Soren Paul Petrek
About the writer: Soren Petrek is a practicing criminal trial attorney, admitted to the Minnesota Bar in 1991. Soren’s novel, Cold Lonely Courage won Fade In Magazine’s 2009 Award for Fiction. Fade In was voted the nation’s favourite movie magazine by the Washington Post and the L.A. Times in 2011 and 2012. Soren is represented by Tiziana Marzano international literary agent.
As a criminal defense attorney, I appeal cases on behalf of defendants who were represented by alternate counsel at trial. On appeal, one is limited to the trial record, the law and the actions and decisions of the prosecution and defense counsel. Questions regarding jury’s decision based upon the evidence presented are questions of fact and rarely disturbed by reviewing courts. Questions regarding law depend upon the decisions of the trial court and the status of the law in the jurisdiction.
When a law is vague or confusing to the detriment of the defendant, their right to a fair trial can be fatally impacted. Jury instructions or statements of the law given to the jury by the trial court are prime examples.
I have a case on appeal to the Minnesota Supreme court involving a minority, immigrant defendant. He was convicted of soliciting a minor prostitute for sex using electronic means. Law enforcement set up a sting operation and entrapped him into committing the various elements of the offense via text message. A jury convicted him, his appeal to the Minnesota court of appeals was denied and now the Minnesota supreme Court must decide if the jury instructions promulgated by the trial court were vague or otherwise legally deficient.
At least half of the states in the USA require the jury instruction on entrapment to state that: 1. The defendant must prove by a preponderance, more likely than not, that he was induced by the government to commit the offense for which he’s charged. If so, then the government must prove beyond a reasonable doubt, our highest standard, that the defendant was predisposed to commit the crime. These two standards are the opposite ends of the evidentiary spectrum, lowest to highest.
The Minnesota Jury Instruction Guide does not require that the jury instruction on entrapment state the defendant’s burden of proof and the state’s burden of proof separately. Failing to do so is confusing. What standard of proof is the jury to apply to the defendant’s evidence? If you were a juror, without direction by the judge, what would you do? In my opinion, one would apply the only standard that is provided, beyond a reasonable doubt. That would be improper, unfairly burdensome on the defendant and unconstitutional.
Keep in mind that a disproportionate number of defendants are minorities and do not have the resources to afford private counsel and have to rely upon court appointed counsel with massive caseloads and inadequate resources when compared to the prosecutions juggernaut power, influence, and money.
Without leveling the playing field, there is no equity nor right to a fair trial. At least, the trial court judge’s instructions to the finder of fact, the jurors, should be free of confusing, misleading, missing, and inaccurate language. Failing to safeguard a defendant’s rights leads to disastrous verdicts and in my client’s case easily remedied.
