Category: Criminal Defense

You Have A Constitutional Right To A Fair Trial, Not A Separate Trial

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A criminal defendant has a right to a trial, of course, but not to separate trials on separate charges. That principle was recently reinforced by the Nebraska Supreme Court in State v. Knutson.

In this case, Mr. Knutson was charged with was accused of inappropriate and abusive behavior against four different children. For one child, Mr. Knutson was charged with child abuse and using an electronic communications device to entice a child. For two of the children, Mr. Knutson was charged with third degree sexual assault of a child (against each child). And for the fourth child, Mr. Knutson was charged with child abuse.

The State asked for joinder of all the cases, meaning that all of the charges against Mr. Knutson would be tried together to the same jury. Mr. Knutson opposed the joinder, saying to try all those cases at the same time would unfairly prejudice him. The State’s request for joinder was granted, and Mr. Knutson was convicted of all charges except for the ones against the first child. Mr. Knutson appealed his conviction, in part by claiming that the joinder violated his right to a fair trial.

The Nebraska Supreme Court began by observing that a defendant does not have a constitutional right to separate trials for separate charges. Under Nebraska law, charges may be joined if they are “are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.”  The law further provides that “[i]f it appears that a defendant or the state would be prejudiced by a joinder of offenses . . . for trial together, the court may order an election for separate trials of counts, indictments, informations, or complaints, grant a severance of defendants, or provide whatever other relief justice requires.”

In other words, to determine if charges should be joined is a two-step process. First, a court looks to see if the charges are “of the same or similar character or based on the same act.” If not, the charges can be joined. If they are, then the charges can be joined unless doing so would prejudice a defendant so that the defendant could not get a fair trial.

In this case, the Supreme Court found that the charges should be properly joined. Although the charges were based on different statute, the Court found that because the charges were all sexual in nature and because the victims were all roughly the same age, they were similar enough to be joined.

The Court then determined that Mr. Knutson’s right to a fair trial was not prejudiced by the joinder. The jury in this case was specifically instructed to consider the evidence for each charge separately, and Mr. Knutson made no specific additional showing of prejudice. The fact that the jury did, in fact, acquit (meaning find not guilty) Knutson of some charges went a long way for the Court in determining that there was no prejudice in the joinder.

What Do a Techinical Criminal Case and an Obamacare Challenge Have In Common?

If you need to talk with a criminal defense lawyer, contact Runge Law Office at or at (402) 390-9577 to schedule a free initial consultation. Visit us at for more information.

What a legislature means isn’t always as easy as what it says. While that question has a much broader impact nationally, the Nebraska Supreme Court reiterated that principle in a criminal law case about probation and when a conviction can be set aside.

In State v. Kudlacz, an individual was placed on probation for a conviction for issuing a bad check, a misdemeanor. Part of his probation was that Mr. Kudlacz had to perform certain conditions, such as looking for employment and pay restitution. If he didn’t meet those conditions, his probation order required him to serve 90 days in the county jail on weekends.

Mr. Kudlacz initially failed some of his conditions, and ended up having to serve some of his jail time pursuant to his probation. But Mr. Kudlacz ultimately did successfully complete all of the terms of his probation. As a result, he asked the court for a hearing to set aside his conviction based on a Nebraska state law that allows a misdemeanor conviction to be set aside if all probation terms are successfully completed.

The State objected, saying that because Mr. Kudlacz spent some time in jail, he couldn’t have his conviction set aside. The State relied on language in a different case, McCray v. Nebraska State Patrol, which said that the statute in question “empowers a court to set aside certain criminal convictions in which the sentence does not include incarceration.” Because Mr. Kudlacz’s sentence included incarceration, the State argued, his sentence could not be set aside.

But the Supreme Court said that because McCray was about a sex offender and how a conviction that was already set aside affected him, the case wasn’t relevant for Mr. Kudlacz’s purposes. Instead, the Court looked at the language of the statue in question and the intent of the Legislature in passing the statute.

