The purpose of the hearing is for both the prosecution and the defense to present evidence about the accused and/or crime that would affect the decision on sentencing. For the defense, often the evidence comes in the form of something called character witnesses. These are people who are familiar with the defendant. Hopefully, their testimony will persuade a judge to give the defendant a less severe penalty.

When Mr. Biber’s defense lawyer called the first character witness for him, the prosecution went after the witness with a vengeance. See the article in the Star Tribune athttp://www.startribune.com/local/west/105250758.html?elr=KArksUUUoDEy3LGDiO7aiU

Just what is a character witness anyway?

The Rules of Evidence in Minnesota allow either side to offer evidence through many different paths, including a character witness. I’ve never seen the prosecutor use one, but it’s common for defendants to call character witnesses. Most people assume these witnesses will testify to how wonderful the person (defendant) is, but the Rules limit the witness’ testimony to specifics examples of the defendant’s reputation for things like honesty or reliability.

Typically, the witness would begin their testimony by detailing how they know the defendant and for how long. They’re asked eventually, “what is the defendant’s reputation for truthfulness or honesty?”

After the witness testifies, the prosecution has the opportunity to cross-examine which is what happened in the Aaron Biber trial. The prosecutor lashed into the witness by repeatedly asking him if he knew of the sordid details of the crime Mr. Biber had pled guilty to.

This is the common and proper way for the opposing counsel to proceed. For instance, if the character witness has said the defendant is truthful, the prosecutor could ask that in light of the fact the defendant lied initially about his sexual involvement with a child, would that change the opinion of the character witness? In the Biber case, the prosecutor brought up several instances and facts that cast doubt on the character of Mr. Biber.

End result called by yours truly, the “legal referee:” what the prosecutor did was proper and part of their job. Usually, the prosecution doesn’t go to the lengths this one did, but it’s still okay to do so under the court rules.

What do you think about it?

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I’ve written lately about the convictions of con men–one locally in Minneapolis, Tom Petters and of course, Bernie Madoff. As a criminal defense lawyer, I’ve represented con men in the past. In my last post I suggested that one of the reasons they are successful is that their “victims” are willing partners.

What?

I’m not talking about charitable foundations, elderly people, or naive people who didn’t understand what they were getting into. I’m thinking of those wealthy people that both these con men sought out at country clubs and business networks. These are people who usually investigate the way they spend their money carefully. But in the case of these scams, the investors didn’t look much at all.

Why? Greed is a big factor.

All of us want to “get in on” the inside track of investing to make a huge score that we couldn’t ordinarily get from our 401k’s. The con man offers that illusion and if questioned, even backs it up with phony numbers. Usually, these types of investors turn over every rock to make sure what they’re putting their money into is legitimate. But they didn’t do that.

Of course, the skill of a con man is to build up trust so that investors will specifically not check out the deal as carefully as they normally would do. Still, when greed starts to rise, any of us can ignore the safeguards we put into place to protect us.

The con man bears the blame for the crime but doesn’t it make sense that smart, savvy investors, driven by greed should bear some responsibility? Their greed led them to give the crooks their money without much questioning. Or maybe once the scam breaks open, we should make sure the naive and uninformed victims get compensated first with whatever’s left. The sophisticated investor goes to second place in the recovery.

I know this sounds opposite to every idea we have about victims and their rights but these scams are different crimes than others that could only occur because greedy people think they’re getting on the inside track to make big money. Shouldn’t they bear some responsibility?

What do you think? Should we treat these “victims’ differently?

Check out my web site at: www.colintnelson.com

The post Should Victims Pay? appeared first on Colin T. Nelson.

Ponzi scheme tycoon Tom Petters was just convicted here in Minneapolis. Along with guys like Bernie Madoff, he stole billions of dollars. What I always wonder, and you may also, is:

How do these guys get other normal people to give them so much money? I have a hard time just getting my friends to buy me coffee!

As a criminal defense lawyer, I’ve represented con men over the years although not as big as these guys. I’ve talked to and cross-examined the victims and think there are three reasons con men can wiggle dollars out of tight places.

1. Trust The fundamental factor to start everything. The personalitites of con men are attractive and trustworthy anyway. They purposely sell the sense of trust right from the start. Remember, these guys don’t go door to door asking for money. After a few great scores (that may be legitimate) the clients rave about how good the con man is at making money for them. They refer to their friends and business people.

