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December 16, 2012

Colorado Lawyers Threatening Criminal Prosecution to Gain an Advantage in a Civil Matter

by Colorado Criminal Defense Lawyer - Attorney - H. Michael Steinberg

Colorado lawyers who threaten to report a crime to the police unless they are paid money MAY BE violating the criminal and ethical laws of the state.

This article addresses the ethical rules governing the conduct of lawyers and the laws governing the Colorado crime of compounding.

The Criminal Side of Threatening Criminal Prosecution

Here is the actual Colorado criminal law on the subject of the crime of compounding

18-8-108. Compounding

(1) A person commits compounding if he accepts or agrees to accept any pecuniary benefit as consideration for:

(a) Refraining from seeking prosecution of an offender; or

(b) Refraining from reporting to law enforcement authorities the commission or suspected commission of any crime or information relating to a crime.

(2) It is an affirmative defense to prosecution under this section that the benefit received by the defendant did not exceed an amount which the defendant reasonably believed to be due as restitution or indemnification for harm caused by the crime.

(3) Compounding is a class 3 misdemeanor.

Ethical Issues Binding Lawyers

The Civil Side of Settling Civil Cases of Theft or Embezzlement Using The Threat of Prosecution

Every state has it's own version of the Rules Of Professional Conduct (RPC). Colorado is no exception.

Regarding Civil Settlements - several Colorado RPC's govern an attorney's permissible conduct in negotiating settlements on a client's behalf.

One is Rule 4.4

"In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person." Rule 4.4, RPC.
Another is Rule 4.1(a)

"In the course of representing a client a lawyer shall not knowingly: . . . Make a false statement of material fact or law to a third person." Rule 4.1(a), RPC. They also provide that "A lawyer shall not . . . offer an inducement to a witness that is prohibited by law."

Rule 3.4(b), RPC.

... "[a] lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous, . . ."

Rule 3.1, RPC. States

"It is professional misconduct for a lawyer to: . . . Commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as alawyer in other respects" or to "engage in conduct that is prejudicial to the administration of justice."

Lawyers must be honest and fair play in their dealings with people other than their clients.

These rules also ... collectively prohibit threatening criminal prosecution solely for the
purpose of negotiating a favorable settlement in a civil action - something on the order of theft by extortion within the meaning of the criminal code.

The rules overlap in their application and must be read carefully.

But this does NOT mea the mere mention of the possibility of criminal charges being brought is off-limits? The answer is no.

The ABA Ethics Committee has also issued an opinion holding that an attorney may use the possibility of bringing criminal charges against an opposing party in a private civil matter as long as the civil matter and the criminal matter are related and warranted by law and fact, provided that the attorney does not try to influence the criminal process. ABA Op. 92-363 (1992).

For lawyers - any wrongful conduct, including criminal conduct, dishonesty, and deceit are clearly forbidden. The rules allow lawyers to make truthful observations - it's permissible, for example, to point out that the opposing party's actions could be subject to criminal prosecution - but not to participate in extorting money from the other side.

Also making idle or dishonest or frivolous threats is inconsistent with every lawyer's obligations under the RPC. BUT the lawyer CAN - in settlement negotiations - discus the criminal implications of a party's conduct.

One Example - An Employee Steals From A Business

A lawyer representing an employee who has committed a criminal theft attempts to negotiate a resolution with the employer business or its clients, might ask that the employer refrain from reporting the matter for criminal prosecution in exchange for repayment of the money.

What is not permissible is for a lawyer representing the employer to demand huge sums
of money - well beyond the amount stolen - in exchange for not reporting the theft to the police.

In addition - if the lawyer knows that a client would never under any circumstances refer a matter for criminal prosecution, it is wrong to threaten such an action.

DR7-105(A) of the predecessor Model Rules barred lawyers from presenting, participating
in presenting, or threatening to present criminal charges "solely to obtain an advantage in a civil matter."

The latest version of the Model Rules and the Colorado equivalent - eliminated this provision.

Threatening Criminal or Administrative Prosecution in a Civil Case - The Key Factor

A well known and well respected Denver lawyer has written on this subject - and attribution is made to Charles Luce - Of Moye Giles for the following:

...[T]he distinction between advising opposing counsel that her, or her client's, conduct has more than civilly actionable consequences, and threatening that you may do something about it, is that the latter violates the Colorado Rules of Professional Conduct ("Colo. RPC"), while the former usually does not."

