Colorado Criminal Lawyer Blog

The airwaves are full of television shows demonstrating the vital relationship between science and truth in the criminal justice system. CSI, NCIS, Etc...

The following story demonsrates the life and death relationhip between achieving truth through science and correcting flaws in an imperfect system. But the careful rules of foresnic analysis MUST be followed..

Firearms Analysis in Murder Conviction Rejected

On the third day of a retrial of an October 2008 Virginia murder conviction, forensics supervisors testified that the forensic firearms analysis in the case was incomplete, did not follow procedure, missed the presence of telltale gunpowder particles, and used inappropriate fabric to judge the firing distance.

On the third day of a retrial of an October 2008 Virginia murder conviction, forensics supervisors testified that the forensic firearms analysis in the case was incomplete, did not follow procedure, missed the presence of telltale gunpowder particles, and used inappropriate fabric to judge the firing distance.

The victim's body was exhumed to prove the exact length of her arm, a crucial element in the muzzle-to-wound distance estimated by the original forensics investigators to determine whether the death was murder or suicide.

The conclusions and results stemming from the original forensic tests conducted on the .45 caliber weapon found near the body and on a black tube-top she wore the night of her death could not be duplicated, and the analyst who performed the tests has since been let go for failure to follow procedures on other cases.

Source: Richmond Times-Dispatch

http://www.forensicmag.com/news/firearms-analysis-murder-conviction-rejected

H. Michael's Take:

Here - the excellent work of the criminal defense lawyers defending the accused, their hard work and study of the complex procedures that must be carefully followed before forensic evidence will be admitted at trial -- may save the accused from an unfair conviction... well done. The testing here is called proximity testing.

When you retain your Colorado Criminal Defense Lawyer -- make certain that he or she goes the extra mile and examines, researches and studies every piece of evidence against you.. as was done here.

Proximity testing measures the remants and spread of the stream of heated particles
(Gun Shot Resiue or GSR) that emerge from the muzzle of a weapon that has been fired at a special cloth designed to measure the distance of the muzzle at the time of discharge.

Gunshot residue (GSR) is principally composed of burnt and unburnt particles from the explosive primer, the propellant, as well as components from the bullet, the cartridge case and the firearm used.

In 1971 John Boehm (né Lawless) presented some micrographs of GSR particles found during the examination of bullet entrance holes using a scanning electron microscope. If the scanning electron microscope is equipped with an X-ray microanalysis (electron microprobe), the chemical elements present in such particles, mainly lead, antimony and barium, can be identified.

GALVESTON, TX (KTRK) -- A young man sentenced to life in prison when he was just 15 years old may now be getting a second chance.

After spending four years behind bars for capital murder, a now 19-year-old man could be getting a new trial thanks to a ruling from the court of appeals.

The news of this decision comes just five weeks after the lawyers argued the case. The appeal means rather than sit behind bars until he dies Litray Turner is getting a second chance.

In 2006, Turner was just 15 years old when a Galveston County jury convicted him of capital murder for his involvement in the shooting death of Phuong Lam, a Dickinson convenience store owner. While Turner didn't pull the trigger, he was automatically sentenced to life without parole.

"Life without parole doesn't mean you're gonna get paroled in 50 years, doesn't mean that. It means he dies in prison," said attorney Eric Davis. "Why this case went to trial and why Litrey ended up getting a life sentence instead of some type of plea deal, I couldn't figure it out."

According to the appeals court's opinion, there was evidence to show turner was only guilty of robbery and not capital murder. The gunman in the case, identified as Andrew "young money" Brown, was sentenced to 40 years in prison, eligible for parole in 20 years; a disparity Davis was determined to fight.

"The criminal justice system just works that way, unfortunately," he said. "Often times, if you don't have enough resources, you're not able to bring much to the table."

It's highly unlikely, perhaps even impossible, for Turner to be sentenced to life in prison again. That's because last September, Texas repealed its life without parole law, making it unconstitutional to sentence juveniles to life sentences, without an opportunity for parole.

"Fifteen-year-olds are not adults. Neither are 16 or 17-year-olds," said Davis. "And for the people out there that hear me and say that's typical defense lawyer nonsense, God forbid it should happen to your son or your daughter."

Criminal defense attorney Brian Wice hopes Turner's case will help 19 other Texas teenagers currently serving out life sentences without parole, even though the law no longer exists.

"The court of criminal appeals will have to determine whether or not it's cruel and unusual punishment for juveniles to serve a sentence the legislature's now considered inappropriate," said Wice.

Brenda Turner, who says her life has been empty since her son was incarcerated, just wants the chance to take care of her basketball star at home again.

"He was taken from me when he was just 15," she told us. "I should be still taking care of him, stocking up on his favorite food, cereal and milk."

Litray still doesn't know the news. His family hopes he'll call so they can tell him directly.

H. Michael's Take

The whole idea behind the juvenile justice system is the recognition that kids are not adults -- their inds do not work like ours and their decisions are not based on the same life experience as adults. In short, they are different.

The juvenile criminal justice system operates according to the premise that youth are fundamentally different than adults, both in terms of level of responsibility and potential for rehabilitation. The treatment and successful reintegration of youth into society are the primary goals of the juvenile justice system, along with overall public safety.

