Recently in Colorado Sex Offender Laws Category

March 17, 2013

False Sex Crime Allegations Leads To Case Dismissed - What Now?

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By Colorado Sex Crimes Defense Lawyer - Attorney - H. Michael Steinberg

A recent case in New York City - clearly points out what can go wrong in a felony sex crime prosecution.

Darrell Dula - 26 - was one of four men - charged in a NY sexual assault case. His case was dismissed after an over zealous prosecutor was found to have violated New York's criminal procedural laws involving basic fairness.

The man filed suit against New York City and the Brooklyn district attorney's office for:

1. Malicious prosecution

2. Defamation

and

3. False imprisonment.

Recanting Alleged Victim - Evidence Was Withheld - Hidden From The Defense

Darrell Dula, unable to post bond, - was continuously jailed for 10 months on a rape charge that never went to trial and was dropped, is now suing prosecutors.

Why? - because the alleged victim said she lied about Dula's involvement and that information was withheld from the criminal defense attorney in violation of the defendant's rights... among those rights - the right to disclosure of ALL of the evidence - not just evidence the DA decided to release.

The victim told the investigating officer, "Can't a ho change her ways?" - Dula's lawyer, said, that "We believe that the victim's account against our client was incredible from Day 1. The whole thing just stinks."

Huge Headlines At Indictment - But A Quiet Dismissal

The case was highly publicized in June of 2011 at a news conference which announced the indictments of Dula and three co-defendants on charges of rape, sex trafficking and compelling prostitution over the course of a decade.

The case was dismissed when the assistant district attorney, Abbie Greenberger, quit her job rebelling against the kind of pressure every prosecutor is under every day... the pressure to prosecute - especially high profile cases.

In this case the defendants were initially indicted with much fanfare by grand jury. Later - the testimony before the grand jury was contradicted by the an ongoing DA based "re-investigation." -

It is alleged that the Brooklyn DA's office sat on a "rape recantation" for nearly a year.

The allegations in the civil lawsuit state that "A day after accusing Jawara Brockett and Dula, however, the girl, then 22-years-old, went back to the police, and told detectives she was simply a prostitute for 5 years and made up the allegations against Brockett and Dula."

Failure To Turn Over Police Reports - Exculpatory Statements - Brady Material

Failure to turn over exculpatory evidence - so called Brady evidence - or evidence pointing to innocence is not only an ethical violation - it is a violation that cuts to the foundations of our criminal justice system. Here, the Brooklyn DA's Office from the start, failed to turn over police records - critical medical records - both of which demonstrated a history of "mental illness and amnesia."

It was not until April 2012 - almost a year later - that the alleged victim's recantation was turned over to the criminal defense lawyer.

"The girl indicated the night of the alleged rape that she had made up the story," said Dula's lawyer. "She indicated that she was in a consensual relationship, as opposed to being the victim of sex trafficking."

False Rape Allegations - The Destruction of A Man's Life

Consistent with a prosecutors duty to reinvestigate a serious felony case where credibility questions have been raised - the DA ultimately recognized their duty - determined that the case demands dismissal - and dismissed the case "in the interests of justice," but NOT BEFORE destroying at least one man's life.

A version of this article appeared in print on October 10, 2012, on page A20 of the New York edition with the headline: Ex-Defendant Sues Prosecutor After Rape Charge Is Dropped.


February 14, 2013

2013 Colorado Appellate Courts Interpret Mandatory Sentencing Crime of Violence - Sex Crime Sentencing Laws In Most Punishing Way

Colorado Sex Crimes Criminal Defense Lawyer - H. Michael Steinberg

In a recent decision providing an opportunity for the Colorado Court of Appeals to mitigate the impact of the 1998 Colorado Sex Offender Sentencing and Lifetime Supervision Act - the Colorado Appellate courts did the opposite.

The Court was faced with a statutory conflict between the Colorado Violent Crime Sentencing Statute and the Colorado Sex Offender Sentencing and Lifetime Supervision Act in sentencing individuals to Lifetime Indeterminate sentences.

The Colorado Violent Crime Sentencing Provision Within The Sex Offender Sentencing and Lifetime Supervisionct

Section 18-3-405(2)(d) provides that sex assault on a child is a class three felony if the offense is committed as part of a pattern of sexual abuse. Another law - Section 18-3-405(3) provides that if a defendant is convicted of such an offense, "the court shall sentence the defendant in accordance with the provisions of section 18-1.3- 406." This law - Section 18-1.3-406 - is entitled "Mandatory sentences for violent crimes" and section (1)(a) provides that a person convicted of a crime of violence shall be sentenced for a term of incarceration of at least the midpoint in, but not more than twice the maximum of, the presumptive range for the offense.

