There was a point in my life, almost five years ago, when I stopped to reflect. Something very central to my perception of the world needed reinforcement. I have always tried to do good for the world, but I constantly found my efforts falling short and my pleas for justice unheard – washed out by the din of entertainment, distraction, the uncaring attitude of others. I felt shame, unable to achieve social change, as I continued to battle everyday struggles. This distracted me from my own accomplishments.
Life gave me two clear options; either keep living the same way without gratitude for all of my experiences – good and bad, or I could start living with gratitude for everything I am given. The choice was easy then, but the transition was difficult and still requires constant introspection. Once I owned up to my shortcomings and practiced gratitude for past trauma and mistakes, my life saw a rapid unfolding of positive change. An integral part of this about-face is compassion.
You may notice in my political ad from 2014 (above), the first dancer we came across was Compassion. To develop the story and idea I looked to the things that gave me the courage and the foundation to become a lawyer and also to run for office in order to act as a voice for others. That foundation is what gets me up in the morning and the capstone is compassion.
I believe it best to start the day with good intentions, and that attitude hasn’t changed while campaigning. I wake up in the morning and remind myself that gratitude, mindfulness, compassion, justice, and determination are the things which strengthen my resolve and keep me from becoming my worst when faced with environment that surrounds the legal and political realms. Let’s face it, law and politics have a tendency to tear people down with pessimism.
What is Compassion in the Law?
Compassion is probably not something regularly associated with the law. We are led to believe the law should be dispassionately guided by fact and reason, while pushing empathy aside. However, compassion keeps the law rooted in justice. Those of us called to administer justice as officers of the court must never forget its highest purpose: human dignity.
When the legislature creates a law, for better or worse, ambiguity is usually present and sometimes the rights enumerated in the state and federal constitutions are given short shrift. The law provides room for interpretation, and while a judge is bound by statute, their decisions are an interpretation.
I don’t simply make up the law as I see fit when I’m advising clients, but I too interpret it. In doing so, it is essential I have a sense of compassion to uphold my client’s dignity. Without compassion the law is merely a tool for the strong to rationalize their position, rather than an instrument for social justice and a tool for interacting with clients.
In Minnesota, there are concrete things we as attorneys can fight for to further social justice. For example, ending the war on drugs, bolstering the patient-doctor relationship, and protecting the right to be heard in court are all areas where a lawyer can offer support. Compassion means acknowledging the right to a voice in justice.
While the war on drugs has done little to nothing to decrease addiction rates, it has exponentially increased incarceration and correctional control, caused extreme racial disparities, and eviscerated the right to a fair trial. All of these are undue burdens on the people of Minnesota. As your attorney, I will combat these discouraging trends and remain vigilant in finding cases where the government attempts to use poor excuses in supporting failed policies and the positions of the elite. Attorneys hold great power in persuading courts by fighting for your rights. This is basically the constitution in play at the front lines.
Failed Prosecutorial Priorities
Back in 2014, I pointed out that Melendez-Diaz v. Massachusetts was, or should have been, an opportunity for Minnesota’s Attorney General to defend constitutional rights. This case exemplifies a lack of compassionate priorities and is a case in which I would have fought for the accused’s rights to a fair trial and the ability to confront their accusers. In Melendez-Diaz, our incumbent Attorney General joined in fighting against this basic right because the “expense” on the state was too much.
“As stewards of the public’s resources, the amici States have two interests. The first is to spend the lion’s share of the public’s money where it matters most: on the front lines, fighting and preventing continued drug abuse. The second is to keep our technicians in the laboratory, whenever possible, to handle the daily influx of drug analysis requests and to chip away at the backlog of cases… “
Of course, the practical effect is someone who is accused of a crime does not have the right to confront their accuser; a right afforded by the Confrontation Clause of the 6th Amendment. The state will not provide their lab tech to prove, as the Constitution requires, that the defendant is guilty. In a system where the scales of justice already weigh heavily in favor of the power to prosecute, we as defense attorneys make efforts to stand on the side of the Constitution and help people assert the right to confront their accusers. If the financial burden on the State is too great, the State must become more efficient in its procedures rather than denying constitutional rights.