The juvenile criminal justice system operates according to the premise that youth are fundamentally different than adults, both in terms of level of responsibility and potential for rehabilitation. The treatment and successful reintegration of youth into society are the primary goals of the juvenile justice system, along with overall public safety.

"Get Tough on Crime" Legislation

A steep rise in juvenile crime occurred between the late 1980s and mid-1990s. In response to a fear that juvenile crime would continue to rise at the rate seen between (roughly) 1987 and 1994, legislatures enacted measures designed to "get tough on crime."

This anti-crime sentiment of the period caused changes to be implemented to the juvenile justice system that made it increasingly similar to the adult (criminal) justice system. The shift was predictable. Instead of viewing youth as in need of rehabilitation, they were - and are now in many cases, viewed more as young criminals. Rehabilitation became a lesser priority to public safety in the aggressive campaign against crime of the 1990s.

In the late 1990s Americans faced growing concern over highly publicized and violent juvenile crime. A series of school shootings and other horrendous offenses caused the public to fear a new breed of "juvenile superpredators.," defined as "juveniles for whom violence was a way of life - new delinquents unlike youth of past generations."

This case, I hope, represents a re-examination of the serious slide from sanity that has been representative of the last 20 years...

Colorado Laws on Internet Luring - Sexual Exploitation - Are Being Enforced

August 2010 - A Douglas County Colorado Internet crimes investigation led to the arrest of a South Dakota man for Internet luring.

David W. Peterson, 48, was arrested Aug. 9 following a five-month Internet luring investigation that took place in the Douglas County Sheriff's Office Internet Crimes Against Children Unit. The investigation began in March when a detective from the Douglas County unit began chatting online with an adult male, later identified as Peterson. Peterson was led to believe he was sharing online conversations with a 14-year-old girl from Lone Tree. The conversations became sexual in nature and reportedly included obscene materials sent over the Internet from Peterson to the "victim."

Part of the job of the Douglas County Internet crimes unit is to troll the Internet for suspects who target minors for purposes of sexual gratification. The unit faces challenges in prosecution because Internet cases often involve multiple jurisdictions, crossing state and national boundaries, according to the sheriff's office website.

Peterson was arrested by the Pennington County Sheriff's Office, which executed an arrest warrant issued by Douglas County. Pennington County officials conducted a search of Peterson's home at the time of his arrest, resulting in possible additional charges in South Dakota, said Cocha Heyden, Douglas County Sheriff's Office public information officer.

Peterson faces multiple charges in Douglas County, including Internet luring and sexual exploitation of a child, Heyden said. Depending on the outcome of the South Dakota investigation, Peterson could face extradition to Colorado, Heyden said.

Peterson's arrest marks 2010's second arrest by the Internet crimes unit. Since the unit was established in 2000, it has made 80 arrests for Internet luring and Internet crimes against children, Heyden said.

H. Michael's Take:

These "sting" operations are growing across the country and especially in Colorado. Defending these cases requires an understanding of the complex laws governing this area and experience and specialization as a result of handling dozens of these cases combined with many years of courtroom experience in criminal law.

Sexual Exploitation is the criminal act of persuading, employing, enticing, or coercing a person to engage in sexual acts for the financial gain or sexual gratification of the offender. Although children are the primary victim of exploitation, exploitation is a crime that affects both adults and children. Exploitation charges will be brought against someone for enticing, persuading, or coercing the victim into such unlawful sexual acts as pornography/child pornography, human trafficking, and prostitution.

In Colorado, the statute governing this crime is as follows:

Internet Sexual Exploitation of a Child (18-3-405.4)

1. A person commits internet sexual exploitation of a child if a person, who is at least four years older than a child who is under fifteen years of age, knowingly importunes, invites, or entices the child through communication via a computer network or system to:

(a) Expose or touch the child's own or another person's intimate parts while communicating with the person via a computer network or system; or

(b) Observe the person's intimate parts while communicating with the person via a computer network or system.

2. It shall not be an affirmative defense to this section that the child was actually a law enforcement officer posing as a child under fifteen years of age.

3. Internet sexual exploitation of a child is a class 4 felony.

New DNA testing technology may soon be available in the nations crime labs. Crime labs could soon have new technology to help them solve cold cases....known as "familial DNA."

Familial DNA is usd by investigators seeking to find relatives of criminal suspects. Prosecutors want the procedures approved as an investigative tool for police, and defense attorneys say they support the idea as well.

Familial searching

Familial searching is the use of family members' DNA to identify a closely related suspect in jurisdictions where large DNA databases exist, but no exact match has been found. The first successful use of the practice was in a UK case where a man was convicted of manslaughter when he threw a brick stained with his own blood into a moving car.

Police could not get an exact match to the UK's DNA database because the man had no criminal convictions, but police implicated him using a close relative's DNA. The technique was used to catch a Los Angeles serial killer known as the "Grim Sleeper" in 2010.

However, critics have challenged the technology as "deeply antithetical to American values" and likely to lead to excess investigation of racial and ethnic minorities.

H. Michael's Take

DNA evidence is, in the opinion of most criminal defense attorney's, while certainly recognized as a double edged sword, has been used to free the innocent either accused of crimes they have not committed or to obtain the release of those in prison who have been unfairly convicted on the weakest of evidence-identification and circumstantial evidence.

