Minnesota Lawyer Blog

A quarter-century ago, author Joe McGinniss wrote one of the most acclaimed crime-related books of all time, ‘Fatal Vision.’ The real-life story of Green Beret Capt. Jeffrey MacDonald, M.D. -- who in 1979 was convicted of the murder of his pregnant wife and his two young daughters – ‘Fatal Vision’ was made into a successful TV miniseries and raised the bar when it came to combining elements of reportage and prose in depicting a criminal case.

Now McGinniss has turned his focus to a case with a Minnesota connection. His newest book, ‘Never Enough,’ examines the case of Nancy Kissel, a former student at the University of Minnesota’s business school, who was jailed for life in Hong Kong for murdering her wealthy husband, allegedly so she could begin a new life with a Vermont television repairman.

Kissel, who recently broke her silence about the case, says McGinniss’s book about her case distorts the facts. Her attorneys say that if she wasn’t so focused on an appeal of her 2005 conviction, she would consider a defamation lawsuit.

‘Fatal Vision’ also drew fire from supporters of MacDonald who felt the book didn’t portray his side of the case fairly. Nonetheless, ‘Never Enough’ sounds like compelling fireside reading for fans of true-crime literature.

Under the headline "Daft Laws," the United Kingdom's Undercurrents Video blog recently posted a ranking of the top 10 "most ridiculous" British laws. While the utility of this information is debatable at best, it's something to chuckle over as you sip on your morning tea and munch on your scone. Here are the results in order (enjoy!):

1. It is illegal to die in the Houses of Parliament;

2. It is an act of treason to place a postage stamp bearing the British king or queen's image upside-down;

3. It is illegal for a woman to be topless in Liverpool except as a clerk in a tropical fish store

4. Eating mince pies on Christmas Day is banned;

5. If someone knocks on your door in Scotland and requires the use of your toilet, you are required to let them enter;

6. In the UK a pregnant woman can legally relieve herself anywhere she wants, including in a policeman's helmet;

7. The head of any dead whale found on the British coast automatically becomes the property of the King, and the tail of the Queen;

8. It is illegal not to tell the tax man anything you do not want him to know, but legal not to tell him information you do not mind him knowing;

9. It is illegal to enter the Houses of Parliament wearing a suit of armour;

10. It is legal to murder a Scotsman within the ancient city walls of York, but only if he is carrying a bow and arrow.

UPDATE: Paul Fletcher, publisher of our very fine sister publication, Virginia Lawyers Weekly, and a blogger in his own right at the VLW blog, provides a link for those interested in learning more about the ludicrous laws. The rankings were derived from a poll of about 4,000 people voting on a list compiled by UKTV Gold researchers. Cheers!

The Minnesota Client Security Board only paid two claims at its last meeting, both on behalf of lawyers for whom the board had paid earlier claims. Not that I’m predicting a trend or anything, but a report where the board pays $6,000 for two lawyers is much preferable to the $67,117.41 paid for one lawyer last April and the $68,299.67 paid last January.

The CSB runs on a July to July fiscal year, so although the two payments so far this year are about $74,229, there’s still plenty of time for the board to catch up with its last two years of claims: $135,417 in FY 2007 (for only two lawyers) and $220,223 in FY 2006. However, there was about $2.7 million in the fund in June, 2007, so the board appears to be in solid shape.

The claims are paid in cases of lawyer theft, not negligence. In most cases the lawyers are suspended or disbarred, but sometimes they go on disability status, reminding us that mental illness and addiction are the roots of some of the thefts. We also should remember that many of the lawyers repay the CSB in full.

The fact that these claims have to be paid is disappointing, of course. However, it shouldn’t mask all the good work that is being done at CLEs and elsewhere to help lawyers avoid or treat the personal and professional pitfalls that can lead to lawyer dishonesty.

As you no doubt are well aware, Pakistan is the midst of a constitutional crisis. President Gen. Pervez Musharraf has imposed emergency rule as the nation awaits an imminent decision from the Pakistan Supreme Court on the validity of his recent re-election. The Star Tribune has a piece on this, Police in Pakistan clash with lawyers protesting the state of emergency; media in stranglehold. The following is a quote from the Strib story:

Though public anger was mounting in the nation of 160 million people, which has been under military rule for much of its 60-year history, demonstrations so far have been limited largely to activists, rights workers and lawyers. All have been quickly and sometimes brutally stamped out.