"The determination of whether a communication is a friendly "notice" or an anctionable "threat" must still be made on an ad hoc basis. It is foreseeable that one communicating attorney's "notice" will be perceived as another receiving ttorney's "threat." Still, subsection (b) does, for the first time, give express comfort and a safe harbor to attorney good Samaritans. As importantly, counsel need no longer feel compelled to stew silently while opposing counsel systematically violates the Rules of Professional Conduct, for fear that if she calls "a spade a spade" the most likely disciplinary action to result will be against her for threatening disciplinary charges

The line between "threat" and "notification," is found in the Official Comment to Colorado Rule 4.5 offers this guidance:

[F]actors that should be considered to differentiate threats from notifications in difficult cases include (A) an absence of any suggestion by the notifying lawyer that he or she could exert any improper influence over the criminal, administrative or disciplinary process, (B) consideration of whether any monetary recovery or other relief sought by the notifying lawyer is reasonably related to the harm suffered by the lawyer's clients.

Where no such reasonable relation exists, the communication likely will constitute a proscribed threat. For example, a lawyer violates Rule 4.5 if the lawyer threatens to file a charge or complaint of tax fraud against another party where issues of tax fraud have nothing to do with the dispute. It is not a violation of Rule 4.5 for a lawyer to notify another party that the other person's writing of an insufficient funds check may have criminal as well as civil ramifications in a civil action for collection of the bad check.

Continue reading "Colorado Lawyers Threatening Criminal Prosecution to Gain an Advantage in a Civil Matter" »

October 30, 2012

Plea Bargaining In The 21st Century - The High Cost Of Bad Advice From Criminal Defense Lawyers

In March of this year (2012) the United States Supreme Court decided two cases that will change the face of plea bargaining forever.

The First Case - Cooper

In Lafler v. Cooper and Missouri v. Frye: Two U. S. Supreme Court cases involving criminal defendants who claim that their convictions should be overturned because they may have been convicted on lesser charges had their defense attorneys not given them bad advice.

The First Case - Cooper

The Facts:

In 2003 Anthony Cooper was charged with attempted murder for shooting a woman causing serious injury. A police officer witnessed the shooting. Prior to trial, the state offered Cooper a plea bargain carrying a shorter sentence than if he were convicted on all charges. His attorney advised against the deal. Cooper was later convicted by a jury and received the longer sentence.

The Issue:

In a the first case, Anthony Cooper was charged with assault with intent to murder after he shot a woman in the thigh and buttocks. Prosecutors twice offered a plea deal with a recommended prison term of four to seven years, but Cooper's lawyer advised him to reject the offer, because the lawyer said Michigan law did not permit an attempted murder conviction for wounds below the waist. The advice was indisputably wrong and Cooper was tried, convicted and sentenced to three times as much prison time.

The Second Case - Frye

The Facts

In 2007, Galin Frye was charged with driving with a suspended license, a felony because of his multiple prior convictions. Prior to trial, the prosecutor offered to allow Frye to plead guilty to a misdemeanor and serve 90 days in jail. Frye's attorney did not report this offer to his client. Later, Frye pled guilty to the original felony charge and received 3 years in prison.

The Issue:

In Frye's, the prosecutor sent Frye's lawyer a letter offering to reduce the charge to a misdemeanor if Frye would plead guilty and agree to a 90-day sentence. The lawyer, however, never informed his client of the offer, and when it expired, an uninformed Frye pleaded guilty with no conditions and was sentenced to three years in prison, more than 10 times the plea bargain offer.

The Ruling:

For the first time, the U.S. Supreme Court has ruled that...

...defendants charged with criminal acts have a constitutional right to effective assistance of counsel in plea bargains. In a 5-4 decision, the United States Supreme Court went further, declaring that...

... when a lawyer acts unethically or gives clearly wrong advice, the defendant may be entitled to a second chance at accepting a plea offer.

The government in both cases conceded that the defense lawyers provided ineffective legal assistance to their clients, but the each of the states' attorney general contended that it didn't matter since there is no constitutional right to a plea bargain...the United States Supreme Court rejected that argument by a 5-4 vote.

H. Michael's Take

For the first time in my recent memory - the US Supreme Court took a hard look at the reality of the United States criminal justice System and found that it is "A System Of Pleas/"

Justice Kennedy found that the reality is that the criminal justice today is "a system of pleas." Ninety-five percent of all convictions are the result of plea bargains, not trials, and the right to adequate assistance of counsel guaranteed in the Constitution cannot exclude the "central role plea bargaining plays."

In truth plea bargaining determines "who goes to jail and for how long. It is not some adjunct to the criminal justice system. It is the criminal justice system," Kennedy said.

The Court's ruling held the following:

....defendants should get a second chance to accept the original offer if they can show they very likely would have done so originally, that the prosecutor would not have withdrawn the offer, and that the judge would have approved it.

Rachel Barkow, director of the New York University Center on the Administration of Criminal Law put it best when she said:

"This is a very practical court, and I think this is a court that says: Look, practically speaking, plea bargaining is where we need to be policing things,"

...Barkow said.

