mt:Include module="Global Settings" /> December 2010 Archives: Colorado Criminal Lawyer Blog

December 2010 Archives

December 31, 2010

DNA, SANE Nurse - Expert Analysis in Colorado Sexual Assault Conviction May Have Made the Difference

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The Following verdict in a Colorado Sexual Assault Trial demonstrates the many levels of testimony that can be admitted in a trial .. it is instructive at many levels for that reason

Jury convicts Valdez of sex crimes Thursday, Dec 30th, 2010

DEL NORTE, Colorado ・A Rio Grande County District Court jury deliberated for four hours before the criminal incest trial of Arthur Valdez ended with a verdict of guilty on two counts.

Valdez, 39, has an address in Alamosa and is reportedly a registered sex offender with a previous felony conviction, which qualifies him for enhanced sentencing for a repeat offense.
A hearing regarding the habitual sentencing enhancer for Valdez will be held Jan. 12, 2011. His sentencing is scheduled for Feb. 9.

Assistant District Attorney Crista Maestas told the jury that, throughout the trial, they had heard testimony from the alleged victim; school officials who knew the young woman better than her own family did; expert testimony from a Colorado Bureau of Investigation (CBI) criminal laboratory analyst; the Sexual Assault Nurse Expert (SANE) who performed a physical exam on the girl, and from others who investigated the case.

Responding to defense allegations that the girl had lied and set her father up as an act of revenge, Maestas asked the jury, What did she (the alleged victim) get from this?・

He ended up homeless, she graduated and not a single family member was there. She had to undergo a horrible exam and tell her story repeatedly "why in the world would she possibly make this up?"

The defense claimed the alleged victim wanted revenge because she didn't have the relationship she wanted to have with her father. The defense admitted Valdez was not a model father to his daughter, but said he was not on trial for that. They claimed Valdez thought his daughter would try to set him up and deliberately stayed away from her or had others with him when they were together.

Defense attorneys claimed a CBI Analyst findings from a sample on a pair of underwear was inconclusive for bodily fluids and only uncovered skin cells.

Maestas countered that the analyst reported that they were enucleated cells of some sort. The CBI also reported that the YSTR analysis matched all 11 sites. The YSTR is a specific DNA match test for the presence of the male or Y chromosome and the identity of the Y.

With all sites matching, the analyst reported the DNA sample could only have come from the defendant or one of his paternal male relatives.


H. Michael's Take

In this case you have a classic frontal attack on the victim's credibilit. The defense lawyer did an excellent job and had much to work with in this case in the area of witness credibility. However, notice the prosecution's expert forensic evidence attack that went unrebutted for the most part.

The SANE nurse:

Sexual Assault Nurse Examiner (SANE) Programs were created whereby specially trained forensic nurses provide 24-hours-a-day, first-response care to sexual assault patients in either hospital or non-hospital settings.

These nurses go well beyond the care of the alleged victims - they collect forensic evidence traditionally performed in hospital emergency departments. They document injuries and physical evidence, they document the alleged victim's statements and their demeanor

The CBI - Colorado Bureau of Investigation Testimony

Here - even though the sample of the DNA evidence was questiionable - it was admitted and was most likely used by the jury to push the case over the beyond a reasonable doubt standard

Bottom Line: Defending an allegation of sexual assault is difficult under the best of circumstances -- defending such a case without expert testimony to counter the State of Colorado's nearly endless resources -- is daunting -- a war chest of defense funds is often necessary to mount an effective defense at times.

Posted by H. Michael Steinberg | | Email This Post

December 27, 2010

Police - Citizen Encounters: New Law in Colorado for 2010 Creates Right to be Advised of Search and Seizure Constitutional Protections Under the Fourth Amendment

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Colorado Change in Criminal Law 2010: Citizen Police Contact - New Protections!

Colorado is one of the first states in the nation to enact a requirement be placed on police officers in citizen - police contacts. Unlike the Miranda decision that was decided under the Fifth Amendment to the US and Colorado constitution, and which requires the police advise a person of their so called Miranda Rights prior to questioning following an arrest,

.. The Fourth Amendment has no such requirement to advise the citizen of their right to refuse to be searched or to have their automobile searched. This new law - enacted in 2010 - creates such a requirement. Here is a summary of the law followed by the actual law itself.

