1.  We should just put the criminals in prison and throw away the keys.

Easy to say and it certainly makes us feel good.  People have the impression that most criminals are “getting away” with their crimes and aren’t paying the penalty.  The media feed this idea since they only report the few cases where someone does beat the system.  The reality is that the majority of people charged with crimes are found guilty and do pay the penalty.

Question is, what should the penalty be?

My prosecutor friend brought up several recent empirical studies that show short, intensive punishment combined with rehabilitation efforts tend to have the best results.  Why?

Putting aside the serial murderers and career criminals, I believe it’s because simply locking people away can be counter-productive.  For many of them, the hardest part is when the doors to the jail slam shut.  After months or even years, the deterrent effect of incarceration drops off.  So, it makes sense to send people for a limited amount of time–with supervised probation and release afterward.

2.  Criminals will never change–there’s no hope they’ll reform themselves.

Some psychologists maintain that criminals are people who have chosen to live a life of crime and will continue to do so no matter what we do to them.  I’m not sure this is true all the time.  I think that most criminals balance the risks of getting caught with the rewards of crime.  I believe some can be persuaded to go straight.  The best persuasion is a combination of prison and probation.

3.  Many criminals are drug addicts who commit crime to feed their habits. No.  I would say in my own experience that the majority of crimes are committed when people are high–by far alcohol is the most prevalent–when they commit crimes but they’re not doing the crime to make money to supply themselves with drugs.  And for all the attention to dangerous drugs, alcohol still remains the most widely abused chemical substance that leads to crime.

4.  The crime news in the papers never seems to end–crime is up.  It’s definitely down, especially since a peak during the 1980’s as measured by the FBI.  Violent crime and all types of crime are down significantly.  Why does it seem the opposite?  The news media report criminal acts–not the drop in crime.

5.  “Get tough on crime” laws and longer prison sentences deter crime. I don’t think so.  In my experience dealing with defendants charged with crime, the last thing they think about is getting caught and certainly, they never think about penalties.  The one area that’s different is in drinking and driving crimes.  People do think about that when taking another drink.  But particularly for crimes of passion and anger, very few people stop to think about the penalties–therefore, I don’t think tougher penalties act as a deterrent.

What are you ideas?  Get tougher?  More probation?  More community service?  What can we do?

The post Five Myths about Crime Today appeared first on Colin T. Nelson.

Is this self defense or murder?

This situation really happened in Minneapolis and it’s troubled many people.  Let’s look at their concerns:

1.  The shooter is another example of “vigilantes.”  Untrained but armed citizens who “take the law into their own hands.”

2.  This is a Good Samaritan who tried to rescue a victim and stop the attacker.  He provided a public service, and when the attacker turned on him the rescuer acted in self-defense.

As a criminal lawyer myself, clearly the rescuer is within his rights to help the victim.  Also to try and recover the stolen purse.  To even chase the attacker.  He was also licensed to carry a gun.  But once the attacker turned and ran away, the rescuer doesn’t have a duty to chase him.  What about self-defense?

But he did choose to run after the attacker.

Under the law, this is considered a separate incident from the original crime.  At this point, if the rescuer uses force against the attacker, the rescuer may be committing the crime of assault.  Because the original crime was not directed at the rescuer.  Strange as it may sound, if the attacker feels threatened by the rescuer, he has a right to defend himself against the rescuer!

In Minnesota, the right of self-defense is defined as:

Taking of the life of another is authorized when necessary in resisting or preventing an offense in which the actor reasonably believes exposes the actor to great bodily harm or death to himself.

In the real case we have only the rescuer’s version since the attacker died from the gunshot.  It’s possible that either man acted in self-defense.  The rescuer could be charged with some level of homicide, although the prosecuting attorney has said he will not do so.

One concern that I have is the “vigilante” aspect of this incident.  For all I know, the rescuer acted as a Good Samaritan and only when he was threatened with death himself, reluctantly pulled out his own gun and shot the attacker dead.  But what if his intention from the start was to act as law enforcement, knowing he was armed and ready to shoot at the smallest reason?

As a society, we license law enforcement to use force—only after rigorous training and education about weapons and violent situations.  Most of us, even if we’re licensed to carry a weapon, lack similar training and may act in a rash, wrong, and deadly way.

What do you think?

The post Self Defense or Murder?? appeared first on Colin T. Nelson.

Technically, my job defending anyone is to force the State to prove their guilt beyond a reasonable doubt. If I have personal doubts as to my client’s innocence, I never even breathe the word “innocent.” Instead, I remind the jury to evaluate the State’s case; the defendant is presumed innocent by the system. The funny part is that I’ve rarely had a client admit they were guilty. Even if it looked pretty obvious, they maintained their innocence. And the more you get into a case, the murkier facts often become. So many times, I’m not sure who’s an innocent or guilty person.

Maybe the best way to let you know how this feels is to tell you a story of a case I tried several years ago.

It involved a young man, 17 years old, who was married. They were both poor and struggled to make ends meet. One night when the boy–I’ll call him Jim–came home after looking for a job during the day, he found his wife having sex with another man on the couch of their apartment.

