In this episode of the BarryLaw Podcast, Barry Rosenzweig talks criminal law with renowned criminal defense attorney Eric Nelson.
Eric Nelson is an attorney with Halberg Criminal Defense and can be reached at 612-333-3673 or online at www.halbergdefense.com.
Eric’s experience includes successfully representing clients charged with all levels of crimes through negotiation, jury trial and at the Court of Appeals. Eric has handled cases including homicide, sex offenses, drug offenses, assaults and hundreds of DWI and alcohol-related traffic offenses. Eric has also represented individuals faced with civil commitment as a sexually psychopathic personality/sexually dangerous person.
Barry Rosenzweig has been an attorney for over 25 years and is nationally known as a visionary in his profession. Barry Rosenzweig can be reached at (952) 920-1001 in Minnesota and (480) 227-2203 in Arizona. He can also be reach by email at [email protected] or online at www.barrylaw.com.
Today, we're talking criminal justice with prominent criminal defense attorney, Eric Nelson.
Welcome to the Barry law legal podcast. Barry Rosenzweig has been an attorney for over 25 years and is nationally known as a visionary in his profession. In each episode, attorney Barry Rosenzweig, interviews lawyers, real estate agents, lenders, and other professionals that bring popular legal related topics into focus for his listeners. So, get ready or an educational and exciting episode. Now here's your host, Barry Rosenzweig
Barry Rosenzweig: Here today with Eric Nelson criminal defense attorney.
Eric Nelson: Good afternoon.
Barry Rosenzweig: Eric. We've known each other for quite a long time.
Eric Nelson: Yeah, I was thinking about that probably about almost 20 years.
Barry Rosenzweig: And you're in my opinion, one of the better, most prominent attorneys in town. You've had some pretty big cases.
Eric Nelson: Well, thank you.
Barry Rosenzweig: And you're not afraid to take on good cases as you see fit. Well just start out and tell me a brief bit about yourself.
Eric Nelson: Born and raised Minneapolis Minnesota, did my undergraduate out of a small university in Pennsylvania, Philadelphia, Pennsylvania called Eastern university. Originally was in the museum business, have a background in history and worked for a couple of museums out there. Not very profitable type of a business. Decided to move back to Minnesota and eventually went to law school at Hamlin university.
Barry Rosenzweig: Okay. And did you start out in criminal defense?
Eric Nelson: I did a clerkship with a judicial or judicial clerkship down in Dakota County, right out of law school just under a year. And then I did a very short stint in divorce and family law and realized that that was a terrible profession in my opinion. And went into criminal defense.
Barry Rosenzweig: What part of criminal defense do you like? What part of it really makes you feel good about what you do?
Eric Nelson: Well, given the history background I believe very strongly in the constitution and the principles that are established by the constitution. So, I feel that I'm actually on a daily basis arguing about and defending the constitution. That's kind of a global answer. More specifically the people, you know, we're dealing with people in extremely difficult circumstances and helping them through those circumstances.
Barry Rosenzweig: Explain to me a little bit about the levels of charges people get there are significance, I mean, beyond a parking ticket.
Eric Nelson: So, there's technically three levels of crimes in Minnesota. If you exclude things like parking tickets, those are petty misdemeanors and not considered to be crimes. A petty misdemeanor is defined as anything that's punishable by up to a $300 fine. You can't go to jail. When we started talking about crimes, the first level is a misdemeanor. That means simply by statute or by definition, the maximum possible punishment is up to 90 days in jail and or a $1,000 fine. The second level in Minnesota is what's called a gross misdemeanor that is punishable by up to one year in jail and, or a $3,000 fine and anything that is punishable by a year and one day. So basically, more than a year up to life imprisonment is considered a felony. So, first offense DWI, generally speaking, as long as you test under a certain level is a misdemeanor first offense, domestic assaults, shopliftings, orders for protection violations. Those are all things that would be kind of common examples of misdemeanors, disorderly conduct. Gross misdemeanors might be a second offense, DWI. It might be a second offense, domestic assault. It could be a first offense DWI with a high alcohol concentration. Those would be gross Misdemeanors. Felonies are obviously things like burglary, homicide, most sexual offenses, robbery.
