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1. What are your expectations of attorneys (both defense and state) at arraignment?
In misdemeanor cases, arraignment occurs at the first appearance. Before arraignment, I expect the lawyers to read the police reports and engage in some discussions, either about resolution of the case or about discovery. I may ask the attorneys if they have done this; and if not, require them to do so. The lawyers should be able to tell me something about what needs to be done (e.g., investigation, legal research) before the pretrial conference. If the defendant is in custody, the lawyers must be prepared to argue bail.
In gross misdemeanor and felony cases, arraignment occurs after there has been a probable cause finding or after probable cause is waived. This should occur within 28 days after the first appearance. By this time, I expect discovery to be complete (absent some scientific testing) and I expect the state to have made an offer to settle which the defense lawyer has discussed with the defendant. The lawyers should be prepared to tell me the factual and legal issues involved in the case and what time limits they want in a scheduling order.
2. What do you see as the bench’s role in settlement at the pretrial stage?
I take an active role in settlement discussions, absent objection from either party. I appreciate lawyers who are willing to summarize their positions and give me a sense of what they need to settle a case. I will try to make helpful suggestions. If a defense lawyer asks me what sentence I would impose upon a plea of guilty, I will answer that question if I can. I will tell the defendant that I am making an assessment of the case and that my assessment is not an effort to persuade the defendant to waive any procedural rights. See State v. Merritt, 2007 WL 1120534 (Minn.App.) (unpublished), review denied (Minn. June 7, 2007).
3. If so, what limitations do you place on ex parte contacts with your staff?
I allow ex parte communications with my staff for scheduling or other administrative purposes.
4. When a matter is assigned to you for trial, do you attempt to facilitate settlement before beginning trial?
I will ask the lawyers if there is anything I can do to facilitate settlement.
5. When in trial, what hours do you normally use for the trial itself (including breaks and lunch recesses)?
In the morning, I will start at 9:15 am, break at approximately 10:30 am for 20 minutes, and break for lunch at 12:15 pm. I will resume at 2 pm, break at approximately 3:15 pm for 20 minutes, and break for the day no later than 4:30 pm. I schedule miscellaneous appearances on other cases at 8:30 am and 1:30 pm.
6. What policies do you have concerning weapons, firearms and ammunition exhibits in the courtroom?
I follow the January 1, 2004, procedures recommended by the Minnesota State Court System for the handling of potentially hazardous exhibits. See http://www.mncourts.gov/default.aspx. (search “hazardous exhibits”). I prefer that firearms be locked in a windowed box.
7. What policies do you have concerning drugs and other sensitive exhibits in the courtroom?
See above.
8. Do you have any other specific policies concerning exhibits?
After the exhibits are introduced, they should be given to my clerk, absent an agreement to the contrary.
9. When do you discuss proposed jury instructions with attorneys?
Generally, I will prepare a first draft of the instructions early in the trial and give it to the lawyers. Typically, I discuss the instructions with the lawyers after the parties have rested. I will do so earlier upon request by either lawyer or at my own initiative if I see a special problem.
10. What are your policies concerning jury sequestration?
If a case is not attracting publicity, I will not require the jurors to be sequestered during deliberations unless a party requests sequestration, in which case I must sequester the jury. See M.R.Cr.P. 26.03, subd. 5(1). If the case is attracting publicity, I may order sequestration even without a request from a party.
11. Do you have any specific policies or practices concerning pre-sentence investigations or sentencing?
Lawyers should be aware of a recent procedural change in felony cases. Presentence reports will be available to the lawyers 3 or more business days before the sentencing date. The probation officer who wrote the report is not required to attend the sentencing hearing unless a lawyer or the court requests the probation officer to attend.
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Mark Wernick
Originally published in the February 2003 issue.
Author: Richard Kyle
Mark Wernick is Gov. Jesse Ventura’s final appointment to the Hennepin County District Court. On his first day on the job, Judge Wernick was assigned a murder case scheduled for trial in March. During his third week "shadowing" fellow judges in various courts, he took over the Brookdale court calendar for a day when the regularly scheduled judge called in sick. After less than a month, he was assigned his own calendar. Yes, Hennepin County’s newest judge has hit the ground running, which should come as no surprise given the breadth of his prior legal experience.
Judge Wernick grew up in Minneapolis, the youngest of three boys. His parents were successful businesspeople who instilled in him the values of honesty, integrity, respect for others, and hard work. He graduated from St. Louis Park High School in 1968 and received his undergraduate degree at the University of Minnesota in 1972. It was not until law school, however, that Judge Wernick really found his calling. He received his law degree from Drake University in 1975, graduating Order of the Coif. At Drake he also received American Jurisprudence Awards in evidence, real property, contracts, labor law and landlord-tenant law.