The full language of the statue in question reads as follows:

Whenever any person is convicted of a misdemeanor or felony and is placed on probation by the court or is sentenced to a fine only, he or she may, after satisfactory fulfillment of the conditions of probation for the entire period or after discharge from probation prior to the termination of the period of probation and after payment of any fine, petition the sentencing court to set aside the conviction.

To interpret a statute, a Court must first look to the language of the statute to see if there are any ambiguities, giving the language of the statute its plain and ordinary meaning. And, the Court must “determine and give effect to the purpose and intent of the Legislature as ascertained from the entire language of the statute considered in its plain, ordinary, and popular sense”

The Court found that the statute simply didn’t address that question of how to handle a jail sentence as a part of a probation order. The statute simply says that if a person successfully completes probation for a misdemeanor, that person can ask the court to set aside the conviction. If the Legislature had wanted to make it so people who spend time in jail as a part of probation could not get a sentence set aside, it could have. But because it did not, the Court found that the language of the statute allowed Mr. Kudlacz to request a hearing and ask for his conviction to be set aside.

This may sound like a very technical case involving the nuances of criminal law. But if you’ve heard about the recent challenge to the Affordable Care Act (otherwise known as “Obamacare”) from federal district courts, the issue in those cases is exactly the same as what the Nebraska Supreme Court wrestled with in Kudlacz. Specifically, is a particular provision of the ACA ambiguous on its face, given the purpose and intent of Congress in passing the ACA.

So sometimes even the most mundane and technical cases can involve principles used in decisions that could affect millions of people across the country.

“Yes” and “No” Mean “Yes” for Warrantless Home Searches


The United States Supreme Court has limited the ability of individuals to prevent law enforcement officers from searching their homes without a search warrant. In the new decision, Fernandez v. California, Justice Samuel Alito writing for a 6-3 majority said that police may search a residence with the consent of one tenant even over the objection of another tenant, under certain circumstances.

In this case, police arrived at Fernandez’s home during the investigation of a gang-related robbery, and heard “screaming and fighting” coming from inside the home. Police knocked on the door and asked for permission to enter. Fernandez said no, saying “I know my rights.”

(As Roy Little of SCOTUSBlog brilliantly observed, not well enough, as we will soon see.)

Police saw bruises on his girlfriend and the infant being held by Fernandez’s girlfriend, and arrested Fernandez for suspicion of domestic violence. The police returned an hour later, and were granted permission from the girlfriend to search the residence. Fernandez sought to prevent the State from using the evidence found in that search, claiming it violated his Fourth Amendment right to be free from unreasonable searches and seizures.

Writing the majority opinion, Alito had to address a previous ruling of the Supreme Court in Georgia v. Randolph which held that when more than one property occupant is present, the objection of an occupant that is physically present to a search prohibits police from making the search without a warrant, even if the other occupant consents to the search.

In finding that Randolph did not apply, Alito first made the obvious observation that Fernandez was no longer present, and the fact that the party objecting to the search was physically present was the critical element in Randolph. Alito went on to address language in Randolph which would suggest police could not remove an individual that objected to a search and then proceed with the search.

Alito said that language in Randolph meant that police removal of an objecting occupant would prevent a warrantless search only if the police removal was not “objectively reasonable.” In this case, police had probable cause to arrest Fernandez for domestic violence as well as for the original robbery. Because police had that probable cause to arrest Fernandez, his absence from the residence was “objectively reasonable” and therefore the Randolph exception should not apply.

Alito also said that the objections of an individual to the search of a residence do not last past that individual’s presence. It does not matter that the officers in question knew that Fernandez did not want the residence searched. As long as Fernandez wasn’t present, and his removal by the police was “objectively reasonable,” police could search the residence with the permission of another occupant.

Alito’s opinion was joined by Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas, Steven Breyer, and Anthony Kennedy. Scalia filed a concurring opinion reiterating his disagreement with the decision in Randolph and pointing out that he believes it might have been relevant if Fernandez had a property right in the residence, but that the issue was not raised. Thomas filed a concurring opinion reiterating his disagreement with the decision in Randolph.