This is for 95 percent of defendants. All those defendants have is their lawyer, and if their lawyer is deficient, then those defendants have nothing."

Put another way by another expert:

Get real -- most of the bad lawyering occurs in cases that involve plea bargaining because most cases involve plea bargaining

July 6, 2012

2012 Colorado Law Closes Hit And Run Loophole - Anomaly

As an ex Career DA and now as a Colorado criminal defense lawyer, I have been aware for almost 30 years of a loophole in the criminal law of Colorado that actually created an incentive for drunk drivers to flee the scene of car accidents.

That loophole has now been closed.

With the passage of House Bill 1084 - signed by the Governor on June 6, 2012 - the new law increases the possible penalties for leaving the scene of a serious bodily injury crash from a class 5 felony to a class 4 making it equivalent to possible penalties for drunk driving.

End the Incentive to Flee

The old Colorado law gave drunk drivers, especially repeat offenders, an incentive to not stop at the scene of a crash and call for help of injured people. It benefited drunk drivers with a lesser range of penalties for fleeing the scene and trying to hide out until they are sober. The consequence of this loophole at times might mean the life or death of someone needing immediate medical attention at the scene of a crash.

H. Michael's Take:

Defending The Hit and Run Case In Colorado

Read more....

Continue reading "2012 Colorado Law Closes Hit And Run Loophole - Anomaly" »

May 30, 2012

The High Cost Of Mandatory Sentencing - The Innocent Plead Guilty In Sexual Assault Cases

A recent case involving the freeing of an innocent man - Brian Banks College Football Player - jailed for 5 years - once again supports the removal of the prosecutor's "weapons" of mandatory sentencing laws - here in Colorado and around the county.

Banks was accused of rape by a teenaged girl - but rather than take his chances with a jury - even though he was innocent of the charge - he pleaded no contest to the childhood friend's false accusation of rape in 2002.

The alleged "victim" later recanted the accusations.

In a recent post on my sex offense web site - I discuss the impact mandatory sentencing laws have had on the Colorado criminal justice system. What happens - every day in the courtrooms of Colorado and across the nation is this - innocent individuals - facing indeterminate life sentences under the Colorado Lifetime Supervision Act - take "deals" rather than taking their cases to trial.

For Mr. Banks - the Morton's Fork decison was the same.

Banks, who was 17 at the time of his trial, pleaded no contest to the charges in order to avoid the possibility of facing 40 years to life in prison in a conviction. He spent six years in prison and was under very restrictive parole until his accuser was recorded saying she wasn't raped and that she is afraid of coming forward because she might have to return the $1.5 million her family won from the Long Beach Unified School District in a civil suit.

"I received a Facebook friend request last year from the woman who accused me of raping her, where she wanted to reconnect and, in her words, 'let bygones be bygones,'" said Banks.

After receiving this message, Banks hired a private investigator to set up and record their meeting, in which his accuser admitted to falsely accusing him. "From there I took that information to the California Innocence Project, who accepted my case. The rest is history, and here I am today, a free man," said Banks.

H. Michael's Take

More than ever - it has become apparent to me that the innocent - when faced with possible unconscionable outcomes such as life sentences based upon accusations of sexual assault or other violent crimes - plead guilty to avoid the risk of a run away jury. Their faith in the criminal justice system is so weak that they opt to take plea bargains ending any possibility of a normai life- in essence taking the lesser of two evils -the so called "Morton's Fork" decision.

The criminal justice system must reverse the use of the mandatory sentence "weapon" by the State - to permit these cases to go to trial and have juries hear the facts and decide the truth. In the absence of a fair and just system - the Brian Banks of the world will only multiply as forensic analysis such as DNA and other methods of investigation uncover those who make false allegations of sexual assault, domestic violence and other similar crimes that bring mandatory sentences into play.

May 22, 2012

El Paso County Has An Answer To The Colorado Domestic Violence Gun Ban - The PPIR Process - The Pre-Plea Investigation Referral

As A result of some 30 years of both prosecuting and defending Colorado domestic violence cases - I am more convinced than ever - that they are unfair and inequitable. Most unfair of these laws is the loss of the right to bear arms under the Lautenberg and Brady Bills, As a result of sometimes minor if not ridiculous domestic violence arrests - if the matter is not completely dismissed and in some cases - expunged - police and military officers lose their careers.

I have fought hard to turn this around for these brave men and women.

One county - El Paso County ( Colorado Springs ) has taken the most compassionate and reasonable approach to this untenable situation. They are to be commended and the other judicial districts should follow suit.

The program is called the PPIR Program - or the Pre-Plea Investigation Referral Program

This is how it works:

Pre-Plea Investigation Referral.

