Chrismas Conviction Confounded

I admit it: the Grinch was acquitted of stealing Christmas presents and it happened on my watch.

He didn’t even have a defense attorney.

It was not my fault, my witnesses got confused.  After all, they were only third graders, and they had not actually witnessed the theft.

You see, every year the County Attorney’s Office partners with the Worthington Police Department to give local third grade classes a tour of the Prairie Justice Center. We’ve had four tour groups so far this year and each group consists of two classes. As each group comes through, Officer Jackie Bomgaars takes one class and someone from my office takes the other and we show off our respective areas.

For our part, we take the children into the court room, and have a little mock trial.  It is always more interesting to see what happens than it is to hear someone just talk about it. We try to have it be realistic, but we still tell the children how a real trial would have to be held.  We tell them that in real cases a person on trial has to be there for a trial. We tell them that we are not having them swear an oath to tell the truth, because this is pretend.

On the day of my defeat, everything was going according to plan. I had already tried the Grinch once before another class, and convicted him.  With the second class, I did what I usually do; I had the teachers identify two students who could be my witnesses. Then I took my witnesses out into the hall to brief them on the facts I was going to have them testify about.

I told them one of them would be a homeowner who had a nice Christmas tree with a lot of presents underneath. Our victim was home on Saturday and heard a noise in the living room. When our victim went to investigate, he found a green-faced person in a Santa suit running out with the presents. The thief’s Santa hat fell off and our victim picked it up.  Our victim called the police and the second witness was the officer who came in response to the call.  The officer searched the area and found a person in a Santa suit without a hat, running down the street holding presents. One of the presents is shown to the victim in court and the victim identifies it as his. The officer is shown a photo of the Grinch (who of course is not present) as the person that he arrested.

Great in theory, but on the stand they both fell apart. My witnesses went rogue.  And not because of cross examination—there was no defense attorney.  It was my questions they had trouble answering correctly.  My victim was sure the thief had a white face (but wore a green mask).  Even though a hat was found outside the victim’s house, my officer was sure the person he stopped was wearing a hat. And when he saw the picture of the Grinch, well, he wasn’t sure that was our guy. Sometimes my Grinch trial witnesses goof up a little, but they usually can take subtle hint from me and get back on track. These guys were adamant. I couldn’t budge them.

Their teacher had her head in her hands, and I am sure my mouth hung open for a sec. 

But I recovered. After all, we don’t stop at just having our third grade jury give a verdict, we talk about what the evidence was that supported conviction or in this case kept them (quite correctly) from coming to a guilty verdict.  The jury, usually unanimous, was in this case divided.  We talked about what the evidence was and where it was lacking, and then they all trooped off to see the drug detection dog, which is always the highlight of the third grade PJC tours.

Much as I like dogs, the most memorable thing about this year’s round of third grade tours was that for the first time in our office’s history, the Grinch was honorably acquitted.

Thank you letter

Dear Nobles County Juror:

It is part of my job to take cases to trial, but it is not part of your day-to-day job description to attend trials.  Still, we have a jury system, so it is your job to go to court when called to serve. Without you, the whole thing falls apart.

Everyone is busy these days with family, a job (or two), and the general business of living. Many people see being on a jury as nothing more than a huge imposition. And it is, of course: the pay is insultingly small; the work is demanding; the subject matter can be unpleasant, and the process is frustrating.  But luckily, people do serve, uncomplaining, on cases such as the one we just had in September in Nobles County.  To those jurors, and to every other juror that has ever sat on any case in Nobles County (regardless of the result), I say: thank you.

Thank you for being part of the difficult process of evaluating evidence. Thank you for paying attention. Thank you for caring about the result. Thank you for your patience during a process about which you have perhaps limited understanding and over which you have no control (until the end, when all the control is yours).  Thank you for listening to and looking at things that no one really wants to know about,  and thank you for being a witness to someone else’s distress.

It isn’t easy. But we are grateful, and we all benefit by your service. Not just the people involved in the case you saw, but all of us, because our jury system continues to exist and to work.  Again, thanks.

Delinquency court

Can we “throw the book” at juveniles? In light of the recent emails regarding some young alleged vandals, that question is being addressed here. The answer is:

Not really.

Children are still children and the system is set up on the assumption that they will make mistakes and do dumb stuff as they grow up.  The system also assumes that there is a need to punish them, but that punishment is tempered because the offenders are children.

