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November 2011 Archives

November 29, 2011

Colorado Criminal Law: Even Where the Juvenile - Defendant Wins his Case - Petitions to Seal (Expunge) May Be Denied Under Colorado's Law's Balancing Test

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In the recent juvenile case of F.M. v. The People of the State of Colorado, the COLORADO COURT OF APPEALS upheld a Colorado Adams County District Court Judge's decision to deny F.M.'s Petition to Seal DESPITE A NOT GUILTY VERDICT

These are the Undisputed Facts in the Case

In the underlying criminal case, F.M. was charged with four counts of felony menacing after he mailed an envelope to his supervisor containing flour. When it spilled out, a coworker called the police, who summoned a hazmat team. F.M. was acquitted.

In 2006, F.M. brought the prior action to seal the arrest and criminal records concerning these charges, based on his acquittal. The prosecution objected. Applying the statutory balancing test, the district court held that the public interest outweighed F.M.'s privacy interest, declined to seal the records, and dismissed the action

Statutory Interpretation

Because F.M., a juvenile, was acquitted - that is - found NOT GUILTY - of the underlying charges, he could seek to seal related arrest and criminal records. § 24-72- 308(1)(a)(I), C.R.S. 2011.

The district court may do so if it finds that either harm to the petitioner's privacy or the danger of unwarranted adverse consequences to the petitioner outweighs the public interest in leaving the records unsealed. § 24-72-308(1)(c), C.R.S. 2011.

Section 24-72-308 is comprehensive and the statutory remedies are exclusive for those persons whose records come within its purview.

Colorado's Record Sealing Law 24-72-308(1)(c), Provides:

24-72-308. Sealing of arrest and criminal records other than convictions.

(1) (c) After the hearing described in subparagraph (II) of paragraph (b) of this subsection (1) is conducted and if the court finds that the harm to the privacy of the petitioner or dangers of unwarranted adverse consequences to the petitioner outweigh the public interest in retaining the records, the court may order such records, except basic identification information, to be sealed. Any order entered pursuant to this paragraph (c) shall be directed to every custodian who may have custody of any part of the arrest and criminal records information which is the subject of the order. Whenever a court enters an order sealing criminal records pursuant to this paragraph (c), the petitioner shall provide the Colorado bureau of investigation and every custodian of such records with a copy of such order. The

What is critical here - is the language:

(1) (c) After the hearing described in subparagraph (II) of paragraph (b) of this subsection (1) is conducted and if the court finds that the harm to the privacy of the petitioner or dangers of unwarranted adverse consequences to the petitioner outweigh the public interest in retaining the records, the court may order such records, except basic identification information, to be sealed
.

H. Michael's Take

What is to be "taken away" from this case is the important point that petitions to seal and expungements are not guaranteed. If the Court - at the hearing on the Petition to Seal - does not find that the harm to the privacy of the petitioner or dangers of unwarranted adverse consequences to the petitioner DO NOT outweigh the public interest in retaining the records, the court may order such records to be retained as PUBLIC.

Thus - be warned - even if the Defendant is found NOT GUILTY at trial - the case may remain on his - her record forever. Lawyers need to take the Court's balancing test seriously - and they need to prepare for the final hearing - and be ready to persuade the Judge to rule in the Petitioner's favor.

Posted by H. Michael Steinberg | | Email This Post

November 29, 2011

Colorado Hate Crimes on The Decline - But Not For the Reasons You May Think

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The Denver Post recently reported that hate crimes in Colorado fell almost 30 percent between 2009 and 2010.

The national report released by the FBI on Monday found that Colorado law-enforcement agencies reported 154 hate crimes last year, down from 218 a year earlier. In 2008, 164 bias-motivated offenses were logged across the state.

H. Michael's Take

Any criminal defense lawyer will tell you that Colorado's hate crime statute is used more and more rarely by prosecutors. As explained on my primary website:

How Often are There Allegations of Bias Motivated Crime?

Hate crimes are classified as those motivated by biases based on race, religion, sexual orientation, ethnicity, national origin or disability.As a practical matter, the hate crime enhancement is used very rarely.

Obviously, even the connotation of a "hate crime" evokes emotion, passion, and politics, and usually both sides of a criminal matter want to avoid these factors if possible. If you get caught up in a prosecution and receive notice of a sentencing enhancement under these laws, make sure your lawyer understands these laws.

Posted by H. Michael Steinberg | | Email This Post

November 23, 2011

Colorado DA Nets Another Sexting Suspect for Internet Luring

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ELLICOTT, COLO.is a very small town in Colorado on the Eastern Plains just east of Colorado Springs.

In that small jurisdiction a School District board member has just been arrested for allegedly sexting a 14-year-old boy.