Barry Rosenzweig: Okay. Have you handled pretty much evenly the full gamut of those?
Eric Nelson: Yeah, I'd say earlier in my career mostly misdemeanor type defense, a lot of DWI defense, a lot of domestic defense. So those things are so frequently occurring that there's just more of those things to deal with. As my career has progressed, I have shifted, and I handle mostly serious felony level offenses now.
Barry Rosenzweig: What are some tips you can give in the event that they're approached or, you know, by the police, maybe not necessarily even arrested or brought in, you know, taken into custody, but just some things that people should know matter of faculty that they should do throughout any of those types of situations.
Eric Nelson: Right. Well, I mean, I obviously think it's very dependent upon every circumstance. Generally speaking, if you are a suspect in a criminal investigation, let's phrase it that way. Under no circumstances, should you ever think you can talk your way out of it. The fifth amendment, the right to remain silent exists for a very legitimate and important reason and under no circumstances, should you ever talk to the police without a lawyer being present If you're a suspect. If you're just a witness, you have no obligation to cooperate with the police, but obviously, you know, depending on the circumstances, you may choose to do that. And it's a much different analysis, but if you're a suspect, never talk to the police.
Barry Rosenzweig: A lot of times, I think people are under the assumption that they, once they're arrested. Let's just say even a domestic situation that the party, one of the parties that let's say is the person being assaulted or whatever can just say, I don't want to press charges.
Eric Nelson: That's wrong.
Barry Rosenzweig: Do you want to explain that a little bit?
Eric Nelson: Sure. In Minnesota, Minnesota is what's called an [05:56 inaudible] loci state. It means that the state acts in the place of the parents, so to speak. The state of Minnesota, the prosecutor, whether it be a city or County level prosecutor, they make the decision on whether or not to prosecute an individual. Other States do have a complaining witness, swear out a complaint, and that's, what's required to initiate criminal prosecution. That is not true in Minnesota.
Barry Rosenzweig: Can somebody come in at the first appearance and, and say, look, just say, it's a felony charge. So, it's fairly serious. And just go walk up there and say, I'm guilty.
Eric Nelson: Sure. You can always change your plea at any point. So because the law presumes you innocent and you show up at your first appearance, you can change your plea and plead guilty at a first appearance, whether or not that's advisable is a whole other question.
Barry Rosenzweig: Can they plead guilty because they want to protect, you know, they just even say, I want to plead guilty, cause I don't want somebody else to get in trouble or I didn't really do it, but I just want to get, get it over with, or do they have to actually on the record statewide, they're guilty.
Eric Nelson: When someone pleads guilty in the state of Minnesota, there's a variety of things the court has to ensure. They have to ensure that the person understands his or her constitutional rights to trials and lawyers and things of that nature. They have to enter what's called a factual basis, meaning the person has to admit facts. They have to admit what it is that they did in order to make them guilty of a crime. And then obviously they have a right of what's called allocution, which is to explain why they're pleading guilty or why they committed the crime or to apologize or to whatever.
Barry Rosenzweig: Is everyone entitled to a free attorney?
Eric Nelson: No. So, one clarification or one correction and it's probably one of the things that TV has miss educated our general population about is when you are arrested. It's not like you see on TV, they don't just slap the cuffs on you and read your Miranda warning, your rights, so to speak. That is a, there is a separate legal analysis to determine whether or not you are, you should be entitled to a Miranda warning. So, but generally speaking, the question being is everybody entitled to a free lawyer or a public defender? The answer is no, you have to meet certain financial qualifications in order to be appointed the public defender.
Barry Rosenzweig: How many of these cases go to trial and why would you not go to trial versus trying to settle a case? What's the reasoning for settling a case?
