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April 15, 2012

The Absolute Power of Prosecutorial Discretion - Trayvon Martin and The Politics of Charging A Criminal Case

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The Duty to Due Justice

What every criminal lawyer knows - defense or prosecutor - is simple. Within the criminal justice system, the prosecutor (DA), not the judge - not the jury - and certainly not the criminal defense lawyer - has the most power.

In other forms of our government - there is a balance of power - checks and balances are written into both the State of Colorado and United States Constitutions by our forefathers. Not so in the criminal justice system. That system was taken almost wholesale from British Empire.

That system: the investigation, the decision to arrest (in this case), the charging decision, the plea bargaining decision, (and with mandatory sentencing laws which remove a judge's discretion at sentencing), the sentencing decision .. ALL rest with the discretion of the DA.

So when the special prosecutor in Florida's Martin case decided to charge George Zimmerman with second-degree murder this week in Sanford this week, politically - she may have won the praise from Martin's supporters across the nation in the short term .. know better. Those of us that spend our lives in the "system" - know that - at least on the evidence we have been given to date - are very skeptical.

The legal standard to make an arrest - probable cause - is just above the lowest standard of evidence in the criminal justice system. Just above "reasonable suspicion," that quantum of evidence necessary to make an automobile stop - is well below the standard of "proof beyond a reasonable doubt,"

Beyond a reasonable down is the quantum of evidence necessary to obtain a conviction at trial. In my opinion probable cause should NEVER be the basis for making an arrest unless additional evidence is known to the prosecutor sufficient for a prosecutor to believe, in good fatih, that s/he could obtain a conviction at trial.

Once an person has been arrested and then charged, the defendant will find it necessary to retain expensive legal representation or, if s/he can't afford it (and there aren't many people who can pay for representation on a murder charge), request a public defender.

It also means iat least temporary incarceration, and can also mean thousands of "wasted" and precious dollars used to post bond to obtain freedom from incarceration during the pending prosecution.

After a charge is made - a preliminary hearing follows on the heals of the arrest - in Colorado - within 30 days. While a judge may dismiss the case at the preliminary hearing - this almost never happens. That is because, believe it or not, the quantum of proof at a PH is - again probable cause - or what is also known as a preponderance of the evidence. Furthermore - and just as unbelievably, the evidence must be interpreted in the light most favorable to the prosecution.

What that means is this... the judge - if there is a direct 50:50 conflict in the evidence MUST find for the prosecutor's theory of the evidence presented. .. That is one hell of an advantage to the Government.

While the American Bar Association's Standards for Criminal Justice advises that a prosecutor shouldn't prosecute a case in which he doubts the defendant's guilt, .. if he believes there's enough evidence to establish probable cause, the ABA guidelines state that it's ethical to pursue a conviction.

H. Michael's Take

Before a prosecutor should request the arrest of an individual - under any and all circumstances - the prosecutor should believe in his or her case - must be convinced that a jury will find the suspect guilty beyond a reasonable doubt. If a prosecutor has a reasonable doubt concerning the guilt or innocence of a person charged, particularly in a serious felony matter, that case should never be charged. Finally, if all the prosecutor has as evidence in a case he or she is being pressured to charge a suspect - is the minimum quantum of evidence to make an arrest, probable cause, unless new evidence is located - or uncovered - that suspect should remain free.

Posted by H. Michael Steinberg | | Email This Post

February 2, 2012

GPS Tracking Shut Down By Supremes

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In a unanimous but confusing decision issued by the United States Supreme Court last week - the justices held that a 28 day use of a GPS tracking device paced on a suspects vehicle without the benefit of a search warrant - is unconsitutional.

The confusing part? Scalia did not hold that a warrant was always necessary. Walter Dellinger, who represented the Defendant Antoine Jones at the Supreme Court, said the decision means that any use of GPS technology by law enforcement without a warrant "would be a risky undertaking."

Justice Antonin Scalia wrote majority opinion stating that it was the attachment of the device that violated the Fourth Amendment's protection against unreasonable searches and seizures.

"We hold that the government's installation of a GPS device on a target's vehicle, and its use of that device to monitor the vehicle's movements, constitutes a 'search,' " Scalia wrote.

