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April 2010 Archives

April 27, 2010

How Far Can Colorado Judge Enter into Plea Bargaining Negotiations?

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On April 26, 2010, a Colorado Judge was reversed on appeal after he improperly pressured a defendant into a plea bargain by threatening him with a lengthy sentence if the defendant chose to go to trial.

By stepping out of his role as "a neutral and impartial arbiter of justice" and becoming involved in plea negotiations in a criminal case, the Colorado Supreme Court ruled the defendant would be allowed to withdraw his guilty plea.

James M. Crumb, Jr. was charged with criminal impersonation and multiple felony theft and habitual criminal counts; if convicted of all charges he would have faced a 192-year prison sentence. At the last pretrial conference before Crumb's trial was to begin, Denver County District Judge Robert McGahey, Jr. told him it was his final opportunity to take a plea deal.

After telling the defendant he was speaking "more as a human being than as a judge," McGahey said he would be forced to impose the maximum sentence if Crumb were convicted at trial, but that he would have sentencing discretion if Crumb pleaded guilty. McGahey later said he was "not going to be a happy judge" if no plea deal was reached.

Crumb moved to withdraw his guilty plea 49 days later, arguing he felt pressured into it. McGahey denied the motion.

The Colorado Supreme Court reversed the lower court's decision.

"These improper comments appear to have influenced the defendant's decision to reconsider his earlier rejection of the offered plea and his ultimate decision to plead guilty," Justice Michael Bender wrote in the Supreme Court's opinion. "To allow this guilty plea to stand would run counter to the fair and impartial administration of justice." (from Law Week Colorado).

H. Michael's Take:

My take on this case is simple, this particular judge went too far in his involvement in plea negotiations. Colorado law provides that judges can be involved in plea negotiations to the extent that a proposed plea can be "run" by the judge to determine if the judge would accept the plea bargain proposed. Acting in that capacity, a judge properly advises the parties whether they are wasting their time by attempting to enter into an agreement before placing the agreement on the record in open court. In this case, the judge took his role in this process a little too far.. H

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Posted by H. Michael Steinberg | | Email This Post

April 23, 2010

The Courts Should Not Punish Certain Offenders - Mental Health Courts

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After 26 years of practicing Criminal Law In Colorado it is time to intelligently address the issue of the mentally ill and their treatment in the Colorado Criminal Courts.

The costs of continually ignoring this problem are staggering.

The Denver Daily News wrote recently (March 3, 2009) that Colorado could ultimately save millions of dollars by improving mental health services for mentally ill people involved in the criminal justice system, says the group that represents Colorado's 17 community health centers.

In 2007, Colorado spent 8.8 percent of the state's general fund on corrections, according to Colorado Behavioral Healthcare Council (CBHC).

Several Colorado mental health experts say that Denver and other cities are losing money by not allotting enough funds on community mental health services for the mentally ill who are cycled through incarceration -- which costs up to $60,000 per year -- instead of being treated in the community, which CBHC says costs around $6,000-$8,000 a year.

"We're very strong proponents to get treatment to people rather than lock them up,' said George DelGrosso, executive director of CBHC. "We can be a good investment for the state."

Some counties, including the Arapahoe County District Attorney (18th Judicial District), have started a path breaking approach to these cases -- patterned after drug courts -- these mental health courts .

A press release describing the court follows:

"The 18th Judicial District Mental Health Court is a Problem Solving Court which diverts selected defendants with a mental illness into a specialized, judicially supervised, community based program that provides intensive case management and mental health treatment. Its design is based on knowledge and evidence based research from existing mental health courts across the nation and the National Consensus Project.

The mental health court was a collaborative effort by over sixty individuals and agencies with representation from The Chief Judge and the courts; the district attorney and asst. prosecutors; defense bar both private and public defender; county attorney; mental health agencies; probation; law enforcement from both counties; jail staff; county criminal justice planners, housing and pretrial; community corrections; and consumers.

The mental health court is PROBLEM SOLVING COURT which is very different from the normal ADVERSARIAL COURT process that exists in the criminal justice system. A problem solving court focuses and addresses the how and why the individual with a mental illness became involved in the criminal justice system.