Eric Nelson: I would say based on my own cases, just kind of doing the quick math in my head, I would say on average, I try somewhere between four and six jury trials per year, which doesn't seem like a lot because I will handle maybe a hundred criminal cases in a year. So, you know, I guess what is that 4% for, right? Not a lot of cases go to trial. There are, there are a percentage of cases that are dismissed before you ever get to trial for some legal ruling or some decision that the court makes that there's certain evidence couldn't be used against the person or whatever the legal ruling is. So, there are certain cases that are dismissed. People refer to them as based on technicalities. I prefer based on the constitution. But so, there's a number of cases like that. And then the vast majority of criminal cases, 95 to 90 to 95% of criminal cases, generally statistically resolved through plea negotiations.
Barry Rosenzweig: And why is that? I mean, why would somebody want to settle a case even if they feel that maybe they're guilty?
Eric Nelson: Right. Well, keep in mind that the state does is at least theoretically not allowed to prosecute someone unless they have proof beyond a reasonable doubt that the person committed a crime. So oftentimes people are in fact guilty of these crimes. And so, there's a whole multitude of reasons why someone may choose to resolve a case rather than going to trial. Often it is to mitigate or minimize the punishment. That's the most common, you know, if charges could be reduced or lessened jail time can be reduced, lessens, consequences, you know, someone is looking at going to prison and you can negotiate a resolution that results in that person not going to prison. You know, they're going to take advantage of those types of offers.
Barry Rosenzweig: Okay. You mentioned bail, let's go back to that. What is the reason for bail?
Eric Nelson: So, bail is essentially to guarantee the person's return to court. It's a way of getting some type of security from the individual that they will return to court. Under the Minnesota constitution Everyone is entitled as a constitutional right to be free from jail pending the outcome of the criminal case. If someone has a history of not showing up in court or has some other very serious offense, they want to protect the public number one. And they want to ensure that that individual is going to come back to court. That's what bail is for to secure your return.
Barry Rosenzweig: A lot of people think it's a punishment. Well, they sometimes say there's, we will not allow bail.
Eric Nelson: No, not a Minnesota.
Barry Rosenzweig: So, there's always some bail and the amount we're talking about.
Eric Nelson: And I should clarify, if you are, if it is a new criminal case and it's a new charge then yes bail is a constitutional right.
Barry Rosenzweig: Okay. And who decides that How much, it is the judge?
Eric Nelson: The judge.
Barry Rosenzweig: Okay. Do they sometimes get, is it sometimes you and the prosecutor, maybe making an argument to the judge why it should be a certain amount?
Eric Nelson: Yeah. I mean, that's most common and very serious felony offenses. If someone is arrested, let's just, I'm going to just pick an offense, let's say on a rape charge, right. We call it criminal sexual conduct in Minnesota. The court will get information from the pretrial probation services saying here is what this person is looking at if they were to be convicted, here's their past history of crimes here is where they've lived, how long they've lived there, here's who they live with. And so, they're looking at a person's connections to the state of Minnesota to see is this person a flight risk essentially. And what danger to the public does this person present? And then their sort of mathematical equation that gets applied and, and a bail is recommended to the court the prosecutor and I oftentimes, or the prosecutor and the defense oftentimes will argue to the judge about what the correct bail amount is. And then the judge ultimately decides the amount of bail to set.
Barry Rosenzweig: A lot of times you hear, they say cash or bond, and they say, sometimes you can put up 10% with the court, or obviously you can go to bail bondsman, but how does a court in Minnesota handle those types of things?
Eric Nelson: So, let's just pick an arbitrary number of bail gets set in the amount of $10,000. The individual can literally take $10,000 cash, put it in the court's bank account, basically deposit it with the court. And the court holds onto it until the case is over. Most people don't have $10,000 cash that they can tie up, you know, for six months to a year. So, they will hire a bail bondsman, a bail bondsman charges a 10% premium. So, in that $10,000 analysis, you'd pay a bail bondsman, a thousand dollars. And then they basically are loaning you. The difference is if you use your own actual cash at the end of the case, you get all $10,000 back. If you hire a bail bondsman, you pay the bail bondsman the 10%.