BUT The Colorado Sex Offender Sentencing Provision contains this statute...

Subsection (1)(b) provides:

Notwithstanding the provisions of paragraph (a) of this subsection (1), any person convicted of a sex offense . . . that constitutes a crime of violence shall be sentenced to the department of corrections for an indeterminate term of incarceration of at least the midpoint in the presumptive range specified in section 18-1.3-401(1)(a)(V)(A) up to a maximum of the person's natural life, as provided in section 18-1.3-1004(1).

The Defendant unsuccessfully argued that the District Attorney - to sentence in the aggravated range - had to allege "aggravating circumstances" to receive a sentence in that range of years.

He argued that " a bottom end in excess of the presumptive maximum is not authorized by section 18-1.3-406(1)(b) without a finding of aggravating circumstances under section 18- 1.3-401(8), C.R.S. 2012."

The DA argued that subsection (1)(b) authorizes a bottom end under the same standard defined by subsection (1)(a) for non-sex offenses -- between the midpoint in, and twice the maximum of, the presumptive range.

Court Traces The Evolution of Sex Offender Sentencing and Lifetime Supervision
Looking at the Legislative History of the Law

The Court agreed with the DA's position:

" Before November 1998, a sex offense that was also a crime of violence was subject to the same sentencing range as any other crime of violence. At that time, crime of violence sentencing was addressed by former section 16-11-309. Subsection (1)(a) of the former statute was substantially similar to the current section 18- 1.3-406(1)(a). The statute did not differentiate between crimes of violence that involved sex offenses and those that did not.."

The Court further found that..

" the Act's sponsor "emphasized three separate times that the Act was not intended to change the sentencing guidelines already in place under Colorado law" and "would simply change a court's ability to monitor sex offenders by subjecting them to lifetime supervision in the form of probation and parole"

The Court then shut the door on the defendant and decided that the "bottom end of an indeterminate sentence for a sex offense that is also a crime of violence is intended to be imposed in the same manner and within the same strictures as a determinate sentence prescribed for any crime of violence -- specifically, between the midpoint in, and twice the maximum of, the presumptive range for the applicable felony class."

Therefore A DA need NOT establish "aggravating circumstances" to obtain a sentence above the maximum of the presumptive range for a sex offense that is a crime of violence.

H. Michael's Take

Faced with a statutory ambiguity - given another opportunity to temper a Draconian law - the 1998 Colorado Sex Offender Sentencing and Lifetime Supervision Act - Given the chance for a measure of hope - another measure to possibly return discretion back to the place it belongs - - the elected judges of Colorado - the courts again are compelled to remove that possibility of compassion and mercy and once again a measure of hope is destroyed......

February 9, 2012

Accused In Colorado Sex Crime Case Acquitted Based In Large Part On Poor Police Investigation

Former Greeley police officer Daniel Shepherd was found not guilty by a Colorado jury on February 8, 2012.

What makes this case so important - is that the jury looked at the "he said - she said" nature of the allegations - found both sides had lied or covered up - so they did what jurys are supposed to do - they focused on the absence of forensic evidence that would have pointed the way to the truth. This time - because of the incompetence of the police - there was none

In the words of one juror - who clearly got it right:

All we had to go on was their testimony," Sanchez said. "And we couldn't believe either of their testimonies, with her inconsistencies and previous claims, and he lied throughout most of the (investigation).

" But our job is guilty versus not guilty, not guilty versus innocent."

According to the Greeley Tribune who tracked the story - the investigation leading to the trial and acquittal - took eleven months "Eleven months of hell."

The alleged victim had accused Shepard of unlawful sexual contact of a then 19-year-old woman, after he ordered her to leave a party March 13, 2011.

H. Michael's Take

The jury system worked. When left with pure contradictory testimony - the jury placed the burden of proof squarely where it belonged - on the state of Colorado

As one juror put it "All we had to go on was their testimony,...and we couldn't believe either of their testimonies, with her inconsistencies and previous claims, and he lied throughout most of the (investigation)."

Evidence that could have conclusively proven the innocence of the accused - was never preserved - the alleged victim's clothing was never collected and tested - DNA from and other possible evidence that could have been extracted from a SANE examination and rape kit - was never obtained.