Mitch Morrissey - Denver DA Morrissey makes this point in the following quote 'the good news about partial matches is that if DNA leads police to someone who's innocent, that same DNA should also be able to clear that person just as fast."

This goes under the "I thought I had seen it all" category...H

VIERA (Florida) -- A 40-year-old man who tricked caregivers into changing his diapers by pretending he had the emotional maturity of a 5-year-old apologized to a victim in court Monday before pleading guilty to charges of organized fraud.

Authorities said Sean Kelly of Port St. John told caregivers he was incontinent and hired two women to change his diapers in 2008 and 2009 but did not pay them the amount he promised.

He was officially charged with two counts of organized fraud of less than $20,000 by the Brevard State Attorney's office in February. Kelly, 40, was sentenced to a year of house arrest and four years of probation Monday. Judge Robert Wohn also ordered a psychological evaluation of Kelly.

"An apology might not be enough," Kelly told a victim in court. But ". . . for my part, I apologize."

Minutes earlier, the care giver had tearfully described how she changed Kelly's diaper and fed and bathed him."I have to live with this for the rest of my life, this shame," she said.

Prosecutor Don Loughran said Kelly likely had other victims. "I think they are too embarrassed to come forward," he said. "What this man did was despicable."

According to the Brevard County Sheriff's Office, Kelly sometimes would hire women through postings on Craigslist.org. He would call them pretending to be the brother of the disabled man who needed care. Kelly would then show up and pretend to be the man with the disability. The ruse was exposed when a caregiver's husband saw him get into a car and drive off.

Lt. Tod Goodyear, who heads the sex crimes unit of the sheriff's office, said he believed Kelly had a fetish where adults want to be fed from bottles and wear diapers.

"Online, we have found, there are groups that cater to this kind of fetish," Goodyear said.
Contact Basu at 242-3724 or kbasu@floridatoday.com.

Oklahoma

A Deltona woman plead guilty Wednesday to federal charges in a case that gained national attention. She allegedly traveled to Oklahoma to have sex with a 14-year-old boy she met online.

Annamay Alexander, 44, entered her guilty plea in the Oklahoma City Federal Court House. Alexander spared herself a trial by admitting during the hearing that she drove to the Oklahoma City area January 9th to have sex with the boy. According to her arrest report she met the boy through an online Sony PlayStation 3 virtual-reality game.

Alexander was arrested in Texas in April, several weeks after authorities issued a warrant for her arrest. She has three children of her own close in age to the boy she was accused of having sex with.

The case started after Alexander drove from Florida to Oklahoma to meet the boy. The boy ran off with Annamay and his mother found him missing during the night. She confronted the pair when they returned to the boys home the next morning. Alexander reportedly told the boys mother she had traveled from Florida to meet the boy who had married her 9-year-old daughter.

During their investigation police found Alexander had sent sexually suggestive texts to the boy along with engaging in sexting with the boy by sending nude photo's of herself to him. Authorities also found a picture of Alexander stored in the boy's PlayStation console of her in her underwear.

In many of the text messages she sent to him Annamay used the boys last name when addressing herself and told him several times she was his wife.

Annamay Alexander faces up to 30 years in Federal prison when she is sentenced.

H. Michael's Take:

This case points up the extreme reach of federal sex offender criminal offender laws. These laws allow the federal government - acting through the US Department of Justice -- to charge individuals who comitt crimes between states...

Federal Sex Crimes include:

Federal sexual offense include:

Selling or buying of children (Section 2251A(a)(b))

Certain activities relating to material involving the sexual exploitation of minors, including both distribution and receipt of visual depictions in books, magazines, periodicals, films, and videotapes (Section 2252)

Certain activities relating to material constituting or containing child pornography (Section 2252A)

Production of sexually explicit depictions of a minor for importation into the United States (Section 2260)

Transporting an individual in interstate or foreign commerce with the intent that the individual engage in prostitution or other illegal sexual activity (Section 2421)

Transportation of minors in interstate or foreign commerce, with intent to engage in criminal sexual activity (Section 2423(a))

Interstate or foreign travel with intent to engage in a sexual act with a juvenile (Section 2423(b))

Use of interstate facilities to transmit information about an individual under the age of 16, with "the intent to entice, encourage, offer, or solicit that minor to engage in any sexual activity that can be charged as a criminal offense." (Section 2425)

Colorado detective charged with perjury

DENVER -- Fort Collins Police Lt. James Broderick, the lead detective in the Tim Masters murder investigation, was on Wednesday indicted by the Larimer County Grand Jury on eight counts of first-degree perjury, The Denver Post reports.

Broderick is accused of concealing evidence that would have helped Masters at his 1998 trial, at which he was found guilty of the 1987 murder of Peggy Hettrick. The conviction was overturned in 2008 when DNA evidence pointed to other suspects.

Weld County DA Ken Buck is handling the case against Broderick in his role as special prosecutor for Larimer County

Weld County DA Ken Buck is handling the case against Broderick in his role as special prosecutor for Larimer County.

Tim Masters was sentenced to life in prison after being convicted for murder - after spending nine years in prison, he has been exonerated by DNA evidence and the detective from his case - Lt. Jim Broderick - is being prosecuted for perjury:

Masters, who served nine years of a life sentence after his 1998 arrest in Peggy Hettrick's murder, has said he hopes Fort Collins and Larimer County will finally acknowledge that he was railroaded.