Barry Rosenzweig: Okay. And if you don't show up to court?
Eric Nelson: Then you got to pay the bail bondsman that 10 grands.
Barry Rosenzweig: Even if you, what about the court? If you put it up with the court itself.
Eric Nelson: They can forfeit and keep that money.
Barry Rosenzweig: Even if they, even if you appear later or they catch you and bring you in.
Eric Nelson: Yeah. I mean, you can make a motion to have that reinstated or have that money given back to you, but again, like most things in the law, it really depends. Isn't that what we all learn in this role? The answer to any question is it depends. So, there's a variety of factors, you know, have you scanned it for 10 years or 10 days, right. How long have you been gone? What were the original charges?
Barry Rosenzweig: Okay. You mentioned probation, there's probation that goes on with prior to the guilty pleer sentencing and or found guilty in a trial. So, prior to that, how does that probation work? And what's the purpose of it?
Eric Nelson: Probation takes two forms. One is a pretrial probation. Second is post sentencing probation. Pretrial probation is really just to monitor a person's compliance with the court ordered conditions, leading up to trial. So if a judge orders you not to drink and to submit to random testing that pretrial probation officer will be the one that you're dealing with to do your breath tests or your blood tests or whatever it is. After the fact, then you get assigned a probation. So, after you're convicted, you would be assigned a probation officer. Again, that person's job is to monitor your compliance with the court's conditions or sentencing orders.
Barry Rosenzweig: Let's talk about sentencing. Let's talk about sentencing in a settlement versus a trial. And I think sometimes the notion is that if you go to trial versus settling, you might get a harsher sentence if you're found guilty. Sometimes maybe that's hard to know, but tell me a little bit about sentencing in general and then how it differs maybe from a settlement and a trial.
Eric Nelson: So the law basically States that you are entitled, you have a constitutional right to a trial, so you can never be punished for exercising your rights, meaning you can never be punished more harshly than the law would allow simply because you exercised your right to a trial and how the state to its burden. Usually the, I think perhaps the reason this perspective, or, you know, this, this has kind of developed is, you know, before trial ever occurs, the state may offer somebody a deal, right? You serve X number of months in prison, or you serve X number of days in jail. Even though the law says you should go to jail for longer or prison for longer. So, by way of example, let's assume the law says someone is supposed to serve three years in prison as a result of whatever crime it is, they committed. And the prosecutor will come to that person beforehand and say, well, you know, I want to get this case resolved. I think I got a strong case, but your guy's a nice guy. He's done all of, you know, he's done all, everything he was supposed to do up to this point. So, I’ll offer him two years in prison and the person says no, and they go to trial. And all of a sudden, now they're getting sentenced to three years, right? So, it seems like it's more serious, but that's what the law said they should have done in the first place. So, the other thing to understand, at least with respect to two felony sentencing in Minnesota is that Minnesota has what's called a determinative sentencing guideline or a determinative sentencing structure. What that means is at least in theory that every crime or every felony level offense in Minnesota is ranked in terms of its severity. You look at the grid, we call it the sentencing guidelines grid, and you see where that offense is ranked. And then you look at the person's prior criminal history and where those two axes intersect. It creates a presumption of that, the sentence the person is supposed to serve. So, the idea at least theoretically, is we treat everybody equally, right? So regardless of whether you're white or black or a man or a woman, or, you know, insert whichever subgroup you want if you commit a particular crime, you do a certain amount of time. That's the theory.
Barry Rosenzweig: And can judges deviate from that?