2. Exclusivity Any of us can call an 800 number to Fidelity or T Rowe Price and make an investment. (these are both good companies, by the way!) Imagine how flattered you’d feel if you were referred to someone who could do better by far, than the investments the “public” had to limit themselves to? This idea of an exclusive deal that only a few select people get access to–and there is usually a limited time to take advantage of the great opportunity–is very attractive to most of us. To be a member of the group that gets the “inside” track on investing is powerful and the con man knows that. There’s a little bit of arrogance here, on the part of the investor. The idea that the investor doesn’t have to swim with the masses; they have a superior opportunity.

3. Greed This is the ultimate hook the con man pulls on. Underlying the two previous reasons is the human factor of greed. The chance, the hope, the long shot that you can make a killing–combined with the trust established and the small group of “lucky” people chosen to get in on the great deal–pushes most people over into the con man’s grasp. When you see the results from the first few who introduced you, your eyes began to water.

I guess that leads to an interesting follow-up idea: if the investor is partly to blame, should that be taken into account during a trial of a con man or during the sentencing? After all, the con man couldn’t have committed the crime without a “willing” victim. What do you think?

The post How Did Madoff and Petters Do It? appeared first on Colin T. Nelson.

Although I don’t know Mr. Petters, I’ve worked as a criminal defense lawyer for over 30 years and have represented/defended a few criminals like Petters but never anyone stealing such big. amounts. Unlike other criminals types, these guys have a unique personality type that’s fascinating. In addition, I had an uncle (long dead) who operated several scams and Ponzi schemes in the Twin City area before he was chased out of town. I remember him well.

SKILLS; Most of these types are very attractive–physically and personally. You can’t help but like them. They’re wonderful salesmen with all the skills of the best. Charming and persuasive, they could lie big–without even a tug from their conscience. Almost all were smart even if they weren’t well educated.

ATTITUDE: My uncle and others I’ve represented, shared an attitude that combined arrogance with ambition–not unusal in many people. The difference was the con men couldn’t wait for their ambiitons. They couldn’t take the time and effort necessary to build a legitimate business. Instead, they deserved immediate success. Most thought they were smarter than others, therefore they didn’t have to wait like the rest of us to grow their businesses.

Many came from poorer backgrounds and I suspect they harbored a deep suspicion that since things were stacked against them anyway, they may as well steal to get what they deserved. Each sucker or victim they conned represented a score against the “system” the con men were trying to beat–like a game. Another skill was the ability to lie convincingly to anyone. The more intimidating the challenge, the greater the “game” was to the con man.

SECURITY: Obviously, they coudn’t invest the money they stole so they spent it lavishly. Security was irrelevant to them–they didn’t have any except for their brains and guts to pull off the next con. I can’t think of many friends who could live peacefully without some security. Imagine the type of person who has only their ability to score another con for tomorrow’s food.

Surprisingly, the defendants I’ve represented readily admit their crime when confronted but have always had an excuse or a lie about how things happened to avoid the penalty.

Do you know anyone like this? What’s their story? Tell me about the personalities.

Go to my web site at www.colintnelson.com

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Last summer, a father played with his wife and three kids at a local amusement park. About midnight, they started to leave when seven men surrounded his daughterl, tapped her in the head with an inflatable bat and made comments. The 41 year old suburban father yelled at the group who then turned to attack him. Viciously, they hit and stomped him into unconsciousness before his family. He sustained permanent damages. It’s been covered several times by the StarTribune at www.startribune.com, Aug. 5,2009.

Yet the perpetrators, who pled guilty under a deal with the Scott County Attorney, received probation with about four months in the workhouse. The Victim and his family approved of the deal.

As is required in all felony cases in Minnesota, each man went through a pre-sentence investigation where most of them made excuses for what they did. “Wrong place at the wrong time” to describe how they “accidentally” got involved in the beating. Their defense lawyers continued by telling the sentencing judge the victim’s name hadn’t been released so the client couldn’t apologize and another complained of the “biased” media coverage against the client.

Having practiced as a defense lawyer for years, I’ve been in this exact spot many times: representing a person who has committed a reprehensible crime but still required, as the defense lawyer, to advocate for leniency. Let me tell you–it’s a tough spot to be in!!

Although most states have Victim’s Rights laws which give the victims an opportunity to participate in the resolution of cases, short of trial, I still feel sorry for many of them.

Is it the crush of caseloads that make it difficult for judges and prosecutors to get appropriate sentences, is the crowding of jails and prisons the reason? Are the defense lawyers too good for the prosecutors? Are we more worried about the defendant’s rights than the victim’s rights?

Here’s the irony: so many people were outraged by this incident and demanded tougher sentences however, as a country we imprison more people than almost all other countries. So, does simply “getting tough” solve the problem and give justice to the stomped man?

Let me know your thoughts or solutions.

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