Teenagers, especially those over 16, can be penalized more and can even be certified as adults and tried and sentenced in adult court. (The crime must be very serious and usually all other options in the juvenile court must have been exhausted. Certification is not always easy to accomplish.)   Children who commit traffic crimes can also face some fines in adult traffic court.

But generally speaking children can’t be sentenced to jail. The penalties for children tend to be fines, community service, denial of access to a vehicle, treatment, out-of-home placement, and restitution. Just like with adults, the penalties vary based on the nature of the offense and the child’s record.

A child in court in Nobles County on that child’s first felony level offense might be ordered by the court to do 50 to 100 hours of community service.  Repeat felony offenders may do more community service or may face an out-of-home placement.  50 to 100 hours is a meaningful penalty for a child.  Consider how an adult views a drive from Worthington to Minneapolis, versus how a 10-year-old views the length of that same trip: children don’t experience time the same way adults do.

Restitution, or repayment of the damage done, is something that can be ordered, but parents can’t be ordered to pay on behalf of the child as part of a juvenile delinquency case. (What they may be ordered to pay in a civil action may be a different story.)  A child who is too young to work is not likely to be ordered by the court to make any current payments for restitution.

Minnesota law says that children under the age of 10 are too young to be criminally liable for what they do, and kids that young can’t be taken into juvenile court on a delinquency charge. Under some circumstances, there can be a child protection case filed when a child under the age of 10 has committed a delinquent act. However, if parents have demonstrated an appropriate response to the child’s behavior, and have been willing to accept services recommended by the County, the County may be satisfied without taking the child to court.  The expectation is that parents will be more effective with their own children at that age, and that the parents will use appropriate discipline and deal with the situation so that the children learn from what has happened and don’t repeat their misbehavior.

In my experience children who are 10, 11 or 12 sometimes have trouble understanding what is going on in the courtroom and making the connection between what they did wrong and the court process meant to punish that behavior. So taking them to court weeks after the event may not be as effective as a more immediate response by their parents.

Should children have consequences for what they do–absolutely.  Does the law provide a mechanism for that–in some but not all circumstances.  For very young children, the law assumes and requires that parents deal with the misdeeds of their very young children.  Parents know what punishment will be most meaningful and parents can provide that punishment with an immediacy that the court system can only dream of.  With very young children the system is there to back up the parents with discipline and needed services.

I have said in earlier blogs that I am not going to use this space to tell people what we are going to do in specific cases, and that is still true. Our office will review the matter that gave rise to me writing this, and we will take appropriate action. Because children are involved, the resolution of the case may not be publicized. But we do take these cases seriously.  And I hope it is useful for people to know a little more about what the system is for juvenile offenders.

After the storm

Some of this information you may already have gotten from other sources:

Sheriff Kent Wilkening is the Public Information Officer. That means that Kent is going to be the source of accurate information. We know there rumors going around, and want people to know that he is the source of correct information.  If we hear information that is questionable, we should let him know so he can nip rumors in the bud.

Groups or individuals in the community who are interested in volunteering to help with the clean-up effort are asked to contact the Nobles County Emergency Operation Center at 507-295-5359. Joann Bartosh with Nobles County R.S.V.P. will be coordinating volunteers for the relief effort. If groups and individuals register through the EOC we can track volunteer hours. Volunteers should wear sturdy shoes, bring their own gloves if possible, and dress appropriately for the weather.

Anyone physically unable to move debris to the boulevard for pick-up, or anyone who knows someone who needs that kind of help, please contact the EOC so that any available volunteers can be put to work. The EOC will continue to communicate with community officials throughout Nobles County, but any city officials in Nobles County who are aware of individuals in their community who may be in need of assistance should also contact the EOC.

Nobles County Engineer Steve Schneider is the debris coordinator.

Beware of scams. With an emergency situation, a lot of people are generous with their help, but there are also people who will show up and try to take advantage of the situation. If someone shows up and wants you to hire them to clean up you property and haul stuff away, be cautious. It is ok to ask for credentials. Worthington does require transient licensing. I don’t believe licensing is required out in the county, and am not sure what other cities in Nobles County require in terms of licensing.   Make sure you know what documentation your insurance company will want. Make sure that you know what your insurance company will cover. If someone wants payment in cash, in advance and says they will come back at a later date to do the work, you run the risk of paying for a service that will not occur.

