Mandatory sentences not always the case for Minnesota gun crimes

To separate fact from fiction, KARE 11 Investigators analyzed every sentence for every felony gun crime during the past three years.

MINNEAPOLIS - Hennepin County judges have come under fire recently for their sentencing habits. Several top Minneapolis leaders are claiming some judges are soft on gun crimes, allowing dangerous criminals back on the streets when they could be in prison. To separate fact from fiction, KARE 11 Investigators analyzed every sentence for every felony gun crime during the past three years. We found that judges do not hand down mandatory minimum sentences in the majority of gun crime cases.

'Mandatory' Sentences

Monica Johnson's story

Under Minnesota law there is a mandatory minimum amount of time criminals who use a gun should be sentenced to serve in prison. But our KARE 11 investigation found the amount of time they are sentenced to prison, if they get prison time at all, varies greatly from court to court and judge to judge.

It's a lesson in law Monica Johnson learned the hard way. Her ex-husband, Joe Louis Johnson, became jealous when she began dating other men in the wake of their breakup. "I try not to think about it," said Monica as tears rolled down her face. A Woodbury police report from 2012 details a brutally violent attack against Monica by her ex. According to the report, Joe Louis Johnson "grabbed her by the throat" told Monica "you're gonna dieā€¦just let go and die" as he "choked her," beat her with a "baseball bat," and tried to "suffocate" her with a "plastic garbage bag."

"I was just trying to stay alive," Monica recalls. A review of the case shows Monica could have been protected. Under Minnesota law Joe Johnson deserved to be behind bars before the domestic assault ever happened. Joe Johnson was a convicted felon, he'd done time in a Florida prison in 2008 for attacking another woman. As a felon he was not allowed to possess a firearm. But in 2011, he was caught in Hennepin County with a handgun. Minnesota's mandatory minimum sentence for a felon in possession is five years. 4th District Judge Daniel Moreno sentenced Johnson to one year in the workhouse and probation. Two years later, the attack on Monica happened.

The Johnson story is not an isolated case of a judge bypassing the mandatory minimum sentencing, says Hennepin County Attorney Mike Freeman. "I'm not naming particular judges here today, and I'm not going to comment on individual judges, but there is a climate here in which they believe that it is okay to depart far too often on felons in possession," said Freeman.

Our analysis of sentencing data provided by the Minnesota Sentencing Guidelines Commission reveals in gun cases across all of Minnesota, judges give less than the mandatory minimum sentence 53% of the time. In Hennepin County, that jumps to 56%. Judge Richard Scherer, Judge Susan Robiner, Judge Mark Wernick, Judge Joseph Klein and Judge Daniel Moreno downward depart from mandatory sentencing in felony gun cases in more than two thirds of the cases they oversee. "And that's too much" said Hennepin County Attorney Mike Freeman.

'Mandatory' Sentences

A bit of a misnomer

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Freeman's office routinely butts heads with district judges when it comes to sentencing in gun cases, especially when the conviction is for a felon being in possession of a handgun. On average in Minnesota, prosecutor's object to a judge's reduced sentence in gun cases only 12% of the time. But in Hennepin County, it happens in nearly 30% of gun cases. "I think the numbers speak for themselves. There's a different climate on this bench than there is elsewhere in this state," said Freeman.

But 4th District Chief Judge Peter Cahill disagrees. He says judges cannot be a rubber stamp for police and prosecutors, and the most important thing for them is to be fair and impartial. "We can't worry about stats," said Cahill. When KARE 11 Investigative reporter A.J. Lagoe asked Chief Judge Cahill if mandatory did not mean mandatory in Minnesota, Cahill responded, "not really." He says calling the state's mandatory minimum sentences mandatory is a "bit of a misnomer."

Cahill said the issue is very complex, and added "If you read the statute specifically, the legislature gave the court the ability to depart from the gun sentencing scheme." There is a section in Minnesota's minimum sentencing law that allows judges to disregard mandatory sentencing in gun cases if there are "substantial and compelling" reasons to do so.