Eric Nelson: They can. They can go downward on the basis of a defendant's motion. So if there are mitigating factors that the court fines, they can reduce that sentence, that's called a durational departure or they could do what's called a dispositional departure, which is where the court says, we're not going to send you to prison. We're going to just put you on probation. If the court is going to go higher than the guidelines, I think it was about 2005, the United States Supreme court said that that's up to a jury. So now what happens in Minnesota, if the presumptive sentence for a particular crime is say, six years or five years in prison, and the prosecutor wants to try to get more time than that. They have to file. What's called a Blakely motion, which is a motion to say, these are the aggravating factors. These are the things that we think make this case more serious than the law recognizes and in the sentencing guidelines. And then a jury has to decide beyond a reasonable doubt, whether those factors exist.
Barry Rosenzweig: Is that like a second trial almost with a separate jury?
Eric Nelson: Nope. It's with the same jury, it’s called a bifurcated sentence or bifurcated trial. The first question is the person, is the person guilty or not guilty, right? So, the judge, or excuse me, the jury will determine the person's guilt. If they find the person guilty, then they're sent back in and you have sort of a second mini trial where you're arguing over these aggravating factors.
Barry Rosenzweig: As far as the evidence goes, is there any like hidden evidence that the prosecutor has the defendant has? Or does everybody have the same information,
Eric Nelson: Everybody has the same information. It is exceptionally rare when sort of the aha like the last-minute evidence that's walked into court and, you know that would be highly unusual. There is an ongoing process called the discovery process that when someone is charged with a crime, they have a right to get access to all of the state's evidence. So the state of Minnesota, the prosecutor has an obligation to provide you with this discovery information that can be police reports, that can be forensic testing results that can be witness statements, photographs, you know, you name it, body camera, footage, squad car footage whatever the evidence is. So, to speak in any particular case you get to see all of that information, all of that evidence before you ever go to trial. And if that last-minute piece of evidence somehow comes up oftentimes the remedy is, well, we're not going to try the case Now. We're going to give everybody an opportunity to look at this new evidence and make decisions based on that.
Barry Rosenzweig: it's put on hold essentially. Still keep the same jury.
Eric Nelson: Well, if it's in the middle of an actual trial it would be unlikely that that evidence would be admitted into court.
Barry Rosenzweig: Okay. Okay. You're talking previous to the...
Eric Nelson: Leading up to a trial.
Barry Rosenzweig: I see. Okay. And what about situations similar to that if all of a sudden, a witness decides to come forward or decides to testify either for the defense or the prosecution?
Eric Nelson: I mean, that's probably a little bit more of a likely scenario where someone who previously didn't want to testify now agrees to testify. Again, the idea is, is that everyone is entitled to a fair trial, you know and so everyone is given an opportunity to kind of look at the, look at what this person's going to say here. What they're going to say before you would ever have that person testify in front of a jury. If it comes up in the middle of a trial, we can always press pause on the trial. It wouldn't be for a week or two weeks or anything like that. It might be for an hour or half an hour, just to give people the time to digest the information.
Barry Rosenzweig: I hear a lot about people who are called for jury or potentially called for jury duty. And they always hear from novices or other people that say, Oh, you know, just go in there and tell them you're prejudice. Just tell them that you think the person's guilty, or I think, you know, they come up with all these sort of things they think they can say that will basically get them ejected from the jury. Is that true?
Eric Nelson: You see it all the time, people who come in and say it actually happened in just in this last trial again you know, we did what was called a questionnaire beforehand. My client was African American and there was a question on the questionnaire asking about race. And you could tell that this individual he wrote answers like, I believe that they're cheap or, you know, whatever his racially biased statements were. But I don't think he ever expected to be called out on it. Because bring them out into the courtroom. And now in front of a large group of people were calling you out on your stereotypes. Or, you know, and obviously he wasn't selected for this trial, but just because you're not selected on this case, it doesn't mean that you're not going know end up in some insurance fraud trial that hasn't, you know, some civil, you know, a slip and fall, you know, they're going to keep you working until they find a trial for you or they send you home.