Jim erupted in anger and pain. First, he kicked the other man out then turned on the woman. A fight started and he strangled her to death by choking her with his hands. That was gruesome enough but afterward, to divert attention from him–the obvious culprit–he stripped her body, spray-painted it in gang graffiti, and left her in the middle of an intersection to make it look like a gang crime.

After having been charged with Murder in the 1st degree, he was certified and transferred to adult court where I met him. Because the crime was so heinous and the proseutor’s case was so strong, they didn’t offer Jim any kind of a plea bargain. Like any person looking at life imprisonment, Jim found it hard to plead guilty, even though he eventually admitted he killed her. We set the case for trial, which was his right to demand.

From my standpoint as his lawyer, sometimes the charging decision made by the prosecutor does not fit the crime. In other words, maybe the accused person is not guilty of Assault 1 but is guilty of Assault 3, a lesser crime with a shorter penalty. That was the strategy in Jim’s case. I had two goals: maybe the jury would have sympathy for the young guy and convict him of something less serious or the facts, as determined in a trial through the witnesses, wouldn’t warrant the full Murder 1 conviction. So, we launched into the trial with this crime of the heart.

When the Medical Examiner who’d performed the autopsy on the victim testified, he broke the case wide open–to Jim’s favor.

Since I hate to write lengthy blogs, I’ll pause for now and continue the story with my next one.

The post How can you defend a guilty person!? Part 1 appeared first on Colin T. Nelson.

What is profiling?  Is it really bad?  Here are four thoughts from all the years I’ve worked as both a prosecutor and Public Defender.

Profiling means that citizens are stopped by law enforcement—not because of suspected criminal behavior, but instead because of the person’s race, gender, or the way they walked.  For years, courts and legislatures have allowed police to stop suspects if the police “have a factual basis to think a crime has been committed.”  A good example is a cop who follows a car that weaving from side to side in the lane.  The cop can suspect that the drive may be intoxicated and therefore, can legally stop the driver to investigate.

1.  We all do it.  All of us do our own “profiling” every day.  It’s based on a life time of experience and learning.  Often, it helps us avoid dangerous situations—or dangerous people.  TSA screeners use profiling all the time at airports.  The difference when law enforcement uses profiling is they have state-sanctioned power to arrest people.  None of the rest of us have that power.

2.  Racial profiling.  Statistically, it’s been shown that people of color (and heavily male) are stopped much more often that while males—even though the same statistics show that people of color don’t commit any more serious crimes than whites.  Clearly, there’s some amount of racial profiling going on with law enforcement.

3.  High crime areas.  Many residents of high crime areas ask for more police presence.  And they also support more arrests for “nuisance” crimes.  (These are petty offenses like loitering, disorderly conduct, curfew violations, etc.)  This law enforcement profiling has the effect of cleaning up the streets by getting bothersome people out of the neighborhood—who may commit more serious crimes.  Gangsters, drug sellers, etc.  People in these high crime areas fully accept law enforcement profiling as they feel it helps keep crime down.

4.  White don’t know.  Some people have been surprised at the length and intensity of the protests that have occurred across the country against police violence.  Although populated with white people as well as people of color, I don’t think us whites can fully understand the fear, humiliation, and stress that profiling causes to many of our citizens.  Almost every middle-class black male I know has told me horror stories about being stopped and the fear they felt, not knowing what might happen to them—simply because of the law enforcement profiling.

The post Is Law Enforcement Profiling Bad?? appeared first on Colin T. Nelson.

I’ve represented white collar criminals in my years as a criminal defense lawyer  Here are five things that may surprise you:

1.  Many white collar criminals are great con men and sociopaths.  The definition of a sociopath is a person who lacks a conscience.  They can lie easily and do!  You’ve probably met a few.  An good example is Bernie Madoff.  He lied to some of the richest, smartest people in the world—and got away with it for a while.  It’s a trait shared with other white collar criminals.

2.  When it comes to white collar criminals vs. street criminals, most white collar criminals are smarter.  The street thugs commit criminal acts of violence because they’re not smart enough to be successful at anything else.  Violence is dangerous.  White collar crime is rarely dangerous.  And because they’re smart, white collar criminals often are not caught.

3.  As clients, they are demanding, questioning, and interfering with their defense.  I don’t mind client’s questions and I want them to participate in their defense.  Since most white collar criminals are also sociopaths, they thing they know everything.  They’re some of the toughest clients to defend.

4.  Because the really smart ones almost always go to financial fraud, the evidence can be extremely complicated and confusing.  Thousands of transactions, e-mails, paper documents, and hundreds of witnesses may be required to prove the white collar criminal guilty.  That makes it hard.  Jurors don’t always understand the details and may find these criminals Not Guilty as a result.

5.  Do white collar criminals get off easier?  In our country, violent crimes are always punished more harshly.  Even if a white collar criminal has ruined the financial lives of dozens of people, the sentencing guidelines in my state, Minnesota, often give probation to these offenders.  It’s only after several convictions before they’re sent to prison.

Do you have family or friends who have been white collar criminals?  Let me know about them and their stories.

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