The city and county have paid Masters a combined $10 million to settle a civil rights lawsuit related to the conviction, but they painted the payouts as business decisions rather than reparations.

"I am anxious to see if the leadership in Fort Collins will finally publicly admit my incarceration was a mistake or if they will continue this charade that their people did nothing wrong," Masters said in a statement provided by his attorneys. . . .

. . . Among the charges in the indictment are that Broderick intentionally lied about an FBI profile used to support Masters' arrest, shoeprints found at the crime scene, a fellow investigator's crime scene observations and his own degree of participation in the case.

The prosecutors that put Tim in prison have since been rewarded by being elected as judges - Jolene Blair and Terry Gilmore.

Although the city and county have paid out $10 million, they still admit no wrongdoing.

H. Michael's Take:

It should come as no surprise that a police officer would lie to obtain a win. Those of us on the inside of the system -- myself as a former career DA (prosecutor) and the entire defense bar, understand the mindset of "winning at all costs" along with the pressures on young prosecutors to earn their stripes. This case is the tip of an enormous iceberg whose size and depth will most likely never be wholly revealed.

What the case does, however, is highlight deficiencies in the criminal justice system that lead - every day- to injustice. My compliments to my old friend David Lane.. a true champion of due process ..

Here is the Colorado Law on the crime of perjury:

Perjury in the first degree consists of making a materially false statement under oath in the course of an official proceeding. While perjury in the second degree involves a false statement, it does not involve an official proceeding. False swearing is a catch-all for any materially false statement that does not fall under perjury in the first degree or perjury in the second degree. Perjury during official proceedings is most commonly associated with the sworn testimony of a witness in court.

Perjury in the first degree is a Class 4 felony, perjury in the second degree is a Class 1 misdemeanor, and false swearing is a Class 1 petty offense H

July 22--TROY New York-- A state emergency management official wanted in Colorado on Internet sex charges agreed Wednesday to return to that state to face the charges.

Timothy Riecker, 32, of Schodack, accused of using the Internet to develop a relationship with someone he thought was an underage girl, was sought by officials for more than a week when he was arrested Friday. He later checked into Albany Medical Center Hospital for psychiatric evaluation and was arrested Monday upon his release.

"You say you intend to waive extradition?" Rensselaer County Judge Andrew Ceresia asked Riecker on Wednesday morning.

"Yes sir," the man said, flanked by his local attorney, David Brickman.

Riecker then signed extradition paperwork and was sent back to the Rensselaer County Jail to await arrival of authorities from Golden, Colo., who will take him back to that state for arraignment.

Riecker, chief of training and exercises at the New York Office of Emergency Management, has been suspended without pay from his $74,000-a-year position, said SEMO spokesman Dennis Michalski.

Last week, State Police issued a statement saying authorities were looking for Riecker, who was reported to be despondent and threatening to harm himself.

Officials in Jefferson County, Colo., had issued a warrant more than a week ago for his arrest on charges of Internet sexual exploitation of a child.

Riecker allegedly developed a six-month relationship on the Internet with undercover investigator who posed as an underage girl, said Pam Russell, spokeswoman for District Attorney Scott Storey in Golden.

Colorado officials said Riecker repeatedly asked for nude photos and once exposed himself and performed a sex act before a Web camera.

When Riecker was contacted by the Jefferson County DA's office about the allegations, he said "it was a bad decision" and "I can promise you it won't happen again," Russell said.

Riecker faces one count each of Internet sexual exploitation of a child and attempted sexual exploitation of a child, Russell said.

Colorado authorities were uncertain when they will travel here to pick up Riecker.

H. Michael's Take

These internet "sting" cases are the result of police officers, men and women, trolling the chat rooms for individuals seeking to meet others. These officers often enter adult chat rooms, hook their prey and reel them in ... The entrapment defense can be raised in these cases (see my page on entrapment law) however these cases -- by their very nature-- are set up to prove in court.

The recent rash of Internet stings in Colorado, conducted by various police departments, introduces a trap - otherwise known as a young girl looking for company - in a chatroom, and lures the unsuspecting young males into a personal meeting with the provocative assumedly 14-year old girl after several hours over many days of chatting online.

The undercover agent is most often a seasoned male or female police officer. The tone of the conversation is nothing short of "enticing erotica."

In my 26 years as a Colorado Criminal Law attorney, I've never seen methods quite like this used before. All potential defenses to the charges, including entrapment and outrageous government conduct.

Who Gets Stung?

Studies show that the majority of arrests resulting from Internet stings fashioned in a manner similar to those being conducted in Colorado are of white thirty-something year old home-owning males with incomes of at least $73,000 per year.

Interestingly enough that is the exact same profile of the most frequent user of the Internet and the source of the majority of Internet commerce.

If you have been arrested for an Internet sex crime or you believe you may be under investigation by the police for an Internet sex crime, get immediate legal help. Contact us your freedom may be at stake.

The penalties for any sex crime are severe, especially if you must register as a sex offender for the rest of your life. But the personal costs of an Internet sex crimes charge can be just as serious as the criminal costs. It is embarrassing and harmful to family and marriage. If your job requires professional licensure, a security clearance, or involves children, you may lose your job. You may not be allowed to live within a certain distance of a daycare, playground, or school. Even high school kids can be convicted of Internet sex crimes and placed on the sex offender registry.