Barry Rosenzweig: Tell me you know, I don't need to hear about specific cases, but just tell me some interesting things that you've come across that, you know, listeners would be interested in hearing about.
Eric Nelson: Yeah. I mean, it's, you know, it's kind of an interesting profession because inevitably, whenever someone learns that you're a criminal defense attorney, the first question is always, how can you do that? And then the second question is, tell us some cool stories, you know, what we deal with. And particularly those of us who deal with violent offenses, homicides, sexual assaults, child pornography, you're dealing with some incredibly difficult subjects. You know, it can be an emotionally exhausting career. And you're dealing with people who, you know, who have struggled with addiction, you're dealing with whether that be a sexual addiction or a drug addiction or an alcohol addiction. So, you're dealing with a lot of high stress, high stakes type of stuff. You know, I mean, yeah, there's lots of fun stories you can tell at cocktail parties, you know, about weird things that have happened. And, you know, you honestly can say, I never thought that I never, or, you know, you could say, I thought I had seen it all and something new comes along, you know, the peoples, whether it be deprived behaviors or whatever it is. You know, I mean, a lot of people ask me about homicide cases and, you know, like child pornography cases for example, little do people know is that I, as the lawyer have to go and inspect the child pornography and I don't do it in every single case. I often I have a way of getting my client to tell me whether I need to do this or not. But, you know, just earlier this week, I had to go down to the County attorney's office and view child pornography. It's tough, you know, I’ve got children, I’ve got three kids and, you know, and I’ve dealt with, I’ve coached youth sports. And, you know, I love my kids and I’ve worked with children in past lives. And so, yeah, it's a very tough type of a thing, but something we have to deal with, right. That usually causes the question of how can you do what it is you do.
Barry Rosenzweig: You have to remove yourself I am guessing from that part of it, but still do the right thing for your client.
Eric Nelson: Yeah. I mean, you have a, every single person has a constitutional right to a good defense, right. To a defense. And I take that extremely seriously. And so, I'm going to do whatever I have to do to, to ethically to defend you.
Barry Rosenzweig: And I say a lot of times when I hear these stories about how can you defend that kind of person? I think the idea is that I convey to them if, if they weren't able to get a defense, you may not be able to get a defense.
Eric Nelson: Yeah. I mean, that really is, people don't think about it in the general sense. They think about it in the individual sense, you know, so this, what I described with some of these jurors, when they see how it applies, right? This case I just tried was a personal care attendant who was charged with sexually assaulting one of his patients. And there was eyewitness and DNA and all of this stuff. And, you know, and some of the jurors commented to me after about how eye opening of an experience It was to see how the police do things, how this process works, how you know, how the law works. So, when you think about it, people don't generally think about it in the abstract. They think about it only when it hits them, and all those people never get charged with a crime. So, they don't spend much time thinking about it, but it is definitely true that if one person is not afforded their constitutional rights, then it minimizes the significance of those rights for all involved.
Barry Rosenzweig: I want to just say, Eric, I think you have really given a lot of good information to people and listeners who will find this valuable because you've made it simple for people to understand. Hopefully they can stay out of trouble, but it gives them a way to understand what would happen if they get in trouble and what they should do as far as contacting an attorney and handling themselves in a situation prior to contacting an attorney.
Eric Nelson: Yeah. Every time I wrap up a criminal case, I shake my client's hands and I say, don't take offense, but I hope I never see you again.
Barry Rosenzweig: That's right. That's right. Okay. Well, thanks very much. I appreciate you being here.
Eric Nelson: No problem.
This has been the Barry long legal podcast tune in again, as Barry interviews lawyers, real estate agents, lenders, and other professionals that bring popular legal related topics into focus for his listeners. Barry Rosenzweig can be reached at (952) 920-1001 in Minnesota and (480) 227-2203 in Arizona. He can also be reached by email at [email protected] or online at www.barrylaw.com.