Restated, this new law requires that prior to conducting a consensual search of a person, personal effects, or vehicle a peace officer must get either oral or written consent for the search after advising the person that they may refuse. This new law does not apply to a valid search incident to a lawful arrest or to a search for which there is a legal basis which includes, but is not limited to, searches in correctional facilities, jails, community corrections facilities, mental health facilities or searches of a person on probation or parole by a probation or parole officer when such searches are a condition of supervision

The Bill was called H.B. 10-1201 Consensual searches - person, automobile, or effects - advisement - consent before search - remedy for violation - applicability.

Before conducting a consensual search of a person, the person's effects, or a car, a peace officer is required to articulate the factors related to the search to the person and obtain the person's consent to the search.

If a defendant is searched in violation of the act and moves to suppress the evidence obtained in the search, the court shall consider the failure to comply with the statute as a factor in determining the voluntariness of the consent.

The provisions of the act apply only to searches for which there is otherwise no legal basis

Here is the actual law itself:

16-3-310. Oral advisement and written consent prior to search of a vehicle or a person during a police contact.

(1) (a) Prior to conducting a consensual search of a person who is not under arrest, the person's effects, or a vehicle, a peace officer shall comply with paragraph (b) of this subsection (1).

(b) A peace officer may conduct a consensual search only after articulating the following factors to, and subsequently receiving consent from, the person subject to the search or the person with the apparent or actual authority to provide permission to search the vehicle or effects. The factors are:

(I) The person is being asked to voluntarily consent to a search; and

(II) The person has the right to refuse the request to search.

(c) After providing the advisement required in paragraph (b) of this subsection (1), a peace officer may conduct the requested search only if the person subject to the search voluntarily provides verbal or written consent. Other evidence of knowing and voluntary consent may be acceptable, if the person is unable to provide written or verbal consent.

(2) A peace officer providing the advisement required pursuant to subsection (1) of this section need not provide a specific recitation of the advisement; substantial compliance with the substance of the factors is sufficient to comply with the requirement.

(3) If a defendant moves to suppress any evidence obtained in the course of the search, the court shall consider the failure to comply with the requirements of this section as a factor in determining the voluntariness of the consent.

(4) This section shall not apply to a search conducted pursuant to section 16-3-103, C.R.S., a valid search incident to or subsequent to a lawful arrest, or to a search for which there is a legal basis other than voluntary consent. This shall include, but not be limited to, a search in a correctional facility or on correctional facility property, a detention facility, county detention facility, custody facility, juvenile correctional facility or any mental health institute or mental health facility operated by or under a contract with the department of human services, a community corrections facility, or a jail or a search of a person subject to probation or parole by a community supervision or parole officer when the person has consented to search as a term and condition of any probation or parole.


H. Michael's Take

It is about time.. The people have a right to know their privacy rights - and the police should not be allowed to take advantage of their ignorance and to take advantage of the obvious circumstance of intimidation inherent in all police citizen encounters in Colorado.

Posted by H. Michael Steinberg | | Email This Post

December 24, 2010

Domestic Violence Increases Because of the Bad Economy

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Recently a Texas newspaper reflected a sruvey by the Allstate Foundation that has found nine of the ten domestic violence programs in the Dallas area reported a significant increase in demand for their services this year. It's a trend they blame, in part, on the bad economy.

The decrease in the resources of many marriages has led - at large part - to the increase in acts of domestic violence.... It is a national trend - and it is growing here in Colorado as well.

Many domestic violence shelters report that calls for help have also increased drastically... in some cases, as much as 60-percent since last year.

"They're very open with us and they'll tell us its because of their finances," said Catherine Olde of Safe Haven of Tarrant County.

Advocates say the economy has added stress on families, making abusers more violent and men and women less likely to leave the families.

Shelter services, meanwhile, are being stretched to their limits trying to meet the increased need.

Advocates are now trying to focus their efforts on prevention, while helping as many people as they can.

H. Michael's Take

It is no surprise to Colorado criminal defense lawyers practicing Colorado domestic violence defense.. that domestic violence is on the increase. What is more significant to me is the absence of resources available to assist married and unmarried people through this stressful period.

I have seen little or no public education that is dedicated to supporting families, little in the way of church based services that are being made available, and even little internal efforts on the part of extended families to reach out and assist couples struggling with the stress of the financial downturn.