At The Steinberg Colorado Criminal Defense Lw Firm we understand how difficult and stressful this is. We tackle your case aggressively but with discretion and sensitivity. Our goal is to minimize the negative consequences of the Internet sex crime charge or conviction and to get the best possible outcome, given the facts of your case.

Continue reading "Colorado Official Waives Extradition in Internet Sexual Exploitation Case" »

From the UPI:

Closing arguments set in Blagojevich trial

CHICAGO, July 26, 2010 (UPI) -- Following seven weeks of testimony, closing arguments begin Monday in former Illinois Gov. Rod Blagojevich's corruption trial.

Prosecutors called 27 witnesses in the trial. The defense called no witnesses and was expected to argue that the government failed to prove its case.

Observers say defense attorney Sam Adam Jr.'s presentation will try to address why he didn't deliver on his promise to put Blagojevich on the stand.

At issue are charges that Blagojevich corrupted his office by trying to leverage his power for personal gain. The government contends that, among other things, Blagojevich was trying to peddle President Barack Obama's former U.S. Senate seat.

Attorney Michael Monico, who represented convicted Blagojevich fundraiser Christopher Kelly before Kelly committed suicide last year, said Blagojevich's lawyers may portray him as a buffoon.

"You can't hold him criminally accountable" for being goofy, Monico said. "No one takes Blagojevich seriously, and that's the point. He's blabbing, but when it comes to action, what does he do?"

Criminal defense attorney Patrick Cotter said Blagojevich didn't have to complete a criminal act to be found guilty in a conspiracy.

"It's talk plus action," he said. "Not talk plus action plus completion."

H. Michael's Take:

The nature of the Crime of Conspiracy is complex. Known as an Inchoate Crime, that is an incomplete crime.. other examples of inchoate or "incomplete" crimes are Attempts to committ a crime - or solicitation for the completion of a crime ...such as prostitution.

Under Colorado Law, a conspiracy is an agreement between two or more persons to break the law at some time in the future,with at least one overt act in furtherance of that agreement.

For the purposes of concurrence, the actus reus (or physical act) is a continuing one and parties may join the plot later and incur joint liability and conspiracy can be charged where the co-conspirators have been acquitted or cannot be traced.

Finally, repentance by one or more parties does not affect liability but may reduce their sentence.

Every inchoate crime or offense must also have the mens rea (or mental state ) of intent. That is, an inchoate offense requires that the defendant have the specific intent to commit the underlying crime.

For example, for a defendant to be guilty of the inchoate crime of solicitation of murder, they must intend a person to die.

A true inchoate offense occurs when the intended crime is not perpetrated,.

Defenses

There are a number of possible defenses to the charge of an inchoate offense, depending on the jurisdiction and the nature of the offense.

Impossibility

Impossibility is no defense to the crime of attempt where the conditions creating the impossibility are unknown to the actor.

Abandonment

A defendant may plead and prove, as an affirmative defense, that they:

1.Stopped all actions in furtherence of the crime or conspiracy
2.Tried to stop the crime as it was ongoing
3.Tried to convince the co-conspirators to halt such actions, or reported the crime to the police or other authorities

Blagojevich, while he has no burden of proving anything in his defense, must, in my opinion, succeed at establshing in the minds of the jurors, that he intended nothing but blather and bluster in his conversations with others.

The DA, however has effectively countered by attacking the Defendant's character in my opinion, that - "It was about him, defendant Rod Blagojevich, and not the people of the State of Illinois, whom he had sworn an oath to serve," Assistant U.S. Attorney Christopher Niewoehner told jurors. Niewoehner time and again addressed a common criticism of the case: that it was all just talk about accused crimes that never ended up happening.

"The law, (of conspiracy) doesn't require you to be a successful crook, it just requires you to be a crook," Niewoehner told jurors and a packed courtroom.

LOCKPORT--Niagara County Judge Matthew J. Murphy III on Friday scheduled an Aug. 4 hearing on whether prosecutors will be allowed to tell a jury that Gwendolyn Garcia, charged with the stabbing death of her boyfriend, had a vegetable thrown at her by the victim 3z years before.

Garcia, 31, admits that she killed Randy R. Whitney, 38, in their Hartland apartment. In a trial for first-degree manslaughter scheduled to start Aug. 9, she is expected to plead self-defense, pointing to a history of domestic violence between the two.

Prosecutors want to offer a story from Whitney's mother, Linda, that she saw her son "playfully" throw a pepper at Garcia in the summer of 2006, to which Garcia allegedly responded that she could kill him for that.

Meanwhile, defense attorney Michael W. McNelis said Friday he has dropped the notion of calling an expert witness to testify about battered woman syndrome, which means prosecutors are no longer seeking a pretrial psychiatric examination of Garci.

H. Michael's Take:

This case points to the absurdity of just how far a prosecutor is willing to go to "taint" a jury in a weak domestic violence prosecution.

Under Colorado Domestic Violence law, the DA in a domestic violence case that has gone to trial, is permitted to use prior episodes of so called "domestic violence" to prove the case before the court. This is called Ruloe 404 (b) or similar transaction evidence.