Submit your damages to your insurance company for personal property damage. As of now it is unknown what programs if any will be available to help people out with the personal costs people incurred as a result of the storm.  It won’t hurt to keep records, but there is no assurance that there will be money for individual losses.

Finally, with generators going on and off, food safety is an issue, and we urge people to check out the extension website here about how long food can be kept when the power has gone off.

Here is another site on trees and shrubs after an ice storm.


When is a jury not a jury? ANSWER: When it is a grand jury.

No, this is not an example of the weirdness of lawyer humor.

Over the years we’ve had a dozen or more “regular” jury trials set on the court calender every month. In the time I have been here (almost 20 years) we’ve probably had an average of one or two jury trials a month that don’t settle and actually go to trial. Those of you who have not been on a jury have seen “Twelve Angry Men” or “My Cousin Vinnie” or any of a number of TV shows that deal with Law and Order, so we know how “regular” juries work.

By contrast, there have been only a handful of grand juries that have been convened in Nobles County during my time here. Grand juries are almost never directly the subject of movies or TV plots, and proceedings are not public, so there is little chance to find out what they are all about.

I know I promised that my next blog would be about revocations, suspensions and cancellations of driver’s licences, but forgive me if I kick that down the road and do this first. I want to give you some information about grand juries, mostly by showing how they are different from “regular” juries. To make things easier, I will refer to them as “jury” and “grand jury” and just drop the “regular”. I am limiting my comparison between a jury that sits on a felony case and a grand jury. Here is the primer, then, on the difference between a jury and a grand jury.

What is their size and composition?

A felony jury has 12 members (though there may be one or two alternates if the trial is to last any length of time). A grand jury, by law, must have no fewer than 16 and no more than 23 people. All of those on a grand jury participate in the deliberations.

When do they serve?

Several times a year the court administrator in Nobles County makes up a master jury list and the people on that list are on call for whatever jury trials are going to come up during their time of service. When we gear up for trial, a group of people from that list is told to report for jury duty. The county administrator also chooses the people who will serve on a grand jury, but the practice here is only to select a grand jury when we need to have one. Technically those who were selected for the grand jury are also on call for a period of time, but the reality is that they usually only sit on the one case they were originally called in to hear.

What is their function?

A felony jury decides whether the prosecuting authority has proved beyond a reasonable doubt that a criminal defendant is guilty as charged. A grand jury decides whether there is probable cause for a person to be charged with a crime. (Though technically we say that a prosecutor “charges” someone with a crime and that a grand jury “indicts” someone.)

Who presents the evidence?

In a jury trial, both the prosecutor and defendant have the opportunity to present evidence. They each question each other’s witnesses. In a grand jury, the prosecutor presents the evidence; no defense attorney is present. Members of the grand jury can ask questions of the witnesses.

What evidence do the jurors see?

In a felony jury trial, the defense attorney has a chance to question whether certain prosecution evidence should be shown to the jury, and the judge may decide that some of the evidence the prosecution has may not be presented. In a grand jury there is no defense attorney yet (because there is no defendant yet) and there is no judicial determination of admissibility. Therefore the prosecutor has to think ahead to whether certain evidence is likely to be admissible at trial before using that evidence as part of the presentation to the grand jury. The grand jury can ask the prosecutor to call additional witnesses. The prosecutor instructs the grand jury in the law and the possible charges.

Who can be present?

A jury trial is open to the public, unless the presiding judge decides there is a sufficient reason to close it. (That happens rarely.) After a jury trial, jurors are allowed to talk about their experiences. Grand juries are closed to anyone not directly involved. While the existence of a grand jury is not secret, but pretty much everything else about it is. No one can be there except the grand jurors themselves, the prosecutor(s) actually involved in presenting the evidence, and the testifying witness (with an interpreter if needed). No one present at the grand jury proceedings is allowed to talk about the testimony that was presented or the deliberations. If there is a transcript of the proceedings prepared, that transcript will identify grand jurors only by the number assigned to them.

Does the defendant have the right to be there?

A defendant has the right to be present at a jury trial, to question witnesses testifying and to present evidence. Because the grand jury is not making a decision that will land a person in jail, but only deciding whether someone should be charged with a crime, the potential defendant has no right to be there. That person may be invited to attend, however.

What are they deciding?