Justice Ruth Bader Ginsberg wrote the dissenting opinion, which was joined by Justices Elena Kagan and Sonya Sotomayor. Ginsberg argued that permitting police to remove an objecting occupant and then search a residence was an impermissible end run around the Fourth Amendment’s requirement of a search warrant, and needlessly weakens that protection of individual liberties.

Life Without Parole For Juveniles Defined, Rejected By Nebraska Supreme Court


The Nebraska Supreme Court vacated the sentences of three men, Juan Castaneda, Eric Ramirez, and Douglas Ramitch, who were convicted as teenagers to a sentence of life without parole. A district court will now re-sentence all three men, taking additional factors of their youth at the time that could mitigate their sentences.

Underlying the case was a 2012 decision from the United States Supreme Court, Miller v. Alabama (132 S.Ct. 2455), which held that a sentence of life without parole for a crime committed by a juvenile violated the Eighth Amendment to the United States Constitution and its guarantee that citizens will be free from “cruel and unusual punishment.”

It was not immediately clear upon the decision in Miller, however, that the sentences in question would have been impermissible. Under Nebraska law at the time of sentencing, individuals have a right to parole once they served one-half of a minimum sentence. However (at least for Castaneda), the only sentence entered was “life imprisonment.” The Nebraska Supreme Court ruled that, because it is impossible to calculate what half of a “life imprisonment” sentence is, functionally that means the sentence is life without parole, even if that does not expressly appear on the sentence itself.

The State further argued that the Miller ruling should not apply because Castaneda had the possibility of parole in the form of a sentence commutation. Under Nebraska law, the Board of Pardons (specifically, the Governor, the Attorney General, and the Secretary of State) can commute a sentence, which would make the individual eligible for parole.

But the Nebraska Supreme Court said that the mere possibility of a commutation from the Board of Pardons (a function of the executive branch of Nebraska’s government) does not satisfy the requirements of the United States Supreme Court in Miller. Instead, the right of parole for juveniles sentences to life imprison must be “meaningful” and not subject to “executive clemency.”

Castaneda and the other two individuals will be re-sentenced by a district court judge. They may still face life imprisonment, so long as there is a possibility of parole in compliance with Miller and the terms of the new Nebraska Supreme Court decisions.

The full text of the decisions can be found at State v. Castaneda (287 Neb. 289), State v. Mantich (287 Neb. 320), and State v. Ramirez (287 Neb. 356).

If You Want To Remain Silent, You’d Better Speak Up


On June 17, 2013, the Supreme Court decided that merely remaining silent is not enough to exercise his or her Fifth Amendment right to remain silent when being questioned by the police. Unless that person says something to invoke that right, according to the controlling opinion from the Court, then the right is not invoked and prosecutors can use that silence to infer the person’s guilt.

The case, entitled Salinas v. Texas (No. 12-246), involved Genevivo Salinas, who had gone voluntarily to the police to discuss a murder of two men. During the course of those discussions, the officers asked Salinas if the shell casings found at the scene would match his gun. Salinas became nervous, but did not answer the question.

Salinas was later charged with the murders. At his trial, the prosecution used Salinas’ silence when asked about the shell casings to infer his guilt to the jury. Salinas was convicted of the murders, and his appeal ultimately went to the United States Supreme Court.

The Controlling Opinion

Joined by Justices Roberts and Kennedy, Justice Alito wrote the plurality opinion that is the law of the case. Alito wrote that previous law had laid out two areas where silence on its own can invoke a person’s Fifth Amendment right to remain silent. The first is an absolute right for a person not to testify in his or her own case. The second is if the government is somehow forcing the person (outside of the courtroom) to give information against himself or herself, such as if the person is in police custody, is threatened with the loss of governmental benefits, or some other form of leverage to force the person to give information against his or her interests.

“[P]opular misconceptions notwithstanding, the Fifth Amendment guarantees that no one may be ‘compelled in any criminal case to be a witness against himself’; it does not establish an unqualified ‘right to remain silent.’ A witness’ constitutional right to refuse to answer questions depends on his reasons for doing so, and courts need to know those reasons to evaluate the merits of a Fifth Amendment claim,” Alito wrote in the controlling opinion.

