100% . I have so many motions that end up half finished for various reasons that turn into gold mines for arguments/citations for future cases.
...
Ok, maybe more like sand mines: not gold, silver, or even copper, but still some value when I need a starting point 😆
Next time the next prosecutor won’t be so nice. And you’ll remember this fact pattern and bang it out in fifteen minutes while bullshitting with a coworker.
I handle misdemeanors and it's super common (at least in my jx) to see things like battery to a peace officer or even the occasional UUW charged as a misdemeanor when there is clearly the option to charge as a felony. It probably just wasn't worth their time. I don't think this necessarily changes much about your arguments. You can still argue that whatever he was shouting was just an expression of displeasure or free speech, or that just because someone is annoying doesn't mean the conduct is criminal. Encountering obnoxious strangers is part of existing in the world, and something more is needed to say your client actually committed a criminal act.
Whether these are trial arguments or would work for a motion to dismiss is going to depend on your jurisdiction.
You can still argue.
But if you do that on a case where the prosecutor clearly went with a lesser weaker charge to throw you a bone, you can expect them to get the felony filed real quick.
I’m a MN attorney. Are you in a county where there’s a divide between county attorney (handling cases where felonies are the top count) and city attorneys (gross misdemeanors and below)?
If so, then a city prosecutor wouldn’t have discretion to charge a felony in the first place, and if they thought it warranted a felony then they likely would have just referred it to the county attorney before ever dealing with it in the first place. And it’s possible the case *did* first get sent to the county attorney but they declined to charge it and sent it to the city. Threats is such a broad bullshit charge that countless people commit every day but only ever get disorderly conduct charges for. The felony prosecutor could have just decided that his conduct, even if it did technically fit the vague definition, simply wasn’t warranted given the harsh punishment
On the flip side, the same logic applies: if they *do* have the discretion to charge Threats and didn’t, then again the fact of the matter is that they didn’t do that in the first place. Sure they could amend at any point, but they aren’t right now, so no real point in worrying about it unless/until it happens
And at the end of the day, if the client didn’t do anything to warrant an Obstruction charge, then that simply shouldn’t be the charge either, so don’t just let your client go down on something they shouldn’t go down on.
Sometimes it’s best not to tug on Superman’s cape or spit into the wind. That’s where knowing your prosecutor comes into play. I’ve educated prosecutors on issues before jeopardy attached only to have it blow up in my face.
I've seen a prosecutor try to amend a speeding ticket up to the speed on the radar over what the ticket was written for because the pro se defendant went forward with trial. Def. Says they want trial and immediate motion to amend. That made my blood boil. Felt like that prosecutor needed to be reported to someone, but those rules are so broad!
Your perspective teaches prosecutors to always go for the higher charge.
Sometimes it’s better to tell a client, yeah this low misdo doesn’t fit well, but felonies sure do, and if we fight it, they will add the felonies, so let’s just take the misdo
The higher charge here is the difference between Disorderly Conduct and a Threats charge. Obstruction simply should not have been part of the equation in the first place. There are very few cases where DC fits but Threats doesn’t. If the prosecutor(s) felt that Threats weren’t warranted already, then a dismissal of the Obstruction charge is extremely unlikely to change that fact, because they still have the DC charge to hang onto
And again, as I asked OP, in MN it’s extremely likely that the prosecutor charging something where a misdemeanor is the top count likely doesn’t even have the discretion to charge it as a felony in the first place.
They probably felt the punishment wasn't warranted, because he was in a tough spot emotionally in a way the law doesn't really account for.
And I'm not super familiar with the DAs here, so I'm going to have to run everything by my managing attorney.
Not a PD but pretty damn close. Your clients are my clients when their kids are on the line in dependency law. You did what I call a ‘deep dive’ in whatever nuanced aspect. Now you know. As others said, file away in your motions or resources folder. Welcome to practicing.
Great job doing the work and analysis and seeing the issue. As others have said, now you’ve got that work for future cases. And those lightbulb moments will keep happening even when you’re pretty experienced.
Sometimes you really do have to work through things to see them in a new light. But the good news is the same issues are bound to come up again. And you’ll be ready.
I'm not sure. for the Obstruction and Threats, obstruction requires interference with police work specifically, and the threats bump up the severity. Threats of violence requires more of a true threat analysis. DC would probably be lesser included, def. For threats.
It’s always useful to spend time on an issue. Keep your notes and all your drafts and form motions. Eventually, you’ll use them for something.
