In 2003 I had an experience with Minnesota Judge Lucy Wieland that opened my eyes to a whole set of problems. I represented a man who was being criminally charged with “resisting arrest” by Minneapolis Police (this is technically a charge of “obstructing legal process,” current statute here, but it is commonly referred to as resisting arrest.)
I stumbled into this case because I was interested in a different case that this client had, which raised important First Amendment issues. I took that case pro bono (meaning I did not charge the client legal fees). That case was dismissed, and I ended up litigating this second “resisting arrest” case.
I learned that there was a videotape of the incident that had been sitting in police inventory for six months.
I, myself, went downtown to view a videotape at the Minneapolis City Attorney’s Office. The videotape showed the ‘incident’ beginning with a police officer punching at my client, which caused the video camera he was holding to go askew and drop to the floor. The video showed, at the end, black leather jackets striking (hard) at something on the floor. Based on the context, it appeared the thing on the floor was my client. The video was relevant to the charges, because police were claiming that the man (on the floor) had been the one doing something wrong. It’s my job when I’m defending someone to gather as much evidence as I can. Certainly this evidence was important. And videotape evidence is perhaps the best type of evidence around to be able to show the jury what happened.
I ordered a copy of the videotape from the assistant and was told it would take only hours to prepare. I went to my car, immediately made a call to say what I’d seen. I told a number of people that day, including the US Department of Justice. More than one person predicted I’d never see the video images again.
This shocked me. I guess I was naïve.
By the end of the day, I had filed an affidavit stating what I had seen on the videotape.
Suddenly, Lois Conroy (the Prosecutor in the case) got involved and claimed it would take weeks to make a copy of the videotape. Hmmm.
When I finally got the “copy” – you guessed it, certain scenes were deleted including the scene at the beginning and the scene at the end.
My client made several motions, but we were having a hard time getting them decided by a judge.
There are many wonderful police officers who do great work at a tough job. I have encountered them in my practice (and just like good judges, they know who they are). I get along pretty well with a lot of law enforcement. I’ve had police who I’ve cross examined on the witness stand call to retain me as their attorney. Most police respect a defense attorney who works hard at her job. You might be surprised to hear how many law enforcement officers (and other government employees who work in the criminal justice system) have told me that they carry my name and number in their wallet, in case they get charged with something. It’s clear to me that they know that innocent people can and do get charged. And they know how hard I fight for a client who I believe is innocent.
But like any group, there are those in law enforcement who do wrong. We, the public, count on judges to hold those people accountable. The law does not work if we make ‘special exceptions’ for government workers. It seems that a lot of the hue and cry from the public lately, is around judges refusing to follow the law, instead acting to further some personal or political interest of their own.
Back in 2003, we finally ended up with Judge Lucy Wieland presiding in a June 6 hearing. This was the year before she became Chief Judge of the Fourth Judicial District (Hennepin County, Minnesota).
Knowing what I know now, I would have asked how she came to be on this file. Judge assignments are a huge part of justice. (More on that in later posts.)
As it was, I came to the hearing presuming I’d get a fair judge who would review the evidence and hopefully be quite concerned that we were not getting the full evidence. Something quite opposite occurred, and such began my lessons in accusing system insiders.
Minneapolis Prosecutor Lois Conroy came into the courtroom almost with a swagger. She seemed to me to be extremely confident that she was going to prevail. I did not know why she was acting that way. Knowing what I know now, I would have wondered whether ‘behind the scenes’ (ex parte) communications had occurred before the hearing. No matter what people say, behind the scenes communications can be common when it comes to certain types of cases. (More on that later.)
Judge Wieland’s behavior appeared odd to me. I didn’t have experience with her. But even so, I couldn’t help but be shocked by what she did (and didn’t do).
I had the videotape with me and a portable videotape player. She didn’t want to view it. She tried to keep the hearing excessively short. She seemed nervous. She’d make a pronouncement and then literally try to run off the bench and out the back door. The hearing ended abruptly when she left the room.
I was, quite frankly, mind-boggled. Rather than scrutinizing the conduct of the State, Judge Wieland threatened me with sanctions for “excessive litigation around these issues.” Hmmm.
The ability of the bench to sanction lawyers is a necessary tool in the right situation. But over-use of sanctions is as much an issue for judicial misconduct as ex parte communications or ruling in favor of a friend. It’s simply not permitted to sanction an attorney (or even to threaten to do so) because the judge doesn’t like the attorney’s argument, or wishes the client wasn’t raising the issue or because the judge is angry that a government employee is being accused. Indeed, the judicial branch exists so that people can receive a full, fair and honest assessment of government conduct.
Judge Wieland’s threat of sanctions was designed, in my view, to get me to ‘back off’ and not make the accusation. This is a sad state of affairs.
How did we get here in this democracy? I have many theories on that. Suffice it to say that some judges are willing to rule to protect government employees, rather than applying the law and the constitution to the facts of a particular case. The whole point of a third branch of government was to create a ‘watchdog’ over the other two. (More on that later.) This 2003 hearing with Judge Wieland became a huge lesson for me. I am sorry to have to say that it was my opinion she was protecting government, rather than seeking the truth.
I have since learned that this is all too common in the justice system.
People who have not encountered this dark side of the justice system might not know what I am talking about. Many people say to me once they are wrongfully charged, or their son is, or a friend is, that they had no idea how bad things can be. I believe that to heal this justice system we need to talk about these problems. The goal is to have each case (civil, family or criminal) be decided on the law and the facts. This at the same time protects the integrity of the justice system. It will also save money: who wants to pay taxes for a 20-year prison sentence if the guy didn’t do it? (I haven’t found one person who told me they wanted to do this.) Who wants to pay for a judge to rule on a civil case, if the judge is just doing what his government buddies want? We don’t have that kind of money to spend anymore.
This kind of paradigm shift is possible. And the public’s interest in the justice system is the engine that makes change.
But what about the client in this 2003 case? It’s scary enough when you are a private person being accused of a crime by government and feel you are being railroaded. But its really scary (like those movies where the star is trapped in a mountain town and can’t leave, and the sheriff is working for the bad guys) when the courthouse is not a safe place to raise concerns about whether you got all the evidence. Although it would have been easier for me as a lawyer to ‘back down,’ that would have made me a coward and not worthy of my law license. What makes a professional is someone who puts their client before themselves.
So I forged on. (Do you think that could be why certain government officials are not so happy with me…?)
I learned that shortly after the hearing, Judge Wieland had signed a sua sponte order prohibiting any further motions in the case, and forcing the case to a trial. Her order blocked my client’s ability to litigate the destruction of videotape evidence. Hmmmm.
So what drove that decision?
The client was forced to file an action with the Court of Appeals, which did prohibit Judge Wieland’s sua sponte order (meaning it had no force or effect). That, at least, permitted further litigation of the issue before a different judge. And the entire case against that client was eventually dismissed by that judge.
So began my observations of Judge Lucy Wieland.
Look for 2004: Lucy Wieland