For years lawyers have been trying to explain to the public what William Shakespeare meant with the oft-cited quote from Henrey VI, part 2: "The first thing we do, let's kill all the lawyers."

Over the years, the sentence has turned into a one-liner, but it's actually an ominous warning. When individuals or groups want to impose a dictatorship or create anarchy, the lawyers will be the first to line up against them -- and possibly get mowed down as a result. Unfortunately, what is happening in Pakistan provides a living example for those who need it. Let's hope nothing here ever puts our system of constitutional government to such a serious test.

Speaking of interesting quotes (see post below), Hennepin County Attorney Mike Freeman (on right) had one in a story Minnesota Lawyer published today ("Clergy criminal assault law survives challenge").

Freeman was, of course, pleased that Minnesota Supreme Court did not strike down the law that makes it a crime for clergy members to have sex with a person who is seeking or receiving “religious or spiritual advice, aid, or comfort in private.” However, the court went on to give the defendant in that case -- a priest convicted of having sex with two woman parishioners -- a new trial. The high court found that the admission of certain evidence of religious practice and customs during the trial violated the Establishment Clause.

After consulting his trial team, Freeman felt that the defense had not made sufficient objection to the admission of the offending evidence at trial to preserve the issue for appeal.

“This Supreme Court has too often reversed cases for conduct not objected to below. We don’t think that is a good practice," said Freeman, who may file for a rehearing. (The defense attorney maintains that sufficient objection was made at trial in this case.)

In any event, it is highly unusual for a county attorney to make such a strong public statement taking the high court to task.

By the way, the case is State v. Bussmann.

Even when you finally get to sink your harpoon into the great white whale, it usually takes a while for your diligence to pay off. The bigger they are, the harder they fall, after all.

Witness poor Faegre & Benson attorney Brian O'Neill (picture on right). O'Neill is mentioned in today's Star Tribune for his representation of Alaska fishermen and residents in the lawsuit against Exxon Mobil Corp. over the infamous Valdez oil spill nearly two decades ago.

Originally, O'Neill's clients were awarded $5 billion in punitive damages. That amount was lowered to $4 billion, raised to $4.5 billion and lowered back down to $2.5 billion in the tortuous history of post-trial wrangling. Now the U.S. Supreme Court has agreed to hear the case in order to to decide if $2.5 billion is an appropriate award.

O'Neill definitely is a contender for quote of the week for putting the lengthy litigation into perspective: "I was 41 when I started this case and now I'm 60," he told the Strib.

It might be OK that O'Neill could be retirement age before his firm gets its cut. The fee is likely to be one of the largest in state history unless the punitive-damage award is completely eviscerated. One can only imagine what O'Neill's share would be if Faegre does indeed get a nine-figure payday out of this. It almost certainly would be enough to retire on -- you know, once you add in Social Security and all ...

I recently had an interesting experience that has left me scratching my head, and, to be honest, a little annoyed.

I received in the mail a copy of Terence MacCarthy's book -- MacCarthy on Cross-Examination -- published by the American Bar Association. I was familiar with MacCarthy, having seen him make a presentation at Minnesota CLE's Criminal Justice Institute in Bloomington a couple of months ago.

As the editor of Minnesota Lawyer, I frequently get books sent to me by authors who hope we might review it or at least mention it in our paper. I assumed that this book, which arrived without explanation, fell into that category. Having no plan to read or review it, I nearly pitched it into the recycle bin. Fortunately, I did not.

The next day I received a bill from the ABA for $147.90, representing $129.95 for the book and another $17.95 for shipping. First of all, $129.95 strikes me as a bit excessive for a 220-page soft-cover book with absolutely no art work. And, given that it wasn't even the size of John Grisham novel, it seemed nervy for the ABA to charge me more than $17.95 to put it in an envelope and send it to me. At that price, I would expect it to be personally delivered to me by somebody in a gorilla suit.

I called the ABA -- and after wasting several minutes in Muzak land waiting to be connected to an actual human being -- I was able to talk with an someone. She was pleasant enough. When I said I had erroneously received and been billed for an ABA book, she asked me immediately, "Was it the McCarthy book?" I said that it was, and she told me that she would send me a return label so that I could send it back and not be charged.

Apparently, MacCarthy mistakenly told everyone at the CLE the book would be free when he passed around a sign-up sheet at the CLE. (At least that's what Minnesota CLE says in an explanatory letter I just received.)