The goal is to stop the revolving door of the individual with a mental illness continually going in and out of the jail and prison system and in the long run allowing the individual to graduate from the program with a better quality of life and with a more true community safety in the long run."

One of the key founders of this court is a good friend and excellent lawyer Ginba Shimeall.

Referrals to the Mental Health Court can be made to GINA SHIMEALL, 18TH JUDICIAL DISTRICT MENTAL HEALTH COURT COORDINATOR; 7305 SOUTH POTOMAC ROOM 140(JUDICIAL SERVICES OFFICE) CENTENNIAL, COLORADO.

These new courts deserve our support and our thanks.


Posted by H. Michael Steinberg | | Email This Post

April 23, 2010

Understanding the Colorado Statute of Limitations Laws

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First, what is a statute of limitation? A statute of limitation sets forth the maximum time
after an event that legal proceedings based on that event may be initiated. They are commonly collectively as "periods of prescription" or "prescriptive periods."

The purpose of a statute of limitations or its equivalent is to ensure that the possibility of punishment for an act committed sufficiently long ago cannot give rise to either a person's incarceration or the criminal justice system's activation. In short, unless the crime is exceptionally heinous in nature, social justice as
enacted through law has compromised that lesser crimes from long ago are best let be rather than distract attention from contemporary serious crimes. ( Wikipedia)
Second, what are some of the common statutes of limitations for Colorado Crimes?

For crimes such as Forgery, Kidnaping, Treason, and Murder - there is no limit on the
time to file these criminal charges. The same is true of Sexual Assaults on c Child - ( but this can vary depending on the date of the offense)

For crimes of Fraud and most felonies, the statute of limitations is 3 years

For most Misdemeanors, including DUI, DWAI, DEACthe statute of limitations is 18
months.

For Class 1 and 2 misdemeanor traffic offenses One year

For Petty Offenses - 6 months

Once the time allowed for a case by a statute of limitations runs out, if a party raises it as
a defense and that defense is accepted, any further litigation is foreclosed and there is a legal bar to bringing the case.

Most jurisdictions provide that limitations are tolled under certain circumstances. Tolling
means stopping the running of the statute of limitations and prevents the time for filing the criminal case from running while the condition exists.

An example of such a circumstance is the situation where charges have not been filed and the defendant flees the state to avoid being arrested thereby delaying the prosecution of the case.

Under this circumstance - the law reads:

(2) The time limitations imposed by this section shall be tolled if the adult offender or
juvenile is absent from the state of Colorado, and the duration of such absence, not to
exceed five years, shall be excluded from the computation of the time within which any
complaint, information, indictment, or petition in delinquency must otherwise be filed or
returned.

Posted by H. Michael Steinberg | | Email This Post

April 16, 2010

Denver Colorado - Local Priest Under Investigation for Sexual Assault on a Child

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A popular, long-time priest has been removed from his duties because of an allegation dating back to the 1970's.

Father Mel Thompson of St. Thomas More Parish in Centennial was released from his priestly duties after the Archdiocese of Denver received a tip from an adult male last Wednesday. The man said Thompson sexually assaulted him in the early 1970's.

Thompson's dismissal has raised questions about civil and criminal law. It is clear that the statute of limitations has run its course in this case and law enforcement will not be able to prosecute the case.

Some have argued that the laws need to be changed. They argue that there is no statute of limitations for murder, for treason, for forgery. They argue that the "no limit" provision that now applies to Sexual Assaults on Children that have been committed today should be made retroactive. In Father Mel's case if the crime were to occur today, the statute of limitations would not bar his prosecution.

But the change in the statute of limitations for Colorado Sexual Assault on Children cases was not made retroactive and therefore would not apply to acts that may or may not have occurred in the early 1970's when this assault allegedly happened.

If you have been charged with a case of Sexual Assault it is important that you have an experienced criminal defense lawyer on your side. Filing appropriate motions to dismiss and exclude evidence can often be the difference between walking away from the charges and being convicted of a felony or a misdemeanor.

Additional Reading:

Archbishop Chaput removes Centennial priest accused of abuse, The Colorado Independent, April 12, 2010.

Posted by H. Michael Steinberg | | Email This Post

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