In a felony jury trial, the jury is deciding whether the defendant should be convicted or not. They may also be deciding certain sentencing issues. A jury in a felony crime can only make a decision on the crimes put before them and the culpability of the person that is the defendant in that case. By contrast, a grand jury is deciding not only what the charges should be (and that could include charges other than the ones originally suggested by the prosecutor) but also who should be charged (it could be someone not suggested by the prosecutor presenting the case).

What kind of cases do they hear?

A jury will hear any kind of felony case. Anyone charged with a felony criminal offense has the right to a jury trial, so unless the defendant decides to give up that right, a felony case will be presented to a jury. Most felony cases are charged out by prosecutors, though, not grand juries. Grand juries hear cases that are difficult for the prosecutor to decide, cases that are politically charged, and cases that involve possible first degree murder charges. The law in Minnesota is that a person can’t be convicted of first degree murder unless a grand jury made the charging decision and issued an indictment.

How many have to agree?

All 12 on a jury must agree for there to be a conviction. On a grand jury only 12 (of the 16 to 23 panel) have to agree for there to be an indictment.

I know this will not answer everyone’s questions on how a grand jury works, but I think I have gone on long enough for today. If there are questions that related to grand juries or to “regular” juries, but not to a grand jury or jury trial on a specific case, ask and I will answer if I can.

“Back in my day…”


My sister, who is a few years younger than I am, prefaces talk of her younger years with a creaky, sing-songy, old lady-croak, “Back in my day…” Imagine I am doing that now, when I talk about areas of practice that have changed a lot since I started out in practice. One of those areas of law is child support.

It used to be that the court figured child support only based on the income of the non-custodial parent, usually the dad. And no matter how little money a person made, child support was based on a percentage of that income. But half a dozen years ago some fairly big changes were made. One of those changes is that now it is assumed that both parents are capable of being employed, whether or not they actually are, and regardless of how much they actually are working or bringing home as income. To determine child support now, we take add together both parents’ income or the amount they are capable of making. Then we figure out how much child support is due on that income. We then portion the obligation out between the parents according their share of the total income. (It is easier than it sounds, mostly because there is an online worksheet (which you can find and fill out at . You plug in the numbers and the worksheet spits out the result.)

Also, there is some recognition now that even the parent who does not have custody still has some fixed costs to have the child come stay with them, and so there is a credit, depending on how many overnights the child spends at the home of the non-custodial parent. Another big change is that we now recognize that everyone needs a certain minimum amount of money just to live–that minimum amount is called the “self-support reserve”. So, if a person’s income is below that amount, child support may be set at a flat rate of $50 for one child or $75 for more than one child.

Another area that has seen a lot of changes is that of civil commitment. When I started practicing in the 1980’s, mental health treatment was much more focused on treatment centers in general and on Willmar Regional Treatment Center in particular. Since then the focus changed and now services are provided on a more out-patient, community-based way. That means that Willmar Regional Treatment Center is not where we send people any more. The goal now to is avoid people being committed, and when people are hospitalized, the goal is to keep people in the hospital for a very short period of time. In the last few years there has been a local Crisis Response Team (that can be contacted during business hours through our Mental Health Center). That team works with community members that need help to try to get them that help without the need for an emergency hold. Other community based organizations work to support people as they live and try to deal with their illness here in the community.

Of course, there are a lot of other changes that come to mind, the law keeps changing to keep up, even with things like inflation. Theft of $500 used to be a felony, but it has been “downgraded”, because $500 doesn’t buy what it used to anymore. Our definition of “theft” has continuously had to evolve to keep up with reality: when people paid with checks, we had to add check forgery and insufficient funds checks as crimes. Now we also have financial transaction card fraud, and identity theft as technology has continued to evolve.

As that set of laws gets longer and longer, it gets more and more difficult for lay people to know or understand how the laws interact with each other, how they change, and what they mean. But we have to try to keep the laws relevant to our lives, our technology, and our sense of what is right and wrong.

If you have questions about how the law works in general, let me know. This is not an advice column, and I can’t talk about ongoing cases, but, for example, someone asked me recently what the difference is between driving after suspension, driving after cancellation and driving after withdrawal.  Good question, that I will answer in a future blog. Stay tuned.



The answer to: “What exactly do you do, anyway?”