The Greeley police department, in not collecting the relevant evidence - denied the accused the benefit of evidence that could have led the District Attorney to dismiss the charges.

"Clearly, there were errors made at the start of the case, and that made the detectives work harder," said the Greeley Police Department . "This is one of those investigations where I'd say, while very good work was done, it certainly wasn't perfect."

This is the kind of case that should be studied by all Colorado Criminal Defense Lawyers.

This is the kind of case that restores one's faith in the criminal justice system and in the good common sense of the jury - the great equalizer.

December 12, 2011

Colorado Criminal Sex Crimes Law - 2011 Changes to Sex Offenders Registration Laws - House Bill 11-1278


A new Colorado Law - helps Sex Offenders Understand the Requirements of Sex Offender Registration.

The 2011 bill makes a number of modifications to the requirements for registering as a sex offender, including the following:

• county sheriffs are required to submit registration information for individuals who are required to register as sex offenders and are held for more than five days or are sentenced to a term of imprisonment in a county jail;

• a defendant who is convicted of an offense in a tribal or territorial jurisdiction that requires registration as a sex offender must register as a sex offender in Colorado;

• the fee that may be charged by law enforcement agencies for registration services is capped at $25 for annual and quarterly registration and may not be charged for updates to registration information;

• if an offender is unable to pay the fee at the time of registration, the fee debt may be sent into collections;

|• an offender who is required to register must do so within five business days of his or her birthday;

• an offender who is required to register and who moves to a new jurisdiction is required to register in the new jurisdiction and cancel registration in the old jurisdiction; and

• the local law enforcement agency in the new jurisdiction is required to notify the local law enforcement agency in the old jurisdiction of the cancellation of the registration.

Juvenile Sex Offender Cases

Under current law an adult offender who successfully completes a deferred sentence or a juvenile who discharges his or her sentence may petition the court to discontinue registration as a sex offender. The bill would require the court to automatically consider whether to discontinue the registration requirement when deciding whether to dismiss the charges in a deferred judgment or when discharging a juvenile's sentence.

For a juvenile on parole, the Division of Youth Corrections (DYC) in the Department of Human Services is required to petition on behalf of the juvenile for a discontinuation of the registration requirement.

Current law requires the use of intensive supervised probation and parole for offenders convicted of failure to register as a sex offender. The bill allows the court and parole board discretion as to the use of intensive supervision programs. The county in which an offender completed his or her last registration is added as a proper venue for prosecuting offenses of failure to register as a sex offender.

The bill creates an affirmative defense for failing to register as a sex offender if uncontrollable circumstances prevented the registration; the circumstances were not caused by the offender; and the offender registered as soon as the circumstances ceased to exist.

The bill also adds second degree kidnapping (when the person kidnapped is the victim of a sexual offense) to the definition of unlawful sexual behavior.

The 2011 Sex Offender Registration bill gives a five day window for registration surrounding an offender's birthday, and law enforcement was given the responsibility for de registration. Efforts will be made in 2012 to correct a drafting oversight that failed to provide the same five day grace period for those required to register quarterly

November 16, 2011

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

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" »

November 8, 2011

Department of Education Opens the Flood Gates for Sexual Harassment Claims


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.

October 5, 2011

A Recent - 2011 Colorado Case - Points Up the Lack of Analysis in the Sentencing of Colorado's Sex Crimes Cases


An article - written by Monte Whaley - appearing in the Denver Post in August of 2011 entitled - "Sentencing disparities in child-sex-assault cases point to double standard" confronts the insanity of Colorado's Sex Offender Sentencing Laws

The article began with this statement "Women in Colorado convicted of sexually assaulting a child in their care are far less likely to go to prison than men sentenced for the same crime."

The Post did a comprehensive analysis of publicly available sentencing data provided by the Colorado Judicial Branch.

The data demonstrated that "of the 2,128 men convicted of sexual assault on a child by a person in a position of trust from 2006 through 2010, more than 50 percent were sent to prison."

However, "of the 79 women convicted of the same felony offense, 38 percent went to prison. A little more than 39 percent of female defendants in that same period 31were put on intensive supervised probation. Less than 35 percent of men were given the same sentence."

Analysis Focused on male and female teachers, coaches, babysitters and others who are considered to be in a sexual assault on a child and who are in a "position of trust."

With women, the victim is often a young or teen male in her charge, and too often the abuse is seen as less traumatic and almost a badge of honor for the boy, said forensic psychologist Katherine Ramsland.