The law reads as follows:

18-6-801.5 - Domestic violence - evidence of similar transactions.
Top

(1) The general assembly hereby finds that domestic violence is frequently cyclical in nature, involves patterns of abuse, and can consist of harm with escalating levels of seriousness. The general assembly therefore declares that evidence of similar transactions can be helpful and is necessary in some situations in prosecuting crimes involving domestic violence.

(2) In criminal prosecutions involving domestic violence in which the defendant and the victim named in the information have engaged in an intimate relationship as of the time alleged in the information, evidence of any other acts of domestic violence between the defendant and the victim named in the information, and between the defendant and other persons, constitute other acts or transactions for the purposes of this section, and the court may authorize the admission of evidence as provided in subsection (3) of this section.

(3) The proponent of evidence of other acts or transactions under this section shall advise the trial court by offer of proof of such evidence and shall specify whether the evidence is offered to show a common plan, scheme, design, identity, modus operandi, motive, or guilty knowledge or for some other purpose.

(4) Upon the offer of proof under subsection (3) of this section, the trial court shall determine whether the probative value of the evidence of similar acts or transactions is substantially outweighed by the danger of unfair prejudice to the defendant, confusion of the issues, or misleading of the jury if the evidence is allowed or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

(5) Upon admitting evidence of other acts or transactions into evidence pursuant to this section and again in the general charge to the jury, the trial court shall direct the jury as to the limited purpose for which the evidence is admitted and for which the jury may consider it.

Juries, upon hearing about other episodes of so called conflict between the parties, use that information to bridge the gap in an otherwise weak domestic violence case .. that is unfair in my opinion...

In this case the attempt to use of other crimes evidence points to the absuridity of these rules.

A former college student who had been accused of libeling a professor in an online
journal can pursue his lawsuit against the prosecutor who approved a search warrant affidavit for his home, a federal appeals court said Monday.

The 10th U.S. Circuit Court of Appeals issued a ruling reversing a lower court's dismissal of the lawsuit against Weld County prosecutor Susan Knox.

The lower court said Knox couldn't be sued because of qualified immunity for overnment employees.

The appeals court disagreed, sending the case back to the trial court.

Former University of Northern Colorado student Thomas Mink sued Knox in 2004 after she approved a search warrant affidavit for his home following a complaint that he had libeled a professor in his online paper "The Howling Pig." Greeley police seized a computer and written materials from the home.

A district court granted Mink's motion for a temporary restraining order and ordered police to return the computer and other items.

The district attorney's office then said the statements in "The Howling Pig" couldn't be prosecuted under Colorado's criminal libel law.

Mink pursued his lawsuit, saying his constitutional rights were violated. A district court ruled that Knox couldn't be sued for approving the affidavit because a reasonable official in her position could believe the statements weren't constitutionally protected.

The appeals court said a reasonable person wouldn't take the spoof of the professor as
statements of fact or believe publishing the statement was a crime.

H. Michael's Take:

This case will send ripples of fear into the Colorado Prosecutors subculture. As long as I can recall (over 28 years), DA's have enjoyed complete and absolute immunity from civil lawsuits as a result of the discretionary decisions they make as prosecutors.

Immunity is an exemption granted by statute or government authorities from a legal duty, penalty or prosecution. Before this case in Colorado District Attorney's enjoyed almost absolute immunity from civil suit -that is -from liability for decisions made in the course of their duties... this case has the potential to change that status...

Ex-Marine Samuel Betancourt, a veteran of battlegrounds in Iraq and Afghanistan, came home with the demons of war haunting his mind."I started getting flashbacks," Betancourt said. "I started having dreams about combat."He was suffering from post-traumatic stress disorder. But instead of getting treatment, Betancourt started getting high on marijuana and methamphetamines.

After his fourth arrest in Dinuba on drug charges, Betancourt, 27, was facing six years in state prison."I thought that was a little extreme," said Betancourt, who now lives in Visalia. "I thought I'd better get a lawyer."His attorney directed him to the new Veterans Court in Tulare County Superior Cour (CA), a 5-month-old program exclusively for combat veterans who run afoul of the law.

Instead of being locked up, Betancourt was enrolled in an 18-month mental health treatment program approved by the U.S. Department of Veterans Affairs.Some civil liberties advocates are concerned about creating a double standard. But in light of their sacrifices, veterans are entitled to special judicial consideration, officials said. "These are people who have served their country and as a result have received mental or physical injuries," said Tulare County Assistant District Attorney Don Gallian, who oversees the program and is himself a veteran. "We want to pay back a little bit for what they did for us".

Congress is now considering legislation to fund veterans courts for nonviolent offenders who have drug problems.

Veterans courts follow the drug court model: Instead of jail, the defendant is diverted to mental health treatment. But the judge can incarcerate defendants who skip therapy, break the law or fail random drug tests. To be eligible, the veteran must have served in a combat zone, been honorably discharged and be diagnosed with post-traumatic stress disorder, traumatic brain injury or a related psychological problem.

Under the terms of his veterans court order, Betancourt attends three alcohol or drug support group meetings a week, can't hang out with people who drink or take drugs, gets random drug tests, meets weekly with a psychologist and his probation officer, comes to court once a month and attends group therapy for combat veterans.