I am feeling inconvenienced and somewhat peeved. When I do get around to sending the over-priced book back, I am toying with the idea of charging the ABA $17.95 for my "handling" costs to see how they like it ....

In next week's Minnesota Lawyer, Michelle Lore takes a look at the vacant seat on the state Supreme Court created by the retirement of Justice Sam Hanson. What process will likely be used to vet candidates? How important a factor is diversity this time around? What other factors should be looked at? You'll find the full story in Monday's paper.

Editor's Note: Minnesota Lawyer received the following press release yesterday from the Minneapolis law firm of Schwebel, Goetz & Sieben.

Today the Minneapolis law firm of Schwebel, Goetz & Sieben representing several families of persons who died in the I35 bridge collapse, and numerous injured victims, filed a Motion to Compel Mn/DOT to release documents in its possession, and to allow for expert inspection of those portions of the collapsed bridge now assembled on the Bohemian River Flats.

Attorney Jim Schwebel stated that while Mn/DOT has made available many documents on its website it has withheld critical inspection reports conducted by the private engineering firm of Wiss, Janney, Elstner Associates, Inc. which it hired under a two million dollar contract to determine the cause of the collapse. This private engineering firm has had wide access to the bridge site while lawyers representing collapse victims and their families have had to go to court to receive only limited access. It is unconscionable that this vital information accumulated at taxpayers’ expense should be kept secret from Minnesota taxpayers, and particularly from the victims who have every right to know why this disaster occurred.

In addition, Schwebel, Goetz & Sieben seeks access to allow its bridge experts to inspect numerous portions of the bridge which have been reassembled at Bohemian Flats downstream from the bridge collapse site.

The motion is set to be heard before Hennepin County District Court Judge Herbert P. Lefler in Minneapolis on Nov. 15, 2007 at 8:30 a.m.

A study released this week by the Urban Institute, a nonpartisan economic and social policy research group, discusses an “invisible” group of people who’ve been affected by the immigration raids taking place across the country -- children.

According to the report -- "Paying the Price: The Impact of Immigration Raids on America's Children" -- thousands of kids whose parents are arrested in ICE raids face mental health issues including post-traumatic stress disorder, separation anxiety and depression. Most of those children are citizens or legal immigrants.

Researchers visited two sites where ICE officers conducted coordinated raids of meat-packing plants and one where workers made equipment and apparel for the military. Officials at these three sites alone arrested 900 suspected illegal immigrants, meaning that 500 children abruptly lost contact with their mother, father or both parents. The study revealed that the children of those arrested were left with a combination of unstable supervision, stress, emotional trauma and material needs that can lead to mental health disorders.

While some might discredit the study because it was commissioned by the National Council of La Raza, a Hispanic civil rights organization, it’s undeniable that the findings at least give us something to think about.

Notably, one of the Minnesota ICE raids, which took place in Worthington last December, has led to a federal lawsuit. Several residents who were working at the meatpacking plant when it was raided by immigration agents are suing over the alleged abusive and illegal tactics used. The suit was filed in September by Centro Legal, an immigrant rights group.

An evenly divided Minnesota Supreme Court today left in place a decision upholding as facially valid Minnesota’s clergy criminal assault statute.

The case -- State v. Bussmann -- involved the prosecution of a Catholic priest who had sexual relationships with two women at his parish. The woman later complained that the priest had violated a state law making it a crime for a clergy member to have sex with a person who is seeking or receiving “religious or spiritual advice, aid, or comfort in private.” (Minn. Stat. sec. 609.344, subd. 1(l)(ii).)

The Court of Appeals concluded that the law did not facially violate the Establishment Clause, a decision with which three of the six justices hearing the case concurred. (Justice Lorie Gildea took no part in the decision.) Because the high court could not reach a majority consensus on this issue, the Court of Appeals’ ruling stands.

However, the Supreme Court nonetheless reversed the priest’s conviction and remanded the case for a new trial. Looking at the particular facts of the case, the court concluded that the admission of extensive evidence regarding religious doctrine and church policies and practices caused the entanglement of religion with the verdict and conviction. Thus, on an as applied basis, the Establishment Clause had been violated in this case.

Chief Justice Russell Anderson dissented on this point, arguing that the admission of the evidence did not violate the Establishment Clause and did not warrant the granting of a new trial.