After law school, Judge Wernick returned to Minnesota to take a job as an assistant Hennepin County public defender. During his first year in the public defender’s office, he tried over 50 misdemeanor cases to the court (the pre-1975 Minnesota Rules of Criminal Procedure prescribed court, as opposed to jury, trials for all misdemeanor offenses). In 1977, he left to open his own criminal defense practice, which, except for a brief partnership with attorney Bill Mauzy, he maintained until his recent appointment to the bench.
As a sole practitioner, Judge Wernick’s practice was devoted almost exclusively to criminal defense work. He handled a wide variety of cases, ultimately developing an expertise in white-collar criminal defense. He tried several complex federal white-collar cases, including the Endotronics securities fraud trial, which lasted 93 trial days, and the Long Cadillac money-laundering trial, which lasted 25 trial days. Since the early 1980s, he has also accepted appointments from the Federal Defender’s Office to handle significant drug cases and from the Hennepin County Public Defender’s Office to represent indigent defendants in murder cases.
One of the highlights of his legal career was arguing before the U. S. Supreme Court in Minnesota v. Murphy, 465 U.S. 420 (1984). The case originated in Hennepin County and established the scope of a probation officer’s duty to give Miranda warnings to a probationer who is suspected of committing a new crime. Judge Wernick represented a young man accused of the rape and murder of his girlfriend. The prosecutor was Robert Lynn (current Hennepin District Court judge) and the trial judge was Jonathan Lebedoff (current chief federal magistrate judge for the District of Minnesota). In attendance at oral argument before the Supreme Court were Wernick’s family, Judge Lebedoff, and then-Hennepin County Attorney Tom Johnson. "I was privileged to witness the arguments before the U.S. Supreme Court," recalls Judge Lebedoff. "Mark’s performance was typical of Mark. He has an extraordinary legal mind. He is also a wonderful person. He will make a great judge." The Murphy case is still cited to in most criminal procedure treatises and law review articles pertaining to confessions.
Despite Judge Wernick’s significant experience in the area of criminal defense, he is no stranger to civil cases. On numerous occasions he worked with civil lawyers on parallel civil and criminal proceedings in the areas of securities and health care fraud. From these contacts with the civil bar Judge Wernick gained an appreciation for the subtleties of complicated civil litigation, and he looks forward to getting a civil block of cases in the future.
In addition to his courtroom experience, Judge Wernick brings a great deal of pro bono, professional association, and community service experience to his new position on the district court bench. From 1995 to the time of his appointment, he was a board member, and for two of those years board president, at the Legal Rights Center, a non-profit corporation that provides criminal defense services to minority communities in Hennepin County. In 1996 and 1997, he chaired the Criminal Law Section of the Minnesota State Bar Association, and in 2000, he served as president of the Minnesota Association of Criminal Defense Lawyers.
Since 1985, Judge Wernick has served on the board of the Sabathani Community Center. Sabathani is a non-profit corporation in South Minneapolis that provides social service and development programs for children, adults, and seniors. Sabathani also owns the former Bryant Junior High School in South Minneapolis and is landlord for over 40 nonprofit organizations that office there. Serving on the Sabathani board has had a great impact on Judge Wernick’s thinking about criminal justice issues. "During my 17 years at Sabathani, I have come to better understand race and social justice issues. I think that the neighborhoods and families served by Sabathani expect judges to hold offenders accountable, but with a recognition that there are social conditions that contribute to criminal behavior."
When asked what inspired him to leave private practice to become a district court judge, Wernick explained: "I wanted a change from being an advocate to being a neutral. As a judge, I can remain in the world of litigation, which I love, but make my decisions with more of a focus on serving justice." He has enjoyed his first few months on the bench, especially handling his own criminal calendar. It definitely feels different, however, being on the other side of the bench. The biggest challenge has been "making so many quick decisions on a daily basis. I now have a greater appreciation for the heavy caseload in Hennepin County."
Judge Wernick emphasizes that prosecutors and criminal defense lawyers appearing
before him can expect fair and considered treatment of their cases. "I don’t subscribe to the theory that my criminal defense background will be a predictor on how I will rule in any given case. More important than experience in the criminal defense bar is my personal makeup and background." Former colleagues agree. Jerod Peterson, a criminal defense attorney who officed with Judge Wernick for many years, had this to say about his former colleague: "He will be respectful of litigants and yet demand the same high level of competence from the advocates who appear before him that he demanded of himself when he was practicing. At the same time, he will show compassion for people whose limited circumstances have led them to involvement with the court system. I am greatly pleased that he has chosen to leave his highly successful private practice to make his talents available to the wider public."
In his spare time, Judge Wernick can be found most mornings walking around Cedar Lake with his wife, Nancy Entwistle, a graphic designer at the Minneapolis Star Tribune. He also enjoys attending the theatre, movies, and dining with family and friends. This past fall he began attending yoga classes on Saturday mornings. "I’m 52 now and not as flexible as I used to be."
Judge Wernick brings a wide range of experience to the bench: skilled courtroom advocacy; leadership in professional associations, and service in the community. He is a man who loves the law and possesses compassion for those whom it affects. Mark Wernick will be an outstanding judge for many years to come.
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