This issue now is the future -- the Court limited it's holding to the fact of the case and refused to write a clear rule that law enforcement could use for guidance under different circumstances.

The justices - raising clear questions of other technologies equally intrusive wrote in separate opinions, of the sweeping changes technology has brought to society that do not involve government intrusions.

"In the course of carrying out mundane tasks," Sotomayor wrote, Americans disclose the phone numbers they dial, the URLs they visit, "the books, groceries and medications they purchase."

Alito wrote of toll booths that record a motorist's travels, cars that come ready to broadcast their locations and 322 million wireless devices in use nationally.

H. Michael's Take

What is most certainly going to happen at this point is that the States -- picking up on the Court's reasoning will most likely find that the long term use of survelliance devices - of any kind - are suspect - and that the actions of law enforcement in tracking citizens using these kinds of technologies will be presumed unconstitutional.

Posted by H. Michael Steinberg | | Email This Post

January 19, 2012

Colorado State Legislature and School Districts Attempt A More Rationale Approach To Colorado Juvenile Criminal Law and School Discipline in a Post Columbine World

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A recent article in the Denver Post finally addresses the most recent attempts by Colorado Schools - hopefully to be followed by the Colorado State legislature - to reverse years of Zero-Tolerance policies in Colorado's Public Schools and in the Courts.

Last year in December - another excellent article in the Denver Post quoted a Magistrate Kent Spangler, a Fort Collins Judge, who had this to say:

"Kids won't gain a respect for the law, for their parents, for teachers, for rules in general if they're told 'You're wrong! You messed up!' and don't take the time to get at the root of the problem,"

As an experiencd former Colorado Front Range Career Prosecutor -DA and now a Colorado Crimiinal Defense Lawyer - I am always impressed by judges who take the time to "teach" individuals before them about the law and the impact of their acts on their families, the victims, or society. Judge McGahey in Denver, Judge Ollada and Benze in Arapahoe County, and the list goes on and on.

Colorado has some of the best and most caring judges in the nation in my opinion.

Zero Tolerance policies - enacted after the so called Summer of Violence in the 1980's and following the Columbine Case - were and continue to be mindless - knee jerk reactions to complex problems. Juveniles have little life experience to fully understand the nature of their actions and the laws need to address those more difficult underlying issues.

The vast majority of crimes committed by juveniles ultimatley involve alcohol and low level drug offenses- - both of which are typically minor offenses in the criminal justice system.

The exposure of these kids in the juvenile justice system will have the kind of impact that is difficult to measure.

"These kids aren't monsters. They're kids! Sure they've gotten a little off track but you can't write them off. You have to show them what they're worth- appeal to their intellect- and when they start to believe they can do better, they will," said Spangle

In an article by Kevin Simpson - Kevin highlights the debate - "that the well-intentioned pendulum swing toward zero tolerance (after Columbine) resulted in a loss of perspective -- something he saw illustrated in his jurisdiction by the 2009 suspension of a Cherry Creek School District student for bringing non-functioning, drill-team rifles to school in her car."

H. Michael's Take

The task force addressing a revamping of Colorado's Juvenile Code - needs our support - to take a more rational view of the Colorado Juvenile Justice System - New statewide legislation - taking a reasoned approach to the complex issues behind juvenile crime - is what we need today.

Hurrah for the pendulum swing - let's hope it continues it's swing away from the Post-Columbine zero tolerance approach. Sen. Linda Newell, D-Littleton, who has introduced Senate Bill 46, regarding the revamp of school dicipline laws - is on the right track.

Posted by H. Michael Steinberg | | Email This Post

December 26, 2011

Dismissed DUIs in Colorado Underscore Need to Investigate Lead Police Officer's Credibility

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Recently in Mesa County Colorado on the Western slope of Colorado, the District Attorney's office was forced to dismiss eight criminal cases in light of credibility questions surrounding a former Colorado State Trooper.

Because of the impact of the lead officer's testimony in a DUI caae, the District Attorney's officer is reviewing hundreds more cases that are expected to be dropped in the coming weeks.

The tropper - Donald Moseman, stepped down from the State Troopers Office in December after a departmental investigation.

