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October 12, 2011

Minor Domestic Violence Cases Overwhelms Topeka Kansas Courts - They Stop Prosecuting Them!

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Overwhelmed by hundreds of "minor" domestic violence cases, nearly half of Shawnee County's misdemeanors are domestic battery cases... the county has said enough.

Domestic abuse prosecutions had increased over the last three years with no additional funding.

Here is where trhe rubber hits the road when it comes to "political correctness."

I have either prosecuted or defended Colorado Domestic Violence cases for over 28 years. Back when they were treated like all other cases - (where law enforcement was allowed to decide which cases needed to be prosecuted and which cases should result in mediation and detoxification ) -- the police and the courts could cope.

Today - in Colorado and across the United States - as a result of powerful feminist influence over state and local legislatures - mandatory arrest policies and no drop policies are clogging the courts with unnecessary prosecutions -- and most often - the "alleged victims" of these cases do NOT WANT government in their and their families' lives.

In the city of Topeka -- which had a misdemeanor domestic battery law - they could no longer afford to prosecute these cases.

So - guess what -- the City Council members rescinded the domestic battery law.

Now the cases are prosecuted soley in the Kansas state courts under state domestic battery laws.

Of course -- the cry of the feminist lobbyists was heard far and wide.

"I absolutely do not understand it," said Rita Smith, executive director of the National Coalition Against Domestic Violence, in the Star's report. "It's really outrageous that they're playing with family safety to see who blinks first. People could die while they're waiting to straighten this out."

In these times of budget cuts and limited government resources -- I am hopeful that Colorado governmental agencies will follow Topeka's lead and restore the decision to arrest in these cases to those in the best position to exercise that discretion -- the cop on the beat .. who is - as Dennis Hybert puts it on The Unit -- the man on the ground. H. Michael

Posted by H. Michael Steinberg | | Email This Post

September 3, 2011

New 2011 State Law Increases Pre-sentence Investigative Report Requirements Before a Judge Passes a Colorado Sentence

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With an Effective Date of August 10, 2011 this new law will require probation officers across the state to provide additional information to sentencing judges before these judges make sentencing decisions.

Summary of The New Law

This new law expands the existing statutory requirements for presentence investigation reports (PSIRs) that are completed by probation departments.

The PSIR report must, as a result of this new law, include the following sections:

• an assessment of the offender's criminological risks and needs;

• an analysis, based on previously mentioned risk-needs assessment, of which sentencing option is most likely to reduce recidivism by the offender;

• sufficient data to allow the court to determine: whether the offender is suitable for one or more containment options that do not entail incarceration; and the form and appropriate conditions of probation, if appropriate;
and

• a description of the rates of recidivism and projected costs, if known, associated with each sentencing option available to the court.

The present state of the law includes four specified purposes of sentencing.

This new law adds MUCH NEEDED additional purposes, which will assist the Colorado sentencing judge to select a sentence alternative, a sentence length, and a level of supervision that addresses the offender's individual characteristics and reduces potential recidivism by that offender.

The sentencing court is required, before sentencing an offender to a period of incarceration, to review the purposes of sentencing and determine which sentencing option will best achieve such purposes.


H. Michael's Take

While this determination is not required to be a part of the court record, nor is it to be used as the basis for challenging any sentence issued by the court, it will assist criminal defense lawyers and formulating arguments to persuade judges NOT TO INCARCERATE individuals if there are other - more humanistic and compassionate - alternatives.

The goal of the process is to provide the court with all available relevant information so the court can determine the best sentencing option for the defendant. The PSIR currently includes a risk-needs assessment and a list of conditions under which a defendant can be safely managed in the community should the court choose to sentence the defendant to probation.

Here is the new section:

16-11-102. PRESENTENCE OR PROBATION INVESTIGATION.

(1.9) EACH PRESENTENCE REPORT SHALL ALSO:

(a) INCLUDE THE RESULTS OF AN ACTUARIAL ASSESSMENT OF THE
OFFENDER'S CRIMINOLOGICAL RISKS AND NEEDS;

(b) PROVIDE SUFFICIENT INFORMATION TO ALLOW THE COURT TO
CONSIDER:

(I) WHETHER THE OFFENDER IS A SUITABLE CANDIDATE FOR A
SENTENCING OPTION THAT DOES NOT INVOLVE INCARCERATION OR A
COMBINATION OF SENTENCING OPTIONS THAT DOES NOT INVOLVE
INCARCERATION; AND

(II) THE APPROPRIATE CONDITIONS TO IMPOSE IF A DEFENDANT IS
SENTENCED TO PROBATION;

(c) DESCRIBE THE PROJECTED COSTS, IF KNOWN, THAT ARE
ASSOCIATED WITH EACH SENTENCING OPTION THAT IS AVAILABLE TO THE
COURT; AND

(d) SET FORTH THE PURPOSES OF TITLE 18, C.R.S., WITH RESPECT TO
SENTENCING, AS SUCH PURPOSES ARE DESCRIBED IN SECTION 18-1-102.5,
C.R.S.

Posted by H. Michael Steinberg | | Email This Post

August 19, 2011

New Law In Colorado Compels Police to Advise You of Right to Refuse Search of You or Your Vehicle

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Just a quick FYI and a reminder. A new law passed in Colorado requires the police - in the absence of a legal right to search your vehicle - prior to conducting a consensual search of your effects or your vehicle of a person - to inform the person that they are being asked to voluntarily consent to a search and that they have the right to refuse.

The targeted "searchee" must provide oral or written consent.

Again this requirement does not apply to searches conducted under other valid exceptions to the wsearch arrant requirement.

Posted by H. Michael Steinberg | | Email This Post

January 27, 2011

UK Crosses The Line In Escalating The Crimes of Domestic Violence -- Colorado Not There Yet

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Criticizing partner, denying them money and shouting is domestic abuse, in UK court

BRITAIN'S Supreme Court has ruled that shouting constitutes as domestic violence and anyone who raises their voice at their partner could be thrown out of their home, the Daily Mail reported Thursday.

Leading a bench of five judges, Lady Brenda Hale made the ruling in the case of Mihret Yemshaw, 35, who had applied for free housing entitled to victims of domestic abuse.

Ms Yemshaw said her husband had yelled at her in front of their two children and did not give her money for housekeeping.

However, her request was rejected by officials in Hounslow, West London because her husband had never hit her or threatened physical violence.

But the new judgment means Hounslow council will be required to reconsider Ms Yemshaw's case.

Under the landmark ruling, denying money to a partner or criticizing them could also count as abusive behavior.

H. Michael's Take

While Colorado's Legal Definition of Domestic Violence is very broad - it has not achieved the insanity of the ruling of this British court.

Colorado criminal defense lawyers agree that many arrests in Colorado for domestic violence are frivolous on their face.

I have defended cases where water was thrown on a spouse's face -- where the back of the husbands head was playfully scuffed - and where a spouse has broken his own personal property in an silly manner -- all leading to arrests, charges, and later dismissals of the cases - but this case reaches new plateaus of absurdity.

Colorado has not reached that point in the expansion of the crimes of domestic violence.. HMS

Posted by H. Michael Steinberg | | Email This Post

August 6, 2010

The Shame of Winning at All Costs

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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

Posted by H. Michael Steinberg | | Email This Post

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