Several studies uncovered by the Post demonstrate that males molested by female caregivers run a huge risk of becoming sex offenders in adulthood... and that women who molest boys are most likely victims of abuse themselves.

Woman-on- boy crimes are not reported at all, due in part to the media.

Prosecutors say they focus on recividism rates:

All things being equal including prior history - prosecutors focus on the likelihood of recidivism.

The Post story referenced a 2005 study shows that females convicted of a sexual offense repeat the same offense only about 1 percent of the time. The recidivism rate for male sex offenders is 13.4 percent.

Larimer County DA Larry Abrahamson points to the criteria that DA's view as important.

"You look at the charges, you look at the level of threat that individual is causing the community and if that person is subjecting the victim to pretty significant trauma. You have to look at all of those factors," Abrahamson said.

The Colorado SOMB ( Sex Offender Management Board ) psycho-sexual evaluation is critical here.

In Colorado - in negotiating this deadly road - the Colorado criminal defense attorney - attempting to defend a clear case of sexual assault on a child - will refer their clients to a State Certified Colorado Sex Offender (SOMB Approved) evaluator. The purpose of this intense and difficult evaluation is to help determine the true "risk" a sex offender presents to the community. The report - generated by this evaluation - have a great bearing on the negotiating process.

"Those responses can determine what kind of punishment level you are seeking," Abrahamson said.

H. Michael's Take

All Colorado criminal defense lawyers who defend these cases are locked into the draconian Colorado sex offender laws passed in the late 1990's.

These laws, opposed by many - if not most - of Colorado District Court judges - take away the right of a judge to utiliize his/her experience and given authority to determine a sentence commensurate with the nature of the crime. These laws lock judges into a "one size fits all" method of pursuing and convicting sex offenders, both men and women.

August 26, 2011

Colorado Sex Offender"Indeteminate" Sentencing System Releases Few Inmates Once Sentenced to Prison


Every year, the Colorado Sex Offender Management Board (SOMB) is tasked with the responsibility of reporting on the success or failure of the draconian sentencing structure the Colorado State Legislature Created in 1998.

According to the Colorado Sex Offender Management Board's latest report, 1,651 people had been handed indeterminate "life sentences" sentences since the change in state law in 1999.

Of the 1,651, only 66 - or 4 percent - have been paroled. That's correct, 4%.court ordered discharge.

More specifically - the brakdown is -

...of the 1,651 offenders sentenced to prison under the lifetime supervision provisions for sex offenses, 117 have discharged their sentence through June 30, 2010:

• 49 offenders released by court order;
• 36 offenders released to probation;
• 24 offenders died;
• 4 offenders released on an appeal bond;
• 3 offenders had their sentence amended then released per Martin Cooper law; and
• 1 offender released from the Youthful Offender System (YOS).

The reason for the refusal to parole is that it is just not popular for the Colorado Parole Board - the decisionmakers in granting parole to these offenders,- to release into society someone who has been sentenced to the Colorado Department of Corrections for life.

Even Judge's - if asked privaitely - will tell you that the system is flawed and destructive as was the case in the recent sentencing of a Colorado Wrestling Coach convicted by a jury of having relations with a student.

Clearly punishment was expected in such a case, but a life sentence, with only a 4% chance of parole - is not contemplated in a just society.


Even Inmates Who Have Paroled Have Not Coe Close To DIscharhging Their Parole

According to CRS 18-1.3-1006, the period of parole for any sex offender convicted of a class 4 felony shall be an indeterminate term of at least ten years and a maximum of the remainder of the sex offender's natural life. The period of parole for any sex offender convicted of a class 2 or 3 felony shall be an indeterminate term of at least twenty years and a maximum of the remainder of the sex offender's natural life.

Therefore, no discharge hearings have been held to date and are not expected for several more years.

Taking Stock of the Hysteria

It is unclear whether the Colorado State Legislature will take a more reasoned look at this incredibly harsh and non-rational approach to this area -- the No-Cure Model is flawed and follows the well known Colorado knee jerk reaction to the hysteria that follows these cases in the media, - but I have hope that a more rational system is not too far off - I have already seen the Courts pay more attention to the ongoing research which gives me hope for the future. A future that leaves a life sentence for those individuals who committ captial crimes. H. Michael Steinberg

August 13, 2011

Colorado State Jefferson County District Attorney Scott Storey Takes A Reasoned Approach to the Crime of Sexting


In a recent press release on the 1st Judicial District Website in Colorado - Scott Storey - the elected DA - approaches the increasing problem of Sexting with a reasoned eye - recognizing that which most experts in the field understand - it is a matter of "growing up" and "coming of age" .. that leads to an understanding of the proper boundaries between the genders. It is not a sex offender crime in most cases.