In Colorado:

In Colorado, the Fourth Judicial District in Colorado Springs (El Paso County) has initiated the same type of program. Judges, probation officials, legislators, representatives of the district attorney and public defender and state and El Paso County health and human services offices gathered in February of this year at the El Paso County Judicial Building to announce the formal opening of the newly developed Veteran Trauma Court and to launch and to establish Colorado's first court specifically designed to meet the unique needs of military veterans with service-related trauma disorders who have entered the criminal justice system.

The grant-funded court is modeled after other problem solving courts such as drug and mental health courts. It will offer eligible offenders an alternative to incarceration through treatment and counseling and regular court appearances.

The Colorado Division of Behavioral Health estimates approximately 1,540 veterans will receive diversion and treatment services through the life of the five-year grant.Those eligible for treatment and counseling services through the court are military veterans charged with a lower-level felony in the 4th Judicial District who experienced trauma related to military service and have been diagnosed with a trauma spectrum disorder and exhibit a willingness to actively participate in treatment and recovery and fully cooperate with the court.

H. Michael's Take:

Statistics on the success of veterans courts nationwide haven't been compiled. But in the Buffalo program, 30 of the 150 vets enrolled have graduated and none of the graduates has been arrested since, said coordinator Jack O'Connor. Five flunked out and went to jail or paid a fine.

Prosecutors, (and ex prosecutors like myself) know that the upsurge of veterans being arrested for vandalism, drug use and domestic violence, when their backgrounds show no history of wrongdoing before going to war, means something is wrong that can be traced to the obvious trauma these men and women suffered in war.

In a 2007 study by the Rand Corp. estimated that about 18 percent of veterans from Iraq and Afghanistan are coming home with post-traumatic stress syndrome and half don't seek treatment. About 1.7 million service members have served in Iraq and Afghanistan. Veterans don't break the law more than anyone else, but those who do are likely to be abusing drugs and alcohol, according to a 2000 study by the federal Bureau of Justice Statistics.

In short - this idea, like Mental Health Courts ( see older Blog Entry), is a good idea whose time has come!

In 1996, a Federal Law was enacted which prohibits those convicted of a domestic violence offense from possessing firearms. in 2009 in the case,of United States v. Hayes, a West Virginia man who had been convicted of a domestic violence offense in 1994, against his then-wife but nowhere in the record was there an indication ro a reference to his plea as an "act of domestic violence."

Ten years later, in 2004, after the Federal Law in questions had been passed [18 U.S.C. §922(g)(9)], police responded to a complaint of domestic violence at Hayes' home. Upon search of the home, police found a rifle amongst Hayes' possessions. Police were also able to determine that within the ten year time-frame, Hayes had owned at least four other firearms.

Hayes' 1994 conviction was for misdemeanor battery, rather than a specific offense of domestic violence, even though the victim was undoubtedly his wife at the time.

The appellate record was a ping pong of reversed decisions ultimately ending in a negative result for an individual's right to bear arms..

Hayes had argued to a United States District Court that the Federal Ban on possession of firearms should not apply to him since the law had not been enacted yet and his plea did not include a reference to the fact that it was an act of domestic violence -- the so called "domestic violence finding or "tag."

The (Lower) District Court rejected Hayes' argument and Hayes entered a conditional plea of guilt, preserving the case for appeal.

Upon appeal, the United States Court of Appeals for the Fourth Circuit reversed Hayes' conviction, citing that the Hayes' conviction for misdemeanor battery was not specific to constitute domestic violence, despite the fact the battery was against his former wife.

The Supreme Court of the United States agreed to hear the case, and, reinstated the conviction against Hayes.

The Supreme Court found the definition of misdemeanor crime of domestic violence, as it applies to the Federal Statute, to include two elements

(2) it must be committed by a person with a specified domestic relationship to the victim.

The Court held that the statute does not require the prior conviction to specifically apply to an offense of domestic violence, but rather that the Government can prove such a domestic relationship existed in the previous offense in order to apply the Federal Law in the case at hande,

The Supreme Court held that requiring a prior offense to be charged specifically as a domestic violence offense would "frustrate Congress' manifest purpose" in preventing the combination of firearms and the tendency of a person to commit domestic violence.

Under present Federal Law, Domestic Violence is defined as any abusive relationship that results in emotional abuse, physical violence, sexual assault, stalking, assault, and/or threatened violence.

State Court convictions can have Federal implications. If you have been charged with an offense of domestic violence, or an offense stemming from a prior conviction, it is important you contact an experienced Colorado Criminal Defense Attorney immediately.

H. Michael's Take:

Today most Colorado Front Range Counties "Fast Track" Domestic Violence cases to trap the inexperienced targets of what often turn out to be very weak cases of so called domestic violence. The impact of taking a "plea" in these cases - as a result of Federal Laws such as the Federal Gun Laws mentioned in this case report -- is extensive and drastic. Information is power -- do NOT take a plea bargain until you are fully aware of the full ramifications of the plea bargain are made known to you.

A state court judge has NO obligation under the present law to advise you regarding the loss of your Federal right to bear arms.

For a confidential consultation, contact our offices via phone at 303-627-7777, or email at hmsteinberg@hotmail.com.

Drivers in New Jersey who don't speak English must be informed of the
consequences of refusing to take an alcohol breath test in a language they understand, the state Supreme Court ruled Monday.