Thirty-seven-year-old Stefanie Dickinson was arrested Sunday for Internet Luring of a Child, a class four felony.

As the Schools Board's treasurer she had access to the alleged victim in the case a 14-year-old boy, who attends Ellicott High School

The young boy allegedly began receiving text messages from Dickinson sometime in August after returning from a trip with her and her family to Lake Meridith in Ordway

The boy's sister found the texts while he was at football practice. It said many of them are "sexual in nature" and reference "oral sex" among other things.

One reads "I will work on not being scared so something can happen," while another says "You can't tell anyone about this at all because I could lose my family."

H. Michael's Take

While there is no Colorado specific crime titled Sexting - the crimes that can be charged in a case like this are very serious. One possibility is the Colorado Sex Offender Crime of Sexual Exploitation of a Child. Another is Internet Luring - a form of solicitation of a minor to engage in sex. Just the attempt is a very serious felony in Colorado.

The increasing attention to Internet and Electronic Based communication in our modern world - has led to the use of these resources to engage in the more recognizable sex offender crimes that have always existed. Law enforcement's resources to track and to fullly investigate and charge these crimes is on the rise in terms of the gathering of intelligence - organization and pooling of Federal and State funds and and the sharing of technology

Posted by H. Michael Steinberg | | Email This Post

November 16, 2011

Joe Paterno, Penn State and The Colorado Mandatory Reporting of Child Abuse Laws

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I am sure by this time - you have read about the failure of individuals in the Penn State hierarchy to report suspected child abuse allegedly occurring on the Penn State campus. You may be wondering what Colorado Law requires in the way of Mandatory Reporters of Child Abuse.

Under most state laws - there is NO REQUIREMENT that an individual report a crime - UNDER ANY AND ALL CIRCUMSTANCES. This general rule is the case with certain critical excpetions.

In Colorado certain legal relationships require - upon suspecting an act of child abuse - that certain individuals report crimes against children.

I have written an article:

Here is the link:

Colorado Law Compelling Reporting of Suspected Child Abuse

....that addresses who these mandatory reporters are... They are such professionals as therapists, police, teachers, nurses, doctors - and others who have a legal duty to protect children.

Here is a complete list of Colorado Mandatory Reporters

physician or surgeon, including a physician in training;
. child health associate;
. medical examiner or coroner;
. dentist;
. osteopath;
. optometrist;
. chiropractor;
. chiropodist or podiatrist;
. registered nurse or licensed practical nurse;
. hospital personnel engaged in the admission, care or treatment of patients;
. Christian science practitioner;
. public or private school official or employee;
. social worker or worker in a family care home or child care center;
. mental health professional;
. dental hygienist;
. psychologist; physical therapist;
. veterinarian;
. peace officer;
. pharmacist;
. commercial film and photographic print processor;
. firefighter;
. victim's advocate;
. licensed professional counselor;
. licensed marriage and family therapists;
. unlicensed psychotherapists;
. clergy member;
. registered dietician;
. worker in the Colorado Department of Human Services;
. juvenile parole and probation officers;
. child and family investigators;
. officers and agents of the state bureau of animal protection, and animal control officers.

The failure to report a suspected act of child abuse is a crime in Colorado -- but only a misdemeanor.

I end with the question -- just what is child abuse?

Here is the law:

Continue reading "Joe Paterno, Penn State and The Colorado Mandatory Reporting of Child Abuse Laws" »

Posted by H. Michael Steinberg | | Email This Post

November 8, 2011

Department of Education Opens the Flood Gates for Sexual Harassment Claims

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In a move that can only be described as a Herman Cain Blowback, the United States Department of Education's new mandate directs all colleges receiving federal funds to LOWER THE STANDARD OF PROOF for allegations of sexual harasment to a new lower burden of proof. The Department of Education directive mandates that all colleges receiving federal funds change the usual "clear and convincing" standard to "preponderance of evidence."

This difference is a major change. The new lower standard requires only that 50.01 percent of the evidence be in favor of an offense having happened in order to reach a conviction.

In addition the Federal Violence Against Women Act, has a new proposed provision that proposes to turn the Department of Education directive into statutory law.

It really is strange for a bill to delegate to a federal agency the power to lower due process protections and standards of proof. I believe that is unprecedented," says Hans Bader of the Competitive Enterprise Institute.

This change has been described as having the impact of "turning campus disciplinary committees into veritable Kangaroo Courts, thus increasing the number of false allegations by leaps and bounds," warns Philip Cook.

H. Michael's Take

This attack on the civil rights of the accused is unfathomable. These "he said - she said" allegations should be held to the higher standard of evidence. We, as a society, should fight against the casual destruction of a person's life based on the most minimal of claims.

Posted by H. Michael Steinberg | | Email This Post

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