In the following reprinted web page - DA Storey explains his reasoning.

He is to be commended for his common sense and not knee jerk response - as is often the case in this area.

Sexting Balancing the Law, Teens and Technology

The District Attorney's Office has developed a new approach to "Sexting." This precarious pastime, a growing phenomenon with young people, is sending sexually explicit photos and video of themselves over the Internet. The combination of teenagers' age-old sexual curiosity, bad judgment and their love of modern electronic data sharing can have devastating consequences.

In March 2009, a Cincinnati teen committed suicide after sexually explicit photos she sent to her boyfriend were emailed to others after they broke up. The teen was humiliated and harassed at school. She was miserable and became afraid to even go to school. In desperation, she took her own life.

"It is critical for parents to know what "Sexting" is and just how pervasive it is," says District Attorney Scott Storey. "We all have to work together as a community to stop this dangerous behavior."

One in five teens admits to taking nude or semi-nude photos of themselves and sending them to someone or posting them online. None of these teens ever consider the possible repercussions. Those photos are not retrievable from cyberspace. They never think that the trusted friend or boyfriend to whom the explicit photos were sent or their "friends" on their social networking site would ever pass them on.

Teens also never consider the fact that Sexting is illegal if the photographed person is under 18 years of age. It is illegal to possess the naked pictures, and an even more serious offense, to send them or post them online.

The District Attorney's Office has tools and tips for parents on their website hoping to prevent Sexting.

The DA in Jefferson and Gilpin Counties has developed a protocol to use in some of these cases as they are presented by law enforcement. "Often the conduct is more of a boundary problem than a sex offense, but we have to be the ones to make that determination," says Storey.

"We developed a special curriculum to address teenage boundary issues without charging the teen with a sex offense. But make no mistake, having naked pictures of any teen under 18 on your cell phone or MySpace page is a crime which can result in serious consequences including sex offender registration."

We strongly encourage parents to interact with their kids and their online activities. Supervising your kids in cyberspace is not snooping or invading their privacy, its just good parenting.

July 31, 2011

The Harsh Reality of Colorado's Sex Offender Laws Hit Hard - A Colorado High School Wrestling Coach Receives Life In Prison

On Monday, July 25, 2011 A Broomfield County Colorado Wrestling Coach was Sentenced to life in prison after a jury trial which ended in convictions of for Sexual Assault On A Child by a Person in a Position in Trust and Sexual Assault on a child - Pattern of Abuse (more than two incidents).

The verdict related to his sexual assault of a 15-year-old high school girl who was manager of his wresting team. Prosecutors presented evidence at trial that Masse had sex with the girl on several occasions and sent as many as 8,900 text messages to the girl - many of them sexually explicit - between December 2008 and February 2009.

Judge Thomas Ensor, the presiding judge over the May 2011 trial - was compelled by Colorado's mandatory life in prison laws - to sentence Masse to 10 years to life with 20 years' mandatory parole for the first charge, and six years with 20 years' parole for a second offense

At the sentencing hearing Judge Ensor said " This is like a Greek tragedy," "You had everything going for you. But you have a fatal flaw. You found the weakest in the herd, separated her out, groomed her, made her comfortable and then ... you were able to complete what you wanted to do."

Travis Masse, the convicted coach, was a well-respected, award-winning high school wrestling coach who led his young athletes to the Class 4A state wrestling championship in 2008-09. The flaw Judge Ensor spoke of was Masse's predilection for exploiting young women.

Travis Masse, after the verdict did THEN take a plea bargain in a second case - to unlawful sexual contact coercing a child involving Masse's texts and request for nude photos from another female high school student. He was sentenced to two years with six years of parole for that offense, to be served concurrent with the other sentences.

H. Michael's Take:

It is impossible to know whether a plea bargain that could have avoided the life sentences imposed on this man prior to his decision to take the case to trial. It is also impossible to know why he believed the jury would possibly believe the young victim was not telling the truth to the jury at the trial. This case may serve as a warning to all who face these charges and who throw caution to the wind and take these charges to trial.

This author will - over the next several weeks - try to learn more of the "back story" of this case as to what - if any - plea bargain may have been offered by the Broomfield County District Attorney's office. If none was offered - it may be more clear why the case was tried to a jury.