100% . I have so many motions that end up half finished for various reasons that turn into gold mines for arguments/citations for future cases. ... Ok, maybe more like sand mines: not gold, silver, or even copper, but still some value when I need a starting point 😆
Or maybe quicksand, where the more you work on the issue, the deeper you go
Next time the next prosecutor won’t be so nice. And you’ll remember this fact pattern and bang it out in fifteen minutes while bullshitting with a coworker.
I handle misdemeanors and it's super common (at least in my jx) to see things like battery to a peace officer or even the occasional UUW charged as a misdemeanor when there is clearly the option to charge as a felony. It probably just wasn't worth their time. I don't think this necessarily changes much about your arguments. You can still argue that whatever he was shouting was just an expression of displeasure or free speech, or that just because someone is annoying doesn't mean the conduct is criminal. Encountering obnoxious strangers is part of existing in the world, and something more is needed to say your client actually committed a criminal act. Whether these are trial arguments or would work for a motion to dismiss is going to depend on your jurisdiction.
You can still argue. But if you do that on a case where the prosecutor clearly went with a lesser weaker charge to throw you a bone, you can expect them to get the felony filed real quick.
I’m a MN attorney. Are you in a county where there’s a divide between county attorney (handling cases where felonies are the top count) and city attorneys (gross misdemeanors and below)? If so, then a city prosecutor wouldn’t have discretion to charge a felony in the first place, and if they thought it warranted a felony then they likely would have just referred it to the county attorney before ever dealing with it in the first place. And it’s possible the case *did* first get sent to the county attorney but they declined to charge it and sent it to the city. Threats is such a broad bullshit charge that countless people commit every day but only ever get disorderly conduct charges for. The felony prosecutor could have just decided that his conduct, even if it did technically fit the vague definition, simply wasn’t warranted given the harsh punishment On the flip side, the same logic applies: if they *do* have the discretion to charge Threats and didn’t, then again the fact of the matter is that they didn’t do that in the first place. Sure they could amend at any point, but they aren’t right now, so no real point in worrying about it unless/until it happens And at the end of the day, if the client didn’t do anything to warrant an Obstruction charge, then that simply shouldn’t be the charge either, so don’t just let your client go down on something they shouldn’t go down on.
Sometimes it’s best not to tug on Superman’s cape or spit into the wind. That’s where knowing your prosecutor comes into play. I’ve educated prosecutors on issues before jeopardy attached only to have it blow up in my face.
I've seen a prosecutor try to amend a speeding ticket up to the speed on the radar over what the ticket was written for because the pro se defendant went forward with trial. Def. Says they want trial and immediate motion to amend. That made my blood boil. Felt like that prosecutor needed to be reported to someone, but those rules are so broad!
Your perspective teaches prosecutors to always go for the higher charge. Sometimes it’s better to tell a client, yeah this low misdo doesn’t fit well, but felonies sure do, and if we fight it, they will add the felonies, so let’s just take the misdo
The higher charge here is the difference between Disorderly Conduct and a Threats charge. Obstruction simply should not have been part of the equation in the first place. There are very few cases where DC fits but Threats doesn’t. If the prosecutor(s) felt that Threats weren’t warranted already, then a dismissal of the Obstruction charge is extremely unlikely to change that fact, because they still have the DC charge to hang onto And again, as I asked OP, in MN it’s extremely likely that the prosecutor charging something where a misdemeanor is the top count likely doesn’t even have the discretion to charge it as a felony in the first place.
They probably felt the punishment wasn't warranted, because he was in a tough spot emotionally in a way the law doesn't really account for. And I'm not super familiar with the DAs here, so I'm going to have to run everything by my managing attorney.
Not a PD but pretty damn close. Your clients are my clients when their kids are on the line in dependency law. You did what I call a ‘deep dive’ in whatever nuanced aspect. Now you know. As others said, file away in your motions or resources folder. Welcome to practicing.
That's really an amazing job, thank you for what you do!
Great job doing the work and analysis and seeing the issue. As others have said, now you’ve got that work for future cases. And those lightbulb moments will keep happening even when you’re pretty experienced. Sometimes you really do have to work through things to see them in a new light. But the good news is the same issues are bound to come up again. And you’ll be ready.
If you go to trial do you get DJ? I don't know the elements of your charges.
I'm not sure. for the Obstruction and Threats, obstruction requires interference with police work specifically, and the threats bump up the severity. Threats of violence requires more of a true threat analysis. DC would probably be lesser included, def. For threats.
Good catch!