For the first time, as a result of the good work of the New jersey Association of Criminal Defense Lawyers the state's position that the all important advisement regarding the requirement that a person be advised of their obligation to take a blood or breath test (known here in Colorado as the Express Consent Law) not necessarily be understood - "just that it be read," was overturned as unreasonable by the Court. The decision gives immunity to any drunken driver who speaks a language that the officer is unable to identify or translate.

Since April, New Jersey has provided police with a website with the statement in audio and written form in 10 languages widely spoken in the state. State police have used the website at headquarters before administering the breath test, said a spokesman, Detective Brian Polite, but there are no statistics available as to how often.

Martin Perez, president of the Latino Leadership Alliance of New Jersey, called the ruling "a step forward" to dealing effectively with the states' population. More than 1.5 million immigrants live in New Jersey, and a quarter speak a language other than English.

The language issue is one states have grappled with on similar cases for years, with none requiring translations of these statements for non-English speakers, says Jeffrey Mandel, who filed a brief in support of the Marquez case for the Association of Criminal Defense Lawyers of New Jersey.

In most states, drivers are deemed as having given implied consent to a breath test as a condition of being on the road and are reminded when stopped by police that refusing to do so can result in penalties as severe as those for impaired driving.

The American Civil Liberties Union of New Jersey says a lack of a translation policy holds non-English speakers to a "higher standard" of remembering what's in the driver's manual. The ACLU, in a statement, likens it to the importance of translating Miranda rights and court proceedings, which the state's courts do provide.

State approaches to the breath-test consent typically fall into one of two categories:

• At least seven states call for "reasonable" efforts to be made by police to have those facing prosecution understand the consequences of refusing the test: Alaska, Iowa, Nebraska, New York, Pennsylvania, Washington and Wisconsin. Definitions of "reasonable" have varied depending on the judge and the facts of each case, but several rulings have focused on an officer making a good faith attempt to convey the warning.

• Five other states -- Georgia, Illinois, Minnesota, Ohio and Oregon -- follow the view of New Jersey's Democratic Attorney General Paula Dow that the law requires the statement be read, not that drivers must understand it.

Two other states also provide opportunities for translation. In New York, translators are on-call 24/7 to address any translation issues that may arise, according to the New York State Police. They also use cards with the warnings written in Spanish.

Washington state has the statement written in English and Spanish, as well as a telephone language service available to translate it into other languages. The Washington State Patrol reports the language line was used 49 times in 2009 and 29 times so far in 2010.

H. Michael's Take

Colorado's Express Consent Law:

By operating a motor vehicle in the state of Colorado you are automatically giving "express consent" or granting permission to be administered a chemical test by breath, blood, or urine to measure your blood alcohol content. If a law enforcement officer requires you to take a test because of suspected drinking and driving and you refuse, your license will be revoked at that point for one year.

Colorado Law does not now require Colorado's Express Consent Advisement be translated into the suspects native language... it should.

In a very recent decision by the United States Supreme Court, in Berghuis v. Thompkins, the conservative majority of the Court further curtailed an individual's right to silence under the 5th amendment by requiring the suspect to fully and articulately state the exercise of his/her right to remain silent..

Thompkins argued that his confession was obtained in violation of the Fifth Amendment and that he was denied effective counsel at trial. The Sixth Circuit held that the Michigan Supreme Court's finding that Thompkins waived his Fifth Amendment right was unreasonable because Thompkins refused to sign an acknowledgement that he had been informed of his Miranda rights and rarely made eye contact with the officer throughout the three hour interview.

The Question: before the Court

1) Did the Sixth Circuit improperly expand the Miranda rule when it held that defendant's Fifth Amendment rights were violated?

Conclusion:

Yes. The Supreme Court reversed the Sixth Circuit, holding that the state court's decision to reject Mr. Thompkins' Miranda claim was correct. The Court reasoned that Mr.Thompkins failed to invoke his Miranda rights to remain silent and to counsel because he failed to do so "unambiguously." The Court reasoned that Mr.Thompkins waived his Miranda right to remain silent when he "knowingly and voluntarily" made a statement to the police.

H. Michael's Take:

While the officers had advised Thompkins of his right to remain silent, they thereafter questioned him for almost three hours. Thompkins resisted their questions and refused to utter a word. At the end of the three hour period, the police asked Thompkins whether he prayed that God would forgive him "for shooting that boy," did Thompkins whisper, "Yes." This answer was used against him at trial.

Miranda v. Arizona had previously held that the police could not assume suspects had given up their right to remain silent unless the suspect has made it clear that he or she wanted to talk.

After theThompins case, law enforcement can now assume a supsect has given up their right to remain silent unless the suspect clearly states that he or she desires to remain silent.

This ruling stands Miranda on its head -- Justice Sonia Sotamayor, in her dissent to this opinion explained the significance of the decision. She reprimanded the majority for retreating from the broad protections afforded by Miranda, stating that now a criminal suspect waives his rights simply by uttering a "few one-word responses."

More than ever before, it is necessary that individuals being investigated by law enforcement exercise their rights under the United States and Colorado Bill of Rights. It is fundemental to the exercise of those rights that persons have the right to obtain good legal representation. Please contact H. Michael Steinberg Denver, Colorado Criminal aw Attorney for over 26 years if he can assist you with your case.

Call 303-627-777 for a free and confidential consultation and to learn more about your legal rights.