Author Archives: Alan F. Pendleton, "Of Counsel" Martine Law Firm, Director of Mentorship & Education, Former District Court Judge

PRESS RELEASE – BEST LEGAL BLOG CONTEST FINALISTS

Posted on September 3, 2015 | 2 comments

blog-nominee-altFor Immediate Release: Judge Pendleton’s “2015 Judicial Training & Education Blog” Has Been Nominated for The Expert Institute’s Best Legal Blog Contest.

Minnesota readers have spoken, from a field of more than 2,000 potential nominees, the 2015 Judicial Training & Education Blog has received enough nominations to join the top 250 legal blogs participating in one of the largest competitions for legal blog writing online today. With an open voting format that allows participants one vote per blog, the competition will be a true test of the dedication of each blog’s existing readers.

The Judicial Training Blog is the only Minnesota Blog to make it this far in the education category of the competition. Each blog will compete for rank within its category. The three blogs that receive the most votes in any category will be crowned overall winners. The competition ends at 12:00 AM on October 9th, at which point the votes will be tallied and the winners announced.

Readers can vote for the “2015 Judicial Training & Education Blog” at: https://www.theexpertinstitute.com/blog-category/education/

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NORGAARD PLEA OF GUILTY – Unable to Recall Facts (15-16)

Posted on August 28, 2015 | 1 comment

NORGAARD PLEA OF GUILTY: A Norgaard Plea is a procedure that governs situations where a defendant wants to enter a plea of guilty (usually in order to take advantage of a plea agreement) but is unable to recall facts damnesiaue to intoxication or amnesia. Unlike an Alford plea (see update 14-18) in a Norgaard plea, defendant does not make a claim he is innocent. State v. Ecker, 524 N.W.2d 712, 716 (Minn.1994); State v. Johnson, A14-1605, Minn. App. June 29, 2015.

To the dismay of the Court of Appeals, there are certain judicial mistakes/oversights that tend to reoccur with every new generation of judges and attorneys. Two of the most common oversights involve Alford and Norgaard pleas of guilty. These oversights almost always involve failure to make a complete record. Creating a full and complete record to support any plea of guilty should be viewed as a collaborative effort shared by both judge and attorneys.

The proper procedure for an Alford plea of guilty can be found in Update 14-18, dated October 8, 2014.

This week’s judicial update outlines the procedure that the district court must follow before a Norgaard plea of guilty can be accepted.

TO READ THE FULL UPDATE CLICK ON THE FOLLOWING LINK:

PendletonUpdate 15-16

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Posted in GUILTY PLEAS, Norgaard Plea

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FELONY SENTENCING & PROBATION VIOLATION HEARINGS: The one thing a judge should never say or promise (15-15)

Posted on August 12, 2015 | Leave a comment

judge-pointing-finger-300x286GENERAL RULE:  During a felony sentencing or probation violation hearing (PVH), although judges may warn defendants that a violation of probation can have serious ramifications, the court should NEVER PROMISE, MAKE ANNOUNCEMENTS OR OTHERWISE IMPLY that the court will send the defendant to prison if he/she violates conditions of their probation, or that the court has otherwise prejudged the proceedings.

Warning: If such a statement is made and a reasonable examiner [i.e. an objective, unbiased, layperson with full knowledge of the facts and circumstances] would question whether the judge could impartially conduct the proceedings, then at the request of the defendant, the judge would likely be disqualified from the probation violation hearing. State v. Finch, 865 N.W.2d 696 (Minn.2015).

TO READ THE FULL TRAINING UPDATE CLICK ON FOLLOWING LINK:

PendletonUpdate 15-15

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Posted in Never Promise Prison, Never Promise Prison, PROBATION, SENTENCING

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JUDICIAL & LEGAL WRITING: The Number One Rule for Improving = CUTTING (15-14) (Replaced by 20-02)

Posted on July 23, 2015 | Leave a comment

Thomas Jefferson VerbosityThere is a myriad of publications and articles dedicated to the improvement of legal writing. Unfortunately, in many of these materials, you need an English degree to understand anything past the first paragraph. There is, however, a simple way to dramatically improve any style of legal writing that has nothing to do with dangling participles or misuse of pronouns, etc.  

“Cutting” down your writing is the key to making it better. Cutting does not require any particular knowledge of grammar or writing style.  This training update covers three basic steps that every judge and attorney should learn to follow.

TO READ THE FULL TRAINING UPDATE CLICK ON THE FOLLOWING LINK:

PendletonUpdate15-14 (replaced by 20-02)

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Posted in Judicial & Legal Writing: The #1 Rule for Improving, JUDICIAL PHILOSOPHY, RESOURCES & SAFETY

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IMMIGRANT CRIME VICTIMS & U-VISA CERTIFICATION: What it is and Why Should Judges Care? Ten facts that every judge (and attorney/officer) should know (15-13)

Posted on July 10, 2015 | 2 comments

u-visa

U-VISA CERTIFICATION: In every judge’s career there will likely come a time when they are asked to sign a U-visa certificate on behalf of a noncitizen crime victim. The decision whether or not to sign the U-visa certificate is completely subject to the judge’s discretion. However, in order to intelligently exercise that discretion the reviewing judge, at a minimum, should be familiar with 10 basic facts regarding this Federal program. In addition to judges, Congress also included law enforcement officers and prosecutors on the list of persons authorized to sign U-visa certificates.