The most perverse part of Minnesota’s argument in Melendez-Diaz is that for all of the drug cases in the hopper, we were letting sex offenses and violent crimes DNA testing fall behind. In its 2008 report, the MN Bureau of Criminal Apprehension set a “goal” of a less than 30-day turnaround for drug tests, while DNA testing averaged on 86 days according to the same report. The priorities hadn’t improved in 2014; in its last report in 2012, the BCA reported an average turnaround of 54 days for drug testing. The turnaround for a DNA test was three to six months in sex assault cases.
I strongly hope the Commissioner of Public Safety put sex assault cases ahead of drug tests within the BCA, and reallocate the budget away from the war on drugs to put emphasis on violent crime and upholding the right to a fair trial.
The Necessity Defense
Beyond being allowed a right to a fair trial through the 6th Amendment’s Confrontation clause, the ability to talk about evidence gives Minnesotans a voice in court. What is obvious in Minnesota’s the new medical cannabis law is that there are tens of thousands of patients and caregivers left behind, who will not be protected from the power of the government punishing them for healing their loved ones. Had I been the Attorney General, I would have inserted myself into the discussion and warned legislators that the last-minute changes to the comprehensive medical cannabis program would create ineffective legislation. Patients should have a chance to at least tell the jury they were using cannabis to treat an ailment or disease – right now this ‘medical necessity’ defense is not allowed.
The medical necessity defense is disfavored in Minnesota but I hope to be an advocate for all patients and use the office to hold the government and insurance companies in check as a matter of course.
Persecuting a Victim of Domestic Assault
The medical bill was not the only place where serious work needs to be done in allowing a necessity defense. The legislature overcame this but not before the events of Axleberg v. Commissioner of Public Safety unfolded. Jennifer Axleberg was being brutally beaten by her drunken husband, and her only escape was to drive away from him. She fled a few miles to a nearby establishment and the police were called. When the police arrived, they not only arrested her husband for domestic abuse, but arrested Ms. Axleberg for driving while intoxicated. Although criminal charges against her were dismissed, the Commissioner of Public Safety and the current Attorney General’s office drug her through the court system in an “implied consent” proceeding wherein the state violates due process by masquerading a criminal sanction as a civil proceeding.
The Commissioner moved to revoke her driver’s license in the implied consent proceeding, and Ms. Axelberg merely attempted to argue that she should be allowed to introduce the necessity of her actions as an affirmative defense in proving her innocence. Lori Swanson, our current Attorney General, did not allow this, and argued all the way to the Minnesota Supreme court that Ms. Axelberg should be effectively gagged because necessity defenses are not available in ‘civil’ proceedings – only criminal trials (except cannabis possession, of course.)
This case should have been left alone at the very least or that office should have argued a necessity defense is ALWAYS allowed. A victim should be allowed to voice necessity as evidence in consideration of their culpability. WE SHOULD NOT FORCE A VICTIM TO CHOOSE BETWEEN CONTINUED ASSAULT OR LOSING THEIR DRIVING PRIVILEGES. If you were drunk and someone pointed a gun at your head and told you to drive, should you have your license revoked? The answer is absolutely not and a fact finder should be able to hear this evidence. The same should apply to domestic abuse. If you are penalized for a crime, should you have your right to be innocent until proven guilty where the government has the burden of beyond a reasonable doubt taken away? The answer is, again, absolutely not.
The government’s quick and irrational moves to protect us from ourselves, deny patients relief, penalize citizens by taking away their right to confront their accusers, and denying a fair trial are all things that can be reversed. As your attorney, I like to think of myself as fighting for the recognition of human dignity. I will continue to wake up every morning, remind myself to be grateful, compassionate, mindful, and determined in the fight for justice, and in doing so I will fight for myself as well as you.