision is made, the litigants may have as little as ten days to file the appeal.  If the time period for filing an appeal runs, the right to appeal is most likely gone forever.  Litigants should also understand that appeals are expensive.  The filing fee is typically $550.  If it is a civil case, an additional bond of $500 will be required.  These fees are required to be paid to the court.  You can expect you attorney’s fees to be significantly in excess of these filing fees. 

Minnesota Board on Judicial Standards

Complaints against Judges are filed with the Minnesota Board on Judicial Standards.  A complaint should not be filed simply because you lost the case.  A complaint should be filed if you believe that a judge did something improper during your case.  In this instance, “improper” means a violation of the Code of Judicial Conduct.  Unlike an appeal or a post judgment motion, a judicial complaint cannot change the outcome of your case.  Rather, it is a mechanism to report judicial misconduct.  The Board’s website has instructions on filing complaints as well as statements about what you can expect, what the judge will be told, and what consequences the judge may face.  A judicial complaint can be filed without the assistance of an attorney.  If you feel that a judge acted improperly in dealing with your case, visit the Board’s website to determine if a complaint should be filed. 

None of the above options are exclusive.  It is entirely possible to file a post judgment motion, then an appeal, while at the same time filing a judicial complaint.  In any event, if you are calling a lawyer because you received an unfavorable decision from a judge, you should understand that the odds are already against you.  If you are going to pursue any of the above-described options, go into it understanding that you may not get any satisfaction.