Both of the enclosed training updates (a Minnesota version and a National version) have been fully vetted by the U.S. Citizenship & Immigration Services (USCIS) and the National Immigrant Women’s Advocacy Project (NIWAP). The National version will be posted and stored on the NIWAP’s online U-visa resource library.

TO READ THE FULL TRAINING UPDATE CLICK ON THE FOLLOWING LINK(S):

PendletonUpdate15-13 MINNESOTA

PendletonUpdate15-13 NATIONAL

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Posted in DOMESTIC VIOLENCE, Immigrant Crime Victims & U-Visa Certification

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JUDICIAL DECISION-MAKING: Dangers of “Implicit Bias” & “Decision Fatigue” (15-12) (Revised by 20-03)

Posted on June 25, 2015 | 1 comment

decision.fatigueTHE PROBLEM:  In a perfect world judges make decisions by applying legal analysis to the facts of a case in a rational, fair and deliberate manner. But in the real world, we know that judges, despite their best efforts, are often subject to the same foibles, biases and imperfections that affect everything humans do. We would love to believe that a judge’s rulings are solely based on rational decisions and written laws. In reality, they can be influenced by a variety of non-relevant factors that may be so subtle that they go mostly unnoticed by attorneys, the parties and most importantly, judges themselves. In order to keep this update short and concise, these non-relevant factors are broken down into two main categories:
1) IMPLICIT BIAS; and 2) DECISION FATIGUE.

TO READ THE FULL TRAINING UPDATE CLICK ON LINK BELOW:

PendletonUpdate15-12

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Posted in Judicial Decision-Making: "Implicit Bias" & "Decision Fatigue"

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USING TRANSCRIPTS OF AUDIO RECORDINGS DURING TRIAL – The “Olkon” Cautionary Jury Instruction & Protecting Your Court Reporter (15-11)

Posted on June 15, 2015 | Leave a comment

courtroom_tech

GENERAL RULE:  Transcripts of audio recordings to be played during trial may be provided to the jury to help the jury or judge understand what is being said in the recording. The following are 7 topics of interest that include information about using audio recordings and transcripts at trial that judges and attorneys need to know:

1.  Audio recordings must be admitted into evidence;

2.  The need to provide transcripts to the jury during audio playback is generally caused by two circumstances;

3.  Procedure for use of a transcript during the audio playback;

4.  Who has responsibility for producing the transcript;

5.  Protecting your court reporter – or they may suffer the consequences;

6.  “Olkon” cautionary instruction on use of transcript of audio recording;

7.   Replaying audio recording during deliberations.

CLICK ON LINK BELOW TO READ THE FULL TRAINING UPDATE:

PendletonUpdate15-11

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Posted in Audio Recordings & Transcripts at Trial, TRIAL ISSUES

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IMPEACHMENT: PRIOR INCONSISTENT STATEMENTS – 8 Judicial Observations and 2 Sample Impeachment Scripts (15-10)

Posted on June 2, 2015 | Leave a comment

 

BB_MAS_Article_illustration_cNote for Judges Willing to Mentor and Educate: As most trial judges know, many attorneys do not know how to properly impeach a witness using a deposition or other prior inconsistent statement. Following jury trial many attorneys ask the presiding judge for constructive criticism on the attorney’s performance during trial. These post-trial judicial critiques are golden opportunities for the judge (if willing) to mentor and educate a young attorney. This training update and sample impeachment scripts are intended to serve as a set of general principles and guidelines for trial attorneys to learn and follow.

TO READ MORE CLICK ON LINK BELOW:

PendletonUpdate15-10

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Posted in Impeachment - Prior Inconsistent Statements

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“Paradee” Motions – What Judges Need to Know: Seven Basic Facts & Two Sample Orders (15-09)

Posted on May 15, 2015 | 1 comment

What is a “Paradee” Motion? Criminal defendants have a broad right to discovery in order to prepare and present a defense. When a defendant requests records that are subject to the Minnesota Government Data Practicesconfidential.records Act or other legislation, the court may screen the confidential records in camera to balance the right of the defendant to prepare and present a defense against the rights of victims and witnesses to privacy. However, this in camera review is not a right and defendant must first establish a “plausible showing” that the information sought would be “both material and favorable to his defense.” This Training Update will discuss seven basic facts that judges need to know to properly rule on a Paradee motion.

CLICK ON LINK BELOW TO READ FULL UPDATE

PendletonUpdate15-09

 

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Posted in "Paradee" Motions, CRIMINAL PRETRIAL

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TOP TEN LIST – FUNNY JUDICIAL QUOTES: Judges can be funny too, sometimes (15-08)

Posted on April 29, 2015 | 1 comment

FUNNY JUDICIAL QUOTES: In honor of this being thfunnyjudgee 100th Judicial Training Update issued since 2010 I offer a bit of uncharacteristic judicial humor. If anyone has ever questioned whether judges too have a sense of humor, you need look no further than this top 10 list of the funniest judicial quotes found in the legal blogosphere.

PendletonUpdate15-08

 

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Posted in Funny Judicial Quotes, JUDICIAL PHILOSOPHY, RESOURCES & SAFETY

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