The Concurring Opinion

Justice Scalia concurred with Justice Thomas’ opinion that the Alito plurality opinion did not go far enough. Even if Salinas would have invoked his Fifth Amendment rights, Thomas wrote, it wouldn’t matter because “the prosecutor’s comments regarding his precustodial silence did not compel him to give self-incriminating testimony.”

Thomas believes that a prosecutor’s commenting on a defendant’s lack of testimony does not force that defendant to testify, and therefore should be allowed any time a defendant does not take the stand at his or her trial. According to Thomas, preventing a prosecutor from commenting on (and inferring guilt from) a defendant’s choice to remain silent does not have a historical basis, and the Fifth Amendment should not prevent prosecutors from doing so in any case.

The Dissenting Opinion

Justices Ginsberg, Sotomayor, and Kagan joined with Justice Breyer in the dissenting opinion. Breyer wrote that the purpose of the Fifth Amendment was to prevent the government from forcing an individual to be a witness against himself or herself. Permitting prosecutor to comment on an individual’s silence as an inference of guilt, Breyer wrote, presents an impossible choice to an individual and will invariably lead to that individual being compelled to provide an answer—or have the individual’s silence used as an inference of guilt, as with Salinas.

Breyer suggested that the Court, rather than just allow a blanket use of silence as an inference of guilt as Alito wrote, should look at the circumstances of each case to determine if an individual invoked his or her Fifth Amendment right. Breyer is also concerned that Alito’s language requiring an individual to “expressly invoke the privilege against self-incrimination” will become difficult to administer. How much is needed to “expressly invoke” the right? How will that square with the Court’s previous rulings that “no ritualistic formula is necessary in order to invoke the privilege”?

You can see the SCOTUSBlog page on Salinas v. Texas and get more information here.

Welcome to Runge Law Office!

Thank you for taking the time to come visit the official Runge Law Office blog! Here, we will be providing you with important and helpful information about the specific areas of law we focus on, to help you understand your rights and how we can help you find solutions to the problems you face.

We have practiced law in Omaha and eastern Nebraska since 1995. At Runge Law Office, we focus our practice on:

Family Law. This area includes divorce, custody disputes, child support issues, modification of previous orders when circumstances have changed, and enforcement actions that use the power of the Court to follow a previously-entered order.

Criminal Defense. We have experience in tribal, state, and federal courts, defending people accused of both felonies and misdemeanors. If you have been accused of a crime, both your freedom and your future are at stake. You need experienced representation that knows how to find a solution to your problem, either through smart negotiation or in court.

Juvenile Law. If the State has come in and taken your children based on allegations of abuse or neglect, it is critical that you have experienced representation helping you. Once a child has been removed and a juvenile court cause started, by law parents only have a certain amount of time before the State will take actions to permanently take your children away. We have extensive experience in juvenile court, and can help you find a solution to your problem.

Estate Planning. Thinking about death is always unpleasant. But if you don’t have a plan for your property when you die, the State has one for you. If you want to make sure you have control over your property once you die, you need to speak with us. We have experience in listening to your concerns and crafting the right legal framework to ensure that your wishes are honored and your family is protected after your death. We can also help you with living wills and powers of attorney to make sure your wishes are honored and your rights are protected when you are at your most vulnerable.

Native American Law. In Indian Country, the intersection of tribal, state, and federal laws can be very challenging. We have years of experience working in Indian Country, in both tribal courts and state courts, and can help you navigate the legal, jurisdictional, and cultural barriers you may be facing. Patrick has been a public defender in tribal court, and is currently the Chief Judge of the Winnebago Tribal Court. He also teaches Native American Law at the Creighton University School of Law, and has taught and spoken frequently about Native American Law issues such as the Indian Child Welfare Act.

At Runge Law Office, we are here to help find solutions for your legal problems. Please contact us at 402-390-9577 or using the form below to ask questions or schedule a free consultation.