The cases that have been dismissed are all drunk driving misdemeanor cases that had Moseman as the sole witness for the prosecution but additional cases in additional areas are also subject to the same scrutin .

The result of this action has led to a demand by Colorado Defense Lawyers in the area to turn over the contents of Moseman's internal affairs investigation, and it is expected that a judge will compel the department to turn over those records so that the judge could perform a private review to determine if there was material in that file that is relevant to these cases

This kind of material is called Brady Material and is considered directly exculpatory or potentially exculpatory evidence therefore the District Attorney is required by Colorado Law to turn over material bearing on the credibility of their primary witness.

The Grand Junction Sentinel reproted that:

"A letter dated Dec. 5 that was sent to Hautzinger by State Patrol Major Barry Bratt said an internal investigation found Moseman "displayed bias" in cases involving drivers suspected of being impaired by drugs or alcohol. The letter said Moseman submitted reports that "were a combination of reports from prior arrests and the current arrest, resulting in reports which contained wrong or conflicting information." "

Posted by H. Michael Steinberg | | Email This Post

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

Well Known Colorado Judge Conducts a Study - Public Defender or Private Lawyer - Is There Really a Difference?

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What follows is an article that appeared some years ago in the NY Times. ( 2007)'

Researched and written by a well known and well respected Denver District Court Judge - Morris Hoffman - the article concludes that retaining a private lawyer may be worth the money.

While it is long - I will let you decide:

SIXTEEN years as a state trial judge have left me with a deep respect for the professionalism and competence of the public defenders who handle felony cases for indigent criminal defendants in my courtroom. In fact, I've told friends, only half-jokingly, that if they are ever charged with a serious criminal offense, the first thing they should do is give all their assets to charity, in an effort to qualify for public defender representation.

So when two economists from Emory University, Paul Rubin and Joanna Shepherd, agreed last year to collaborate with me on an econometric study of how effective public defenders really are, I had to guard against confirmation bias. I was positive that public defenders would prove more effective than their private counterparts. Mr. Rubin and Ms. Shepherd, with their occupational faith in markets, were equally positive of just the opposite. In the end, the economists were right, though with an interesting twist. (The full study has been published in the Ohio State Journal of Criminal Law.)

We looked at all 5,224 felony criminal cases filed in Denver in 2002. Most other studies measure lawyer effectiveness through indicators like acquittal rates, but we used the one thing criminal defendants care about most: the amount of jail or prison time they receive. Thus, acquittals counted as zero. Probationary sentences likewise counted as zero, unless the probation was combined with some jail time.

We counted halfway-house sentences as 120 days, which is typical for Denver defendants. We counted the initial length of a prison sentence without decreasing it for early release or increasing it for parole violations. Life sentences we arbitrarily counted as 110 years.

My economist friends were able to use regression analyses to control for other variables (such as whether a case was plea bargained or went to trial), to minimize the chance that the differences we found were caused by factors other than effectiveness. They also used regressions with different combinations of variables, to ensure that our results were not sensitive to a particular variable.

The results were surprising. The average sentence for clients of public defenders was almost three years longer than the average for clients of private lawyers.

But our most notable finding was hidden in one of the variables we had controlled -- the seriousness of the case. We had assumed that public defenders on average handled more serious cases than private lawyers, if for no other reason than that such cases carry higher bonds, and defendants who can't make those bonds are often rendered indigent by their pretrial incarceration. The length of their clients' sentences would of course be distorted by the fact that they handle more serious cases with longer potential sentences.

But when we removed the control for the seriousness of the crime, public defenders performed relatively worse, not better (five years more incarceration versus three years more).

When we examined the seriousness of the cases handled by each type of lawyer, we discovered not only that private lawyers tend to handle more serious cases, but also that as the seriousness of the case increases, the chances that a private lawyer is handling it also increases. What in the world could explain such a result?

It turns out that the explanation, at least in part, is one that should put a smile on the face of all free-marketers and rational choice theorists: criminal defendants, just like any other consumers of services, appear to be making choices based on their rational assessments of costs and benefits. But, you might ask, do criminal defendants ever really have a choice between public defenders and private counsel? It appears many do.