The reason? The intensely private nature of relationships and the fear of the appearance of interfering in the intimate relationships of others.

I advocate for preventative - proactive measures- not just reactive or emergency based triage type services. Battered women's shelters should be a last resort for women who find themselves in these difficult circumstances.

My strong suggestion -- reach out to your family and try a form of intervention ... it may save a family from the destruction of a domestic violence charge. H. Michael. Steiberg

Posted by H. Michael Steinberg | | Email This Post

December 11, 2010

DA Stopped From Retrying Defendant After Mistrial Granted - The Protection of Double Jeopardy

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In a recent decision by the Colorado Court of Appeals, the DA was prevented from retrying a case when he sought and was granted a mistrial ...

Here are the facts:

The defendant was charged in a Colorado Domestic Violence case with assaulting his estranged wife and one of her friends, with threatening the wife, and with disturbing the peace. The trial court declared a mistrial during cross-examination of an alleged victim in the misdemeanor assault case against the Defendant who then filed an immediate appeal stating that a retrial would violate his rights against double jeopardy.

The trial court denied the moton to dismiss concluded that there was manifest necessity for the mistrial because the cross-examination question improperly provoked the jury into believing it was determining issues of immigration and domestic relations and because the risk of unfair prejudice to the prosecution could not be corrected just by instructing the jury to ignore the question.

The Colorado Supreme Court found that the defendant not only properly raised his double jeopardy challenge to retrial but that the defendant had a right, possibly of constitutional magnitude to inquire into the wife's understanding of the immigration consequences of a conviction.

H. Michael's Take

In this case the Defendant's theory of defense was that his estranged wife had fabricated the claims to gain leverage in a contentious custody battle involving the couple's infant son. At the beginning and again at the end of opening statement, defense counsel told the jury of the defense contention that the wife would "do anything," including making false claims against defendant, to keep custody.

The wife was the first witness against defendant. Defense counsel began cross-examination by asking several questions about the then-ongoing marriage dissolution and child custody proceedings. The prosecution objected - stating "we're here on a criminal trial not on the divorce case" - but the court overruled the objection and allowed this line of questioning to continue. While allowing defense counsel "a little bit of latitude" in this area, the court did urge counsel to "cut to the chase."

Further questioning established that the wife had taken the couple's son when she left defendant (before the nightclub incident) and the courts were deciding custody. Two questions followed:

Q. You know that [defendant] is from Africa?

A. Yes.

Q. You know that if he is found guilty of this he'll be deported? The prosecution objected before the second question was answered, stating it was "completely improper to bring that up in this proceeding." The court promptly ordered a recess.

Outside the jury's presence, the prosecutor moved for a mistrial. He argued the jury had been "irrevocably tainted" by questioning that was "a ploy to invoke sympathy for the defendant" and amounted to "probably the worst violation [he had] ever seen." Defense counsel responded that the question went to the "heart of our defense" and defendant was constitutionally entitled to ask it. Counseltold the court that she had spoken with defendant's immigration attorney, that this assault conviction would lead to deportation, and that the wife "knows all of that."

When the DA moved for a mistrial, the defendant objected -- the mistrial was granted and the defendant immediatley appealed.... and WON.

The importance of this case is that the defendant should be allowed using cross examination to expose the possible motivations for a report odf domestic violence to the authorities, When the judge shut that down and then granted a mistrial -- he was dead wrong. The Colorado Supreme Court went even further in it's analysis:

Criminal defendants have a right, of constitutional magnitude, to engage in "'otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness.'"

Posted by H. Michael Steinberg | | Email This Post

December 7, 2010

Utah Sex Crimes Law Finds Rights of Law Enforcement Greater Than Privacy Interests

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Divulge Online IDs, Court Tells Utah Sex Offenders

The Story:

(CN) - The 10th Circuit upheld a Utah law that forces sex offenders to hand over names they use to send e-mails and instant messages.

A Utah resident, convicted by the military for sex crimes against a minor, filed suit anonymously to contest the law, which requires sex offenders to identify all "Internet identifiers," defined as "any electronic mail, chat, instant messenger, social networking or similar name used for Internet communication."

Utah amended the law, which originally required sex offenders to disclose their passwords, after a federal judge ruled that provision infringed on Doe's First Amendment rights.

