That obvious point was underscored in a recent Minnesota decision that addressed the issue of venue when a defendant is charged with violating a protection order by sending an e-mail to a former girlfriend.
The defendant in the case was Douglas Pierce, the father of Wenona Kuhrman’s two children.
In February 2008, Kuhrman had a protection order entered in Hennepin County after Pierce assaulted her. The order prohibited Pierce from contacting Kuhrman in person, by telephone, by letter, by third party, or by any electronic means, including e-mail.
Pierce promptly violated the order and was sent to jail. On March 5, 2009, after getting out of jail, Pierce allegedly violated the protection order again by sending an e-mail to Kuhrman which read, “Why fred mike 3925 1 st duplex nice chat lines i thought it was me & u it was me u and every one i wa u can send me back i do not care i got nothing with out u.”
Kuhrman complained to police and Pierce was charged in Hennepin County with violating the Minnesota Domestic Abuse Act.
The case seemed like a slam dunk for prosecutors. After all, the alleged e-mail violated the clear terms of Kuhrman’s protection order. The Hennepin County District Court certainly saw it that way and quickly convicted him after a bench trial.
However, there was one big problem with the state’s evidence: nothing clearly established the location from which Pierce sent the e-mail or the location at which Kuhrman received the e-mail.
Everyone including the trial judge seemed to assume that Kuhrman received Pierce’s e-mail at her home computer in Hennepin County, but of course assumptions just don’t suffice when the state has the burden of establishing an essential element like venue.
Certainly, the prosecutor in the case could have easily eliminated any uncertainty by simply asking Kuhrman at trial where she was when she received the e-mail, but he didn’t.
The Minnesota Court of Appeals saw the fatal flaw in the state’s case and earlier this month overturned Pierce’s conviction.
The goof by the prosecutor in Pierce’s case did serve one purpose, however, because his appeal required the court to clarify where venue lies when a defendant violates a protection order by sending an e-mail.
The court of appeals held that “[w]hen the state prosecutes a person who has allegedly violated an order for protection under the Domestic Abuse Act by sending a prohibited message by electronic mail, venue is proper in the county from which the sender mailed the message or the county in which the recipient opened it.” (Minnesota v. Pierce)
This conclusion isn’t all that earth-shattering, but it is certainly useful in this brave new world of electronic communications.
And the prosecutor’s shortcomings in Pierce’s case serves as a good reminder to all attorneys of the need to dot the i’s and cross the t’s.
– Pat Murphy