Our data suggested that, contrary to the law's rather binary notion of indigency, a large chunk of felony criminal defendants are what we have called "marginally indigent." They could, if they had to, tap hidden resources, or the resources of family and friends, to retain private lawyers. But what drives that decision? Just what you'd expect from any rational consumer of criminal defense services: a combination of the seriousness of the offense and the likelihood of conviction.

Imagine a guilty, marginally indigent defendant facing a relatively minor felony (for which he will most likely get probation). Now add to the mix the fact that his crime was captured on videotape, meaning he has a small chance of avoiding conviction. It is unlikely such a defendant would deplete his and his family's and friends' resources to hire a private lawyer when he could get a free public defender to achieve the same result.

At the other end of the spectrum, imagine a marginally indigent defendant charged with first degree murder, and imagine that he is innocent. Wouldn't that defendant do everything in his power to marshal the resources to hire a private lawyer, if he believed, rightly or wrongly, that the private lawyer were more likely to achieve an acquittal?

In other words, marginally indigent defendants who choose public defenders tend to be guilty. And of course if that's true, it's not at all surprising that public defenders would achieve less favorable outcomes.

More work needs to be done to confirm these results. But if they hold, and hold nationally, they could have important policy implications. Roughly one-third of all states have formal statewide public defender systems, and several others have regional or local systems. Current debates about improving these systems tend to revolve around two poles: increased financing (for which public defenders have been clamoring since the 1980s, when per client spending in most systems, in real dollars, took a nose dive from which it has never recovered) and, more recently, privatization.

If it is true that public defenders achieve substantially worse results for their clients than private lawyers, that fact should be troubling to us all, quite apart from whether the difference is the product of underfinancing, government inefficiencies or both.

But our results suggest a more benign explanation, and a less drastic solution than spending more on public defenders or privatizing the system. If self-selection by guilty, marginally indigent defendants is driving a big part of this effectiveness difference, the remedy may simply be to tighten the mechanisms we use to determine indigency. This solution would not only reduce the outcome differences between public defenders and private defense lawyers, but it would also give taxpayers more bang for their public defender buck.

Morris B. Hoffman is a Colorado state trial judge and a fellow at the Gruter Institute for Law and Behavioral Research.

Posted by H. Michael Steinberg | | Email This Post

August 26, 2011

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

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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

Posted by H. Michael Steinberg | | Email This Post

June 30, 2011

The Changing Face (2010) of Probable Cause for Search Warrants in Colorado

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The Colorado Supreme Court recently (in April 2010) revisited what the law requires to create probable cause - that standard of proof necessary to support a search warrant.

By Denver, Colorado Criminal Defense Lawyer - H. Michael Steinberg

Probable Cause

The United States and Colorado Constitutions prohibit issuance of a search warrant without a showing of probable cause supported by oath or affidavit. See U.S. Const. amend IV; Colo. Const. art. II, § 7.

"'Probable cause exists when an affidavit for a search warrant alleges facts sufficient to cause a person of reasonable caution to believe that contraband or evidence of criminal activity is located at the place to be searched.'"

Probable cause is determined by the "totality of the circumstances." Under the Colorado Constitution, the facts supporting probable cause must be reduced to a writing, and so probable cause must be established within the four corners of the warrant or its supporting affidavit.

However, the analysis is not governed by hypertechnical legal rules; rather, a judge must make a "practical, commonsense decision" as to whether there is a fair probability that a search will reveal contraband or evidence of a crime.

Probable cause' itself need not satisfy any rigid, hypertechnical requirements but is a 'practical, nontechnical conception,' involving common-sense conclusions about human behavior."

In People v Scott, the Colorado Supreme Court expanded the "source" of probable cause to allow a judge to "add together" the evidence taken from two separate search warrants to support probable cause for a single search warrant. Scott had challenged the second search warrant as having issued without probable cause. The trial court concluded the affidavit supporting the second warrant was insufficient to establish probable cause and granted his motion to suppress all items collected thereunder except for the modified treadmill found in the garage.

After review, the court concluded that two affidavits could be read together and that the constellation of facts set forth by the two affidavits was a sufficient to provide the judge with a substantial basis from which to conclude that probable cause existed.

H. Michael's Take:

I disagree with the court's conclusions. In the past, where two affidavits have been read together to support a single search warrant, the affidavits incorporated each other by reference to each other.