The 10th Circuit in Denver, which issued its opinion in October but recently corrected the filing, ruled that law enforcement investigations into sex-related crimes trumped the plaintiff's claims under the First Amendment because of a "compelling interest."

Judge Monroe McKay, writing for the three-judge panel, noted that sex offenders were still allowed a degree of online anonymity since law enforcement limits its use of the information to criminal investigations.

"Although there is a possibility that a government agent would have access to Mr. Doe's identity at the time he was speaking - as, for example, if an undercover sought him out in a chat room in the course of investigating a sex crime - we are not persuaded that this possibility imposes a constitutionally improper burden on speech," McKay said.

The judge also rejected claims that the law constitutes an illegal search and seizure barred by the Fourth Amendment or the ex post facto clause of the Constitution.

"Looking closely at Mr. Doe's argument on this issue, it seems clear that his contentions depend entirely upon his argument that the Utah statute would allow impermissible public disclosure of his internet identifiers, thereby destroying his right to anonymous speech," McKay wrote. "However, because we conclude that Utah's registration statute does not violate the First Amendment, we hold that the effect of the new disclosure requirements is not substantial enough.

H.Michael's Take

Often - in the hysteria that marks allegations of sex crimes - no matter how minor -individual rights are eroded. I have represented many people - young and old -who have become caught up in the dominance of the porn industry on the interent. These people most often have no criminal history - are naive in the ways of the world and the internet and often become wholly enveloped in pronographic sites and chat rooms. They are no match for the seduction of the "net"and after they have been "stung" by law enforcement -- their lives are marred forever by their identification as sex offenders.

These people need our help - not our condemnation. This Utah law - while a small step in a much larger "movement" signifies the rebalancing of the rights of those who bear this lable - some - for the rest of their lives. It is a step in the wrong direction in my opinion - as each individual should be viewed in the context of their lives...

Posted by H. Michael Steinberg | | Email This Post

December 3, 2010

The High Cost of Too Much Cooperation - "Helpful Witnesses"

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Federal authorities on Thursday dropped their prosecution of a southern California man charged with two felonies for modifying Xbox 360 consoles, following a severe berating by a judge and an admission they made procedural errors, Wired.com reported.

The criminal trial against 28-year-old Matthew Crippen was the first to test how anti-circumvention provisions of the Digital Millennium Copyright Act applied to game consoles. The 1998 law prohibits the hacking of technology intended to prevent access to copyrighted material. Matthew Crippen of Anaheim, California, was arrested in 2009 [1] on charges related to modifications he made to the optical disc drives of two Microsoft consoles

According to Wired.com, which was providing gavel-to-gavel coverage of the trial, opening statements were delayed on Wednesday after US District Judge Philip Gutierrez blasted prosecutors for a series of missteps. They included alleged unlawful behavior by government witness Tony Rosario, who secretly videotaped Crippen as he accepted $60 to modify an Xbox. The judge also lashed out at prosecutors' proposed jury instructions that he said were harmful to the defense.

"I really don't understand what we're doing here," Gutierrez was quoted as telling prosecutors.

The government responded by asking for a recess, but later pressed on with the case.

On Thursday, Rosario, an undercover agent for the Entertainment Software Association, testified that during his 2008 meeting with Crippen, the hacker inserted a pirated video game into the modified console, a key detail in the prosecution that had never been aired before. After defense attorneys objected, the prosecution admitted they first became aware of the new claim on Sunday but had failed to alert Crippen's defense team.

Assistant US Attorney Allen Chiu then agreed to dismiss the charges in light of the omission and "based on fairness," Wired.com reported.


H.Michael's Take

The federal criminal justice system relies, at times, on "paid for" testimony of witnesses with little or no credibility. Despite the best efforts of - what I consider to be - ethical prosecutors -- the culture of "cooperation" will lead to witnesses wanting to be so helpful they will slant their testimony or even intentionally "filll gaps" in the DA's or US Attorney's case that are obvious weaknesses. Even veteran federal agents and seasoned detectives find this somewhat tempting.

The price - of course - is damage to the entire system of justice and dismisal of the case based on "justice." Here the US prosecutor had no choice and did the ethical thing.

Posted by H. Michael Steinberg | | Email This Post

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