consultants are sandburs

Thursday, March 28, 2013

Tammy Sakry reports, Elvig trial postponed to mid-April.

This link. Elvig's firm, E Street Makers, a custom cabinet and wood furnishings and trim business, hit the shoals along with many homeowners and other construction trade businesses in the housing slump. Charges are that money was not placed into employee benefit accounts as the law requires when multiple creditors also had claims and the effort was to stay operational in hopes the slump would be short-term. I do not know if strict liability applies or a prosecutor has to prove knowledge of and a wrongful intent to not comply with benefit account mandates. Multiple counts exist because of a prosecutorial decision to amend the complaint to individualize counts by employee and specific instances rather than to proceed with earlier filed blanket counts. Wholly innocent unless proven guilty, Elvig's Ward 1 council seat could be impacted if there is conviction on a felony count. Having a business tank, and screwing up on allocating cash on the way to a business viable for fourteen years failing is something I would not judge too harshly, especially without hearing all presented fects, but it is for a jury to decide and the case will be heard in an adjacent county to lessen the likelihood of potential jurors knowing parties or counsel or witnesses, and hence being disqualified from the juror pool.

I apparently erred. Sakry - ABC Newspapers posted an updated report.

Sakry describes the latest amended complaint and the prosecutorial thinking underlying the change. Moreover, with the Anoka County Attorney's Office doing an initial hand-off to Isanti County, I misunderstood that the trial site stayed unchanged, and trial remains scheduled in Anoka County. Sakry reported in the latest post:

Elvig’s criminal trial was scheduled to begin in Anoka County District Court March 25 with Judge Spencer J. Sokolowski preceding, but was rescheduled for April 15 after Crumb’s office received additional evidence.

According to [prosecutor Susan] Crumb, her office was given the [new] evidence the afternoon of March 22 while preparing a witness for testimony [...]

This is the third continuance for the trial.

[...] The U.S. Department of Labor Employee Benefits and Security (EBSA) investigated Elvig for allegedly misappropriating employee contributions to the firm’s 401(k) profit sharing plan, group health care and dental plans and 401(k) loan repayments.

The EBSA investigators allege Elvig kept the contributions in E-Street’s general operating account and used it to pay business expenses, such as payroll, instead of applying it to the three employee plans for up to 15 employees.

[Emphasis added.] A juror pool will be available where, hopefully, a panel can be chosen of those unfamiliar with reporting of the case, who will be free of any bias that way, and not knowing Elvig or other potential witnesses. It seems that narrowing the pool that way, and calling jurors only from voter rolls, promises to exclude a number of possible jurors (voters presumably being familiar with office holders and political status). Those constraints might lead to an unusual jury composition.

Finally, it is unclear from reporting that it will be a jury trial and not a bench trial. However, trials of cases charging criminal liability most frequently are jury trials. Juries traditionally evolved so that one's peers, and not officials of the state, might, as a safeguard of charged individuals, pass judgement - a step dating, if my recollection serves me, at least indirectly to the Magna Carta where crown powers were constrained by will of the noblemen and consent of the crown; with the changes in government reduced to a key writing. That precept, having a writing protective of rights against government power, of course is echoed in our Bill of Rights, and our Constitution defining a balance of powers between federal and state exercise and control.

Sakry reported more in the new post beyond what has been quoted; again, this link.

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