What do we do in our office?  Everyone who has ever watched “Law and Order” knows part of the answer to that question:  We represent the government in the prosecution of crimes. Those cases can be go-directly-to-prison felonies, or they can be pay-at-the-window traffic offenses, or anything in between. Charges can include things like shining raccoons, abuse or neglect of animals, and planting crops too close to the right-of-way.  We are involved in all aspects of those cases after the investigation is complete. At the onset we make charging decisions, refer the case back for more investigation, or we can convene a grand jury to make the charging decision. We handle the hearings and trial and post-conviction hearings, if any. 

We handle juvenile delinquency cases, which are the cases where children break the law.  Most of those cases stay in juvenile court, but some are referred to adult court and some are handled as a kind of half adult-half juvenile thing called “Extended Jurisdicton Juvenile”. But we do other things as well besides deal with crime.

Some of those are related to criminal cases. For example, we do forfeiture actions related to drug and DWI and certain other crimes. We research, write, and argue appeals (on various cases, not just criminal ones).

We are the attorneys for the county, so we represent county agencies in a variety of settings, such as child support hearings, child protection hearings, civil commitment and public guardianship cases.  If we don’t have the expertise in the office to do things like bankruptcy, labor law, or real estate tax appeal cases (all very specialized areas of law) , we find someone for the county to employ to cover those cases.,  

Our office reviews contracts and legal documents (and you would not believe how many of those there are–I am amazed). We participate in Citizen’s Academy, and things like this blog, to help educate people about this office and about the law. We represent the Nobles County Community Services Agency at licensing hearings. We collect on debts owed to the county. We do condemnation actions. I act as the county’s data practices officer.  I am asked to review election ballots to make sure they are properly created, and I have to sign off on liquor licenses.

Then there are all the things that I never had to do before, but now am learning about, things that relate to helping run the county. Things like advising the board of commissioners, individual department heads, and various boards and commissions (like the library board and the planning and zoning commission).  And working with department heads to make recommendations to the board regarding county policies.

And there is this office to run. Which means managing employees, making sure that cases are moving, that the work load is evenly balanced, and that we are planning for the future.  The court system is moving to a more paperless world, which means that soon court documents will be created and filed electronically, and we have to prepare to be integrated into that system.

As I have said before, we don’t and can’t give advice to members of the public, because we don’t represent individuals, we represent the county as a whole, and the county government. However, we do get a number of calls from people, and we try to steer them in the direction they need to go, telling them where to find the answers, when we can. 

Stay tuned. I hope to talk about some of the things we do in more detail later, and I want to tell you about changes in the law. I hope that if anyone who reads this has a question about one of those things, they will contact me and I can try to answer it. I will not discuss specific cases in this blog.

The “harvest” from the legislative session

Every year about this time we get a summary of the new laws that were enacted at the latest legislative session.  This year’s summary, which only gives the highlights that would be of interest to a county attorney’s office, runs 50 pages.  Some of these are new laws and some are modifications of laws already on the books.

“The laws on the books” take up several feet worth of shelf, by the way. They fill 15 books (each of which has about 1500 pages). Some people assume that all lawyers know all the law.  We can’t.  There are too many laws, and each one can be modified at any time by the legislature, or overturned by the appellate or supreme court. (You can look up the current laws, as well as the newly enacted laws, called “session laws” at

In addition to laws made by the legislature, there are local laws enacted by counties or cities. Also, various agenies have rules. If you apply to be a foster parent, for example, there are rules that govern how that application has to be processed. Then there are rules made by the court system that govern cases that get processed by the courts. Some of those rules are general, and some are specific to the type of case being handled. For example, there are both laws and rules that deal specifically with how probate matters have to be handled, and bankruptcy, and child support. You get the idea.  This is why lawyers tend to specialize in one area of law.  (I haven’t forgotten that I promised to tell you what we do in this office, and will get to that next time.)


Hello, Nobles County

Greetings from the Nobles County Attorney’s Office.  Shortly after I was appointed county attorney (March of this year), someone said, “Congratulations!…….What is it you do, exactly?” I knew then I needed to do something like this blog so people would know more about what the county attorney’s office does for the people of Nobles County.

I hope to use this blog to tell people something about that in the coming months. I won’t be talking about specific cases in this blog, but about what our office does and about various legal issues and concerns.  Maybe some general information about how the court system works. 

I will not be giving out legal advice to people.  That is because I and my office  represent the county as a whole, and the various agencies and departments within the county. We don’t and can’t represent the individual citizens of the county.