• October 24, 2016

handgun-231699_1280Danna Back dated someone on and off for several years who, in judicial opinons, goes by the name of “D.H.”  Back and D.H.’s was a rocky relationship and in 2006 Back moved out of the house that they co-owned and shared.

Then Ms. Back started dating Nick Super who appears to have toxically combined anger management issues with a love of guns.

Super was not fond of D.H. and Back knew that. She knew that Super had threatened D.H. with a gun several times, Super had fired shots at D.H.’s garage, and Back knew that Super was “known to pull his gun out on anybody.”

For reasons best known by herself, at around 3:00 a.m. on January 1, 2007, Back decided to go to D.H.’s house. Guess who she called to give her a ride to D.H.’s house? And guess what happened then?

After Back called Super for a lift. Super gave Back a lift. Soon after, in the earliest hours of 2007, Super shot and killed D.H.

Back was criminally prosecuted for her role in the killing of D.H. Prosecutors charged her with second degree manslaughter. That is when a person’s “culpable negligence…creates an unreasonable risk, and consciously takes chances of causing death or great bodily harm to another.”

A jury found Back guilty. The Minnesota Court of Appeals affirmed the jury verdict. In 2009, however, the Minnesota Supreme Court threw out the conviction, holding that Back owed no duty to protect D.H. and no duty to hold back or restrain Super.

All told, Back spent 32 months in prison as this ultimately-vacated prosecution wound its way up and down our court system.

For her years of incarceration, Back now seeks relief under a Minnesota statute for imprisoned people whose convictions were reversed “on grounds consistent with innocence.”

The district court ruled that Ms. Back was not “exonerated” under the terms of the statute and rejected her claim for “exoneration remedies.” The Minnesota Court of Appeals reversed the district court’s opinion. The Minnesota Supreme Court recently accepted the state’s petition for further review. (Here is Back’s unsuccessful opposition to the state’s petition to the Minnesota Supreme Court.)

This is one of those cases where many of us may have strong opinions on “the right answer” before parsing the referenced statutes and their constitutional underpinnings.  We will not all agree on what “the right answer” is, but I expect many of us will feel strongly about it.

What about judges? Do they have similar gut reactions? Do judges first “feel” their decisions and then think through the legal analysis to reach the decisions that they already arrived at intuitively? Such a process would be widely condemned as “outcome-oriented” legal analysis, where one does not rely on the law to inform the decision-making process but rather uses it to rationalize, justify, or validate the desired outcome or result.

Judges are human beings with hard jobs. Some are no doubt better than others at disregarding outcomes in particular cases in favor of strict legal analysis, no matter how unjust the final result may feel or, in high profile cases, how unpopular it may make the judge. Such objectivity is the name of the judging game and much to be desired.  On the other hand, it cannot be a fluke that our highest courts so often split predictably and ideologically.

The subject of judicial bias, explicit or implicit, is beyond the scope of this post, of course, but judges cannot help but bring some preexisting inclinations and attitudes to the statutory page and such extra-judicial mindsets have the potential to affect outcomes in emotionally-charged cases like Back’s.  Bottom line: a judge is not a jury and should never engage in the nullification of law.



Leave a Reply

Your email address will not be published. Required fields are marked *