In this case - the court broadened this rule of law on what it takes to establish probable cause in Colorado.

"Here, though, the affidavit supporting the second warrant does not explicitly incorporate by reference the affidavit supporting the first warrant. Rather, the second affidavit only states that the officers made their observations while executing the first search warrant at Scott's residence. Nonetheless, the observations sworn in the first affidavit clearly informed the ongoing investigation as well as the second warrant request. To force the two affidavits to be considered separately simply because Officer Feeney failed to explicitly incorporate the first affidavit into the second would be to impose hypertechnical requirements on an affidavit's form and constrain the commonsense approach that guides a magistrate's probable-cause determinations."

To read the entire decision see:

http://www.cobar.org/opinions/opinion.cfm?opinionid=7573&courtid=2

Posted by H. Michael Steinberg | | Email This Post

May 5, 2011

Colorado Mental Health Court in Arapahoe County Scores a Victory for Justice

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In a recent article written by Mike McPhee of Colorado Public News, Mr. McPhee traces the history of one of the most significant pioneering programs in Colorado Jurisprudence....the Arapahoe Distirct Court's Mental Health Court.

District Attorney Carol Chambers, former Senior Public Defender Gina Shimmeall and Chief Judge Bill Sylvester - representing all sides of the criminal justice system - came together in 2010 and launched this excellent alternative to the constant and repreated incarceration in the Department of Corrections of the mentally ill.

Mr. McPhee's story follows the iife of "Barbara " a 50-year old woman who has struggled all her life just to maintain, sometimes just to survive... and (who) inherited severe mental illness and suffers from severe depression with psychotic episodes... as well as suffering from severe diabetes, severe arthritis, a bad heart, high blood pressure and pancreatitis.

Barbara has 11 prior felony convictions and had spent over 25 years in prison.

"Colorado taxpayers have spent hundreds of thousands of dollars to keep Barbara locked up in prison. Like most mentally ill defendants, Barbara has found herself in a revolving door of serving time in prison, getting out, committing more crimes, being convicted again, and ending up back behind bars."

In McPhee's article - he points out that Colorado taxpayers have spent hundreds of thousands of dollars to keep Barbara locked up in prison. " with no success.

"Like most mentally ill defendants, Barbara found herself in a revolving door of serving time in prison, getting out, committing more crimes, being convicted again, and ending up back behind bars. But now, Barbara is changing her life, thanks to a mental health court in Arapahoe County that is ensuring she gets treatment. Taxpayers could save hundreds of thousands of dollars if she keeps succeeding and never returns to prison."

Colorado ranks 49th in funding for the treatment of the mentally ill. Our prisons are full of Barbara's - too poor to obtain proper mental health treatment and not capable of surviving without violating the law.

It is a well known statistic in the prison system - that at least 25 percent of Colorado's prison population is mentally ill.

<

div style="text-align: center;">"Our prisons and jails are the new asylums. They've become the largest facilities in the state for housing the mentally ill," said Arapahoe County District Attorney Carol Chambers.

The state's prisons do not provide the therapy these individuals need and they "the inmates leave with the same problems and commit the same crimes.

H. MIchael's Take:

The Arapahoe County Mental Health Court deserves our support. It is not only humane and Christian - it makes sense from every angle -- fiscally, efficiency, and justice. Support it if you are in a position to help.

The Arapahoe County Mental Health Court, helps stop - or maybe just slow down the revolving door that mentally ill defendants are placed in. The results have been very promising.

"Convicted felons with mental illness, like Barbara, are placed into an intensely supervised, highly structured environment with lots of counseling. Group therapy sessions include heavy doses of peer pressure, open displays of encouragement, and congratulations for meeting goals."

"Not one of the Arapahoe County Mental Health Court's 40 habitual, mentally ill felons like Barbara has committed a new crime in 17 months of existence. That's compared to a previous repeat crime rate of nearly 100 percent for the program's participants. The Colorado Department of Corrections says that overall, 50 percent of its prisoners are back within five years.