Are there truly "substantial and compelling reasons" to hand down a lesser sentence in the majority of gun cases? It depends on who you ask. In the wake of a series of deadly summer shootings, Minneapolis's Police Chief Janee Harteau said, "we are arresting people who should have been kept in jail." Harteau and City Council President Barb Johnson began publically calling out Hennepin County judges for being soft on gun crimes and allowing dangerous criminals back on the street unnecessarily. "I am calling to them publicly this time to take gun crime seriously," said Johnson. "The penalties are there, impose them! When someone is arrested with a gun they need to do time!"

'Mandatory' Sentences

Gun play in the park

Sentencing in one case in particular sparked anger and disbelief by many in local government. The case of August Fleming. On Oct. 3, 2012, a fight broke out on a crowded basketball court at Folwell Park in North Minneapolis. One man pulled a knife and then Fleming pulled a gun out of a backpack and opened fire, pulling the trigger at least six times. Children playing soccer on a nearby field went ducking for cover. Amazingly, no one was hit. Fleming had a prior record. As a felon in possession of a handgun he was facing a mandatory minimum of five years. He was also charged with second-degree assault which carried a sentence of three years in prison.

"This is bad stuff," Freeman said while pounding his fist on a conference room table. "He shot up a park where little kids were playing!" Instead of being sentenced to the mandatory minimum time he was facing, Fleming was sentenced by Judge William Koch to one year in the workhouse, eight years' probation, and not a single day in prison.

In his sentencing memorandum, Koch reasoned that Fleming was not "the initial aggressor," cooperated with the investigation, "accepted responsibility," and "displayed remorse for his actions."

It's a ruling that still outrages council president Johnson, who represents the district where the shooting occurred. "The thought that someone could come on to the basketball court shoot a gun off and then serve time in the workhouse when they're a convicted felon. That's abhorrent to me," Johnson said.

While on probation, Fleming was arrested again, in a police drug raid at a house right across the street from Folwell Park. "He got caught with a lot of dope and guns again," said Freeman. Fleming was sent to prison for violating his probation.

Mandatory Mandatory Sentences

Minnesota sentencing statutes have a section referred to by the legal community as "mandatory mandatory sentences." If you're convicted a second time for a gun offense, judges are given no wiggle room. The law requires them to hand down at least the mandatory minimum. "Those are what we call hard 'mandatories' where there's no leeway for the court and we do impose those," said Chief Judge Cahill.

But KARE 11's investigation found that's not always the case. Take for example the rap sheet of Khayree Copeland. Copeland was busted in 2008 as a juvenile for possession of a short barreled shotgun. In 2011, now an adult, he was caught again with a gun. As a felon in possession, the mandatory minimum sentence he was facing was five years in prison. However Judge Robiner sentenced him to probation. Later that same year, Copeland was arrested again while carrying a handgun. His second offense as an adult, this time the law requires he get the "mandatory- mandatory" five years. But court records show Judge Richard Scherer gave him only four years in prison. "Members of my office protested both times and rightly so," said Freeman.

Roberta Englund, the feisty Executive Director of the Folwell Neighborhood Association also runs the 4th District Court Watch. She keeps detailed records of the repeat offenders she says hold the city's north side hostage to guns, drugs and general mayhem. "I get very annoyed by these people," she said. Her annoyance has been known to extend to the judicial bench. When asked her opinion of sentencing in gun cases Englund said, "It is justice delivered sometimes with logic and sometimes with whim." Englund's court watch group is in the process of launching a website to keep the community informed of cases that impact quality of life on the north side, and also to shine light on judges' sentencing habits. "It's not easy to explain to residents why certain criminal behavior is not prosecuted and sentenced to the fullest extent of the law," said Englund.

Monica Johnson, says the attack by her ex-husband still haunts her. "He told me he was going to kill me and leave me underneath my bed and that's where my parents were going to find me. I try not to think about it because it's over, but it's not. The memories in my head are still there and I can still hear him saying those things to me."

Joe Johnson is now in prison for the attack on Monica.

NOTE: While Hennepin judges see far and away more gun crime cases than any other jurisdiction, Carlton County judges are the most likely to cut a defendant a break. Judges there gave less than the mandatory minimum 100% of the time in the past three years.

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