Sometimes a single, swift, butt-whooping can teach you much more than a
thousand hard fought victories. That was clearly the case in my very first
jury trial, which involved the alleged crime of Felony Welfare Fraud.
The trial occurred a few months after becoming licensed to practice law.
By the time I started representing my client, he had already been convicted
and was awaiting a lengthy sentence in North Dakota for a controlled substance
violation. My client was also charged with a controlled substance violation
in Minnesota. His wife had also been charged with Felony Welfare Fraud.
The entire theory of the Welfare Fraud case was that my client sold drugs
and did not report the income on his application for welfare. This allegedly
involved more than $500 dollars in unclaimed income, making it a felony
Even if my client had been convicted of both the drug crime and welfare
fraud crime in Minnesota, he would serve far less time than he was going
to serve in North Dakota for the drug conviction there. It was also likely
that Minnesota would allow its sentence to run concurrent with the North
Dakota sentence and he would serve the sentences at the same time. Thus,
my client had a tremendous amount of incentive to just cut a deal and
get back to North Dakota to serve his lengthy sentence for a non-violent
crime. My client was primarily concerned about the charges against his
wife. We worked out a "deal" regarding the drug charges, which
at the time was pretty cut and dry because of sentencing guidelines. Yet,
the prosecutor handling the welfare fraud cases would not drop the charges
against my client's wife.
At that time, several counties in Minnesota, and elsewhere around the state
and country, were using welfare fraud charges in conjunction with drug
charges. The goal, I guess, was to really stick it to drug users and addicts
on welfare. It seems the lengthy sentences and termination of parental
rights was not enough punishment for drug users and addicts. A conviction
for welfare fraud could disqualify them for such benefits in the future.
My client was not going to plead guilty to the Welfare Fraud unless they
dismissed the case against his wife.
They would not, so I took the Welfare Fraud case to jury trial. The county
attorney was a very experienced, old-school prosecutor. He could have
tried the case in his sleep. "Annoyed" would be nice way of
phrasing his feeling for having to try this case with some lawyer fresh
out of law school. It was a slam dunk for the government. My client had
already plead guilty to the drug crimes. He admitted to the drug sales
on the stand during the trial. Neither my client, nor his wife, reported
the income from these drug sales when they filled out the paperwork for
welfare benefits. 1 + 1 = 2, right?
Well, my client also testified that he had costs associated with these
drug sales. You see, the state had to prove over $500 worth of unclaimed
income to get a conviction on this felony charge. My client testified
after everything was said and done, he netted about $140 from sales involved
in the controlled buys.
I asked for instructions on net profits versus gross profits. I asked for
an instruction to the jury stating that the state was required to prove
that the net proceeds were greater than $500. The judge asked me for a
legal citation for such a proposition. I had nothing but a plea for common
sense. Well, the county attorney objected and the judge refused to instruct
the jury as I requested. The jury quickly convicted my client for a Felony
Welfare Fraud violation.
Not exactly the tale of grandeur one might expect from a section called
"Stories of Justice". Yet, the real story of this case is about
fighting for what is right. My client had a serious drug problem and was
a long-time addict. This is what led him to the middleman role in minor
drug deals, and his criminal dilemma in the first place. The notion of
treating people with drug problems like subhuman beings, worthy of a cage
and official government bullying makes me sick to my stomach, and is something
I will always stand-up to.
More importantly was the relationship I developed with my client. I spent
a decent amount of time with my client in jail discussing him and his
case. Despite living in the United States his entire life, my client had
not really learned to speak English very well. He understood it perfectly.
I would often visit him at jail, sometimes without an interpreter. We
would work through our discovery and prepare his case. Sometimes he would
speak to me about God and the bible. He was always trying to make sense
of his life and where he was at. Occasionally, he would sing in an effort
to learn certain words. One day while visiting my client at the jail,
he began to sing "You are my Sunshine". This hit me right in
the gut, because my Grandmother used to sing that song to me when I was
younger. My Grandmother, whom I was very close to, passed away while I
was in law school.
During summations in the trial, I thought about him singing that song and
got choked up in front of the jury. Here I was, a grown, professional,
man, nearly crying in front of room full fo people. For most this would
be an embarrassing way to start their litigation career. For me, it was
a bitter-sweet reward for the many roads I travelled to get to that point.
Despite the loss, I was now able to fully embrace the notion that I was
a lawyer. A trial lawyer.
It felt good to fight for my client. It felt good to get my first trial
under my belt. It felt crappy to lose. I hate losing more than just about
anything in life. This loss made me angry. It made me hungry. It pushed
me to keep trying cases.
Ultimately, the case made it to the Minnesota Court of Appeals and in an
unpublished opinion the Court agreed with my argument at trial. They agreed
that when determining unearned income, the costs incurred in securing
the unearned income must be deducted. They agreed that this should not
have been a felony level offense and remanded the case for sentencing
as a misdemeanor.
This is an example of fighting the good fight, even if you know you will
probably get your ass handed to you at some point in the process. Some
things are ultimately worth fighting for and something tells me the use
of Felony Welfare Fraud cases in conjunction with drug busts is not as
popular in the state of Minnesota as it once was 15 years ago. I may have
lost my first jury trial, but a small battle in the "war on drugs"
was won. More importantly, my belief in fighting to the bitter end was
Not the Victory, But the Action
Not the Goal, But the Game
In the Deed, the Glory.