Legal Question in Criminal Law in Minnesota

Re: Move to dismiss

Thank you for your question. Although I do not really have enough facts to give you a thorough answer, perhaps this will help.

First, whether or not your son was the instigator of the fight (that is, the one who "started" it), he can be charged with disorderly conduct and assault. It is often a very difficult thing to determine who "instigated" a fight. Did it start with the first punch, or with a verbal challenge before that, or perhaps with some tough body language even before a word was spoken? In general, if two or more kids in a school setting are involved in a fight, and no one retreats, it is likely everyone will be pulled into court and charged (in juvenile court) with disorderly or assault.

Second, the loss of the school's video tape does not provide grounds for dismissal of the case. That is only one piece of evidence. The case could proceed with or without that video, or the cell phone video. In fact, the case could proceed if there was no one to witness the disturbance but the two kids who were fighting.

Finally, I can't really comment on the public defender's conduct. Most PD's are, in my experience, highly experienced and know how to work the system quite well. They may not put on a great show, but then many of their cases don't require that. If you want more personal attention on a file, I would suggest considering a private attorney -- although you will have to pay for a private attorney.

Good luck.

Re: Move to dismiss

It is unlikely that a motion to dismiss in this case would be successful. Your son makes the decision as to whether or not he wants a trial, not the public defender.

Re: Move to dismiss

1. If he was only defending himself, then he can make an "affirmative defense" of "self-defense." In Minnesota, this normally requires adherence to a "duty to retreat." If he could have retreated, but did not, prosecutor will argue it is not self-defense. On the defense we often find that retreat was not possible under the circumstances.

2. Video evidence is not required for prosecution. An accused can seek a legal remedy for destruction of exculpatory evidence, but this is problematic if the evidence was possessed and destroyed by someone other than police or prosecutor. The remedy, if granted, could include dismissal or a jury instruction that the evidence must be presumed favorable to the defendant, since the state destroyed it.

3. In my experience, public defenders are good lawyers working in a terribly underfunded system with far too many clients and cases -- trying to do the best they can in those circumstances. It would be better to pay enough for a good private defense lawyer to be able to put some work and time into it, to increase the chance of a good result.