June 29, 2011

Colorado Sex Crimes Possession of Child Pornography Arrests Increas

In a recent article in the Denver Post - the author brings to light the substantial increase in Colorado Child Pornography case prosecutions.

The number of Colorado prosecutions involving the possession and trading of child
pornography more than quadrupled from 36 cases filed in 2001 to 159 in 2009. While the number slightly decreased in 2010 - the 2011 number of case filings is on the increase.

Child pornography is predominantly found in multiple formats including print media, videotape, film, CD-ROM, or DVD. It is transmitted on various platforms within the Internet including newsgroups, Internet Relay Chat (chatrooms), Instant Message, File Transfer Protocol, e-mail, websites, and peer-to-peer technology.

Many individuals who surf the internet - become trapped in sites that distribute these images -much of the time it is curiosity followed by ignorance - helped along by the immaturity of the internet user. While it is difficult to describe a "typical" child pornography possessor because there is not just one type of person who commits this crime.

In a national study of 1,713 people arrested for the possession of child pornography in a 1-year period, the possessors ran the gamut in terms of income, education level, marital status, and age. Virtually all of those who were arrested were men, 91% were white, and most were unmarried at the time of their crime, either because they had never married (41%) or because they were separated, divorced, or widowed (21%).

With advances in technology the formation of the State of Colorado's formed the Internet Crimes Against Children Task Force in Colorado Springs.

The truth is this - there are innocent victims in these cases. Because of the failings of individuals who - at times do not understand the internet and at others - have no idea how serious a crime this can be.

Once these images are on the Internet, they are irretrievable and can continue to circulate forever. The child is clearly revictimized as the images are viewed again and again. However, the hysteria surrounding this crime sometimes compels the prosecution of the kind of individual who means no harm - but a person who needs assistance in understanding the impact of their actions - if they were intentional.

The search warrants today that are issued in these cases are complex. They encompass media-storage devices from phones to routers to game consoles.

The Rocky Mountain Regional Computer Forensics Laboratory provides professional assistance in analyzing these images using tools provided in large part by federal agencies.

It is not only a Colorado State Crime - these cases are prosecuted at the federal level. It is a federal crime to knowingly possess, manufacture, distribute, or access with intent to view child pornography (18 U.S.C. §2252). All 50 states and the District of Columbia have laws criminalizing the possession, manufacture, and distribution of child pornography. As a result, a person who violates these laws may face federal and/or state charges.

Investigations in recent months have resulted in the prosecutions of police officers, teachers, soldiers and a children's baseball umpire according to the Denver Post.

This is an area that requires not only an experienced criminal defense lawyer - but one who has experience in these kinds of difficult and complex cases.

December 31, 2010

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


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.

August 14, 2010

South Dakota Man Arrested on Internet Luring Warrant


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.

August 8, 2010

Federal Criminal Law - The Long Arm of Federal Criminal Sex Offenses


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)


May 14, 2010

Colorado Law - Critical Changes to the Selection of Sex Offender Treatment Providers - Vetoed By The Governor

In an incredible act of political cowardice, a fine Governor bows to pressure to veto a new law that would have made it possible for convicted sex offenders to choose a state certified program without the interference of the Colorado Probation Departments that supervise these cases...

From the Denver Post Online:

Gov. Bill Ritter on Friday vetoed a bill that would have reauthorized a sex-offender management program because of an amendment attached near the end of the legislative session and intended by its author to punish a lone therapy provider.

"On an issue that is this critical to public safety and the overall success of the sex-offender treatment program, this failure of adequate vetting and thorough debate constitutes a fatal flaw with the bill," Ritter said.

The veto thwarts the effort of state Sen. Joyce Foster, D-Denver, who said a treatment agency she thinks mistreated her brother-in-law should be barred from working for the state.

Her amendment, which required sex offenders to be given a choice by their probation officer of three providers, rather than being told where to go, was approved on a voice vote. The bill later passed easily.

H. Michael's Take:

The decision of which sex offender therapist or agency to work with -- is critical to success in a Colorado Sex Offender Program... As long as the Colorado Sex Offender Program is state certified and meets the criteria set out by Colorado Sex Offender Law - that decision should be made by the person on probaion - -often facing a life sentence for failure to successfully complete treatment.

The legislature saw that issue and made the right call. The Governor could not face up to the political pressure to sustain that law and vetoed it..

This writer is hopeful that another bill -- will make it to the next governor's desk and he/she will have the strenght to do the right thing -- and sign it into law..