Obscenity charges for Randy Driver

13 Sep

In a case just itching for a first amendment defense, Brian Wutschke has been charged for, well, I will just let you read it.  I suppose the question is whether sucking on a piece of plastic can be considered: “open or gross lewdness or lascivious behavior, or any public indecency.”  This humble author would guess we will never find out, because when the poor guy’s attorney tells him he really thinks they should fight the case, the lawyer will be met with a stare of disbelief. Perhaps the most unsettling portion of the story is that as I write, an adult pleasure aid is slowly vibrating itself to quite demise at the SPPD.   Seriously can someone suck it up and go turn that thing off…


Rep Accuses Duluth Police of Violating Data Practices Act following Gauthier Arrest

24 Aug

The Duluth News Tribune and the Strib are both reporting on the investigation by a Minnesota House subcommittee into the Duluth Police Department’s record-keeping system in the wake of the Kerry Gauthier investigation. Rep. Peggy Scott, R-Andover, who chairs the house subcommittee on data practices, said in a letter to Duluth Police Chief Gordon Ramsay that the department “appears to have violated the law in order to avoid disclosing public data” in the case.

Scott’s letter said the department “twice failed to comply with requests for public data related to the Gauthier investigation.”

According the the News Tribune, Duluth police said the investigation on Gauthier was categorized in its database as high-profile, meaning that only a few officers in the department knew about it and could see the information. Thus, when the News Tribune initially asked for information on the case, the department responded that none existed. At that time, the officers who did the search didn’t have access to that case, Deputy Police Chief Robin Roeser said.

In her letter to Ramsay, Scott said maintaining public data on “high-profile” cases and keeping those cases separated from others was “highly inappropriate and a clear violation of the Minnesota Government Data Practices Act.”

“By restricting access to public data related (to) incidents involving ‘high profile’ individuals, the Duluth Police Department has created two sets of rules for handling public data,” Scott wrote. “For regular people, requests for data will be processed according to the rules of Chapter 13. For ‘high-profile’ people, the police will decide which data to release and when to release it.”

Scott’s letter can be viewed here. The full text of the MGDPA can be viewed here.

Court of Appeals Upholds Felony Terroristic Threat Conviction for Whispered Statement to Child

15 Aug

In State v. Hershbergeran unpublished opinion released on August 9, 2012, the Minnesota Court of Appeals upheld, among other things, a defendant’s conviction for felony terroristic threats for whispering in the ear of a child that she and her siblings would “have to pay for what [they] did to him.”

The defendant in the case, Tim Hershberger, had previously been convicted of gross-misdemeanor malicious punishment of the children in question, and the court reasoned that, “Given the relationship history and [the child’s] age of eight, it was reasonable for her to interpret Hershberger’s statement as a threat to commit great bodily harm, and Hershberger acted, if not with the purpose of causing such terror, at least in reckless disregard of doing so.”

Under Minn. Stat. § 609.713, “Whoever threatens, directly or indirectly, to commit any crime of violence with purpose to terrorize another . . . or in a reckless disregard of the risk of causing such terror” is guilty of terroristic threats, and to convict on a charge of felony terroristic threats, a jury must find that the defendant threatened “a specific predicate crime of violence,” as listed in Minn. Stat. § 609.1095.

Essentially, the jury, and subsequently the Court of Appeals, found that Hershberger’s whispered words were a threat of a “a specific predicate crime of violence,” namely first-degree assault. Hershberger’s only statements cited in the opinion came from the child’s testimony at trial that Hershberger whispered a statement to her, “saying we have to pay for what we did to him.”

The opinion does not address any First Amendment concerns with the conviction or Minnesota’s terroristic threats statute, neither does it reference any U.S. Supreme Court precedence regarding the Constitutional limitations on criminally actionable threats.

Hershberger was also convicted of felony stalking with intent to injure, and stalking by return to property without consent.


Another Locked Courtroom Deemed Permissible

15 Aug

The Minnesota Court of Appeals released an unpublished opinion on August 13 stating, among other things, that a “district court’s closing of the courtroom door during its final charge to the jury did not implicate [the defendant’s] right to a public trial.”

The opinion, State v. Cook, is another example of a closed courtroom (albeit only during jury instructions) during a portion of a criminal jury trial in Minnesota being upheld by the state’s appellate courts. In the Cook opinion, the court cited a Minnesota Supreme Court opinion from July 2012 for the principle that “a district court does not implicate a defendant’s right to a public trial when the court locks the courtroom doors during jury instructions; the court never clears the courtroom of all spectators; the court tells the people in the courtroom that they are welcome to stay; the court keeps the trial open to the public and press already in the courtroom; the court does not order the removal of any member of the public, the press, or the defendant’s family; and the jury instructions do not comprise a proportionately large portion of the trial proceedings.”

According to the opinion, the closed portion comprised 40 pages of the 2000-page transcript of the trial.


High School Students, Alumni Face Repercussions for Twitter Account

24 Jul

On July 20, the Student Press Law Center had an interesting report on a Twitter account set up by several students and recent graduates of Worthington High School to gossip about classmates. According to the report, Worthington police said the creators of the account could face charges including terroristic threats, harassment and libel, in addition to discipline from the school. The SPLC has some great commentary on the limits of these potential disciplinary threats. Additional information is available at the Worthington Daily Globe.

Dead Mom’s Family Members Lawyer Up.

24 Jul

According to a July 16 story in the Pioneer Press, the survivors of Toni Medrano have hired an attorney to negotiate some sort of settlement or initiate a lawsuit with television network CNN and commentator Nancy Grace. The PiPress reported that Medrano allegedly drank a fifth of vodka before falling asleep and smothering her baby in November 2011. Medrano was subsequently charged with two counts of second-degree manslaughter. On a segment of the “Nancy Grace” television show on June 11, 2012, Medrano was ridiculed and dubbed “the vodka mom,” and on July 2, Medrano reportedly poured a flammable liquid over herself and lighted it, and later died of her injuries. Medrano’s family apparently blames Nancy Grace and CNN for Medrano’s death and hopes to be compensated by the network.






Court of Appeals Revisits the Role of Subcontractors under the MGDPA

23 Jul

On July 10, the Associated Press previewed an oral argument that took place before the Minnesota Court of Appeals on July 11, pertaining to a case between The Timberjay, a newspaper based in Ely, Minnesota, and Johnson Controls, Inc. The newspaper is seeking a copy of a subcontract Johnson Controls made with Architectural Resources, Inc., a Minnesota architectural and engineering firm. The crux of the case is whether a portion of the Minnesota Government Data Practices Act, Minn. Stat. 13.05 subd. 11, applies to the subcontract in question. The statute provides, in part:


“If a government entity enters into a contract with a private person to perform any of its functions, the government entity shall include in the contract terms that make it clear that all of the data created, collected, received, stored, used, maintained, or disseminated by the private person in performing those functions is subject to the requirements of this chapter and that the private person must comply with those requirements as if it were a government entity.”


An initial administrative hearing resulted in a victory for Johnson, but the decision was subsequently reversed by a chief administrative law judge. The matter was then appealed to the Minnesota Court of Appeals. For more background on the case, see this excellent 2011 entry in Media Law Minnesota.