"Once they've served their time in prison, these people have no support system when they're released," said Barbara Becker, a counselor for the nonprofit Arapahoe/Douglas Mental Health Network, a private agency that works with the mentally ill. "They lose their meds, they return to alcohol and drugs and re-engage in criminal behavior. It's a revolving door."

For Mr. McPhee's article click here

Posted by H. Michael Steinberg | | Email This Post

April 9, 2011

Colorado Reckless Child Abuse Case Raises Questions About Charging Decision

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In a recent Colorado felony child abuse case in Clifton, Colorado, a man was charged for failing to secure a single oxcycodone pill which resulted in the death of his child.

Manuel Angel Rivera was arrested by investigators with the Mesa County Sheriff's Office who believe they have probable cause to establish that Analeisia Rivera "must have" swallowed the drug and then died as a result of the overdose.

The accused admitted that he had purchased the pill illegally because it assisted him as a sleep aid.

The case is being screened for the charge of reckless child abuse resulting in death, and two counts of illegal drug possession.

The infant's sister - a three year old told her parents that "sissy would not wake up," the affidavit said.

"Manuel Rivera stated it was his fault she died," according to the affidavit. When emergency personnel arrived at the home, Manuel Rivera was "distraught and screaming" and was forced to move away from the child by deputies so paramedics could work on her..

The infant girl had 13 times the therapeutic level of the opium-derived painkiller and she died from "oxycodone intoxication."

H. Michael's Take

Colorado Child Abuse cases turn on the strength of the investigation performed by the first responders to the call. The infant's death here was clearly an accident and not intentional. Many of us use prescription medications that are very powerful in the hands of children. Many of them fatal.

Often we do not secure these medications as we should. The issue here is whether the adult was "reckless" in not securing every pill. His actions at the scene - most probably the result of his extreme guilt - may have been enough to establish probable cause for the arrest - but is there enough evidence to convict at trial? On these facts - I suggest not. Emotional reactions to personal feelings of guilt are not the equivalent of hard evidence...

For follow up on this topic - and to study the law in this area - I invite you to refer to my website on Colorado Child Abuse Issues.

Posted by H. Michael Steinberg | | Email This Post

March 28, 2011

CNN Points Out Danger in Using Jail Phone in Domestic Violence Cases

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This weekend, CNN did an excellent report demonstrating the dangers in using the jail phone - which records every conversation - in the context of weak domestic violence cases.
The article and braodcast was entitled Recorded calls keep inmates locked up

The gist of the report was simple... do NOT use the jail phone to talk to ANYONE about your case!

The why - is obvious -- domestic violence cases are defensible.. the alleged victim admits she lied -- or refuses to cooperate - or believes that a prosecution is not what she wants. The system continues to roll over the relationship - often resulting in the destruction of that relationship. This is exactly what the alleged victim does NOT want.

In weak domestic violence cases, the DA will "mine" these recorded calls looking for evidence of violations of no contact orders. intimidation of a witness, or tampering with witnesses. The latter two crimes are usually filed as new felony cases.

Despite repeated warnings posted on the walls of the jail - by the phone - by family and friends and by their attorneys - remarkably - those accused of domestic violence continue to make this terrible mistake.

Here is an excerpt from the article:

Amazingly, detainees keep calling from jail despite posted signs warning that their calls are being recorded. A taped messageat the start of each call also reminds them of monitoring. Some detainees use the phone as many as five times a day. Authorities estimate some inmates make hundreds of calls while waiting for their cases to come up.

"I guess they feel that in tens of thousands (of calls), theirs might be the one that doesn't get listened to, but all inmate calls are recorded," says Andrea Hall, who directs the intelligence unit for New York City's Department of Corrections.

Some detainees aren't exactly Einsteins.

Kessler says one man who apparently knew he was being monitored warned someone on the other end to speak in Spanish, thinking they wouldn't be understood. "We had one (mother) who said to her son, 'They may be listening.' And his response was 'Mom, they don't have time for this.' "

Yes, actually, they do. At the district attorney's office, prosecutors wearing headphones listen to hour after hour of admissible recordings. Calls to attorneys and clergy are exempt"

If you are in jail and you are accused of ANY crime PLEASE do NOT speak to anyone about your case except your lawyer!

Here is a link to help you understand the crimes of Tampering or Intimindation of a witness 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

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