If a first offense without injury is charged, prosecutors may offer to defendant the option of a PPIR (Pre-Plea Investigation Referral). This assessment is then reviewed by prosecutors in determining the disposition to be offered in plea negotiations, including determination of whether or not to prosecute the case. In the best cases - the matter is dismissed.

The Pre-plea Investigation Referral Agency


2860 South Circle Drive Suite 115
Colorado Springs, CO 80906-4139
Phone: 634-1240 Fax: (719) 540-0174

Vicki Gorder, Brooke R. Kyzer, Virginia B. Lee
Joyce Randall, MA - director
Lolita Kelley-Bast - administrative assistant

Cost: $200 - $300 - Uses a sliding scale based upon income

Required Documentation is as follows:

Fromr the DA;s Office: PPIR DA Office discovery "packet" - police report - offense report

The Procedure Consists of 2 Appointments:

The First Appointment: approximately 2 hours - complete questionnaire & testing.

The Second Appointment: approximately 1 hour - interview with evaluator.

H. Michael's Take:

In this age of political correctness - - the DA in Colorado Springs should be commended for this intelligent, sensible and compassionate approach to the Domestic Violence Insanity gripping our nation.

September 3, 2011

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

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.

May 5, 2011

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

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

January 27, 2011

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

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

January 14, 2011

Lack of Consent to Teenage Sexual Contact No Defense for NFL Football Player

Sex offender registry awaits NFL's Lawrence Taylor

N.Y. (AP) -- Former NFL star Lawrence Taylor admitted in court to paying a 16-year-old runaway for sex as he pleaded guilty to sexual misconduct and patronizing a prostitute.

The 51-year-old ex-linebacker, who led the New York Giants to Super Bowl titles in 1987 and 1991, will serve six years' probation and must register as a sex offender.

"She told me she was 19," Taylor, standing with his hands clasped behind him, said Thursday in court as he admitted having intercourse with the prostitute, who turned out to be a Bronx runaway. Taylor said he now knows the girl was 16 and legally incapable of consent.He said he paid her $300.

Harry Carson, a former teammate and fellow Hall of Famer, was in the courtroom and gave Taylor a supportive handshake when he arrived.

Prosecutor Patricia Gunning said the plea deal was acceptable in part because Taylor had assisted in investigations into human trafficking since he was charged. Another prosecutor, Arthur Ferraro, said outside court that Taylor "was of assistance in the field of human trafficking in several jurisdictions and with federal authorities."

Defense attorney Arthur Aidala said that "obviously" included a federal case against the man charged with being the 16-year-old's pimp.

Aidala said Taylor decided the plea bargain was in everyone's best interest.

"He could have taken a much more aggressive road, but he decided it was in the best interest of he and his family and the young woman to put this behind him," Aidala said. "Mr. Taylor's not proud of what happened. ... He patronized a prostitute and that prostitute happened to be under the age of 17."

Taylor had resisted a plea deal for months after pleading not guilty to third-degree rape, patronizing a prostitute, sexual abuse and endangering a child.

Prosecutors said in December that Taylor had been offered a six-month jail term and 10 years' probation in exchange for pleading guilty to a felony. Aidala had called that offer unacceptable but said he would listen to any other offers.

Two members of the Giants' 1991 Super Bowl team are behind bars. Mark Ingram Sr., a star receiver, is spending nearly 10 years in federal prison for money laundering, bank fraud and bail jumping. And the electrifying kick returner Dave Meggett was sentenced last year to 30 years for criminal sexual conduct and burglary.

Taylor's trial would likely have started within a few weeks.

He was arrested May 6 after the underage girl's uncle contacted New York City police. Officers from Ramapo woke him at a Holiday Inn in Montebello.

Police said he was cooperative and no drugs were found in the room, although a bottle of alcohol was. Taylor has a history of drug offenses but has been to rehab and his lawyer says he has been sober for years.

"The whole L.T. persona, to me that's an act," Carson said before court. "I'm here for Lawrence Taylor. I'm not here for L.T. ... Once he went through some of the stuff he went through, he realized that was a hindrance to himself and his family."

In court, Carson, sitting in the front row of the gallery, reached over a low wall into the defendant's area and straightened Taylor's overcoat collar.

In a related case, federal prosecutors in Manhattan filed a complaint last year against a man who is accused of acting as the girl's pimp. Court papers in that case say Taylor admitted to sex acts with the girl but said he was told the girl was 19.

Ramapo police Chief Peter Brower said after Taylor's arrest that ignorance of a minor's age is not a defense to third-degree rape.Aidala had claimed that Taylor's arrest was illegal because police did not have a warrant when they burst into his suburban hotel room in May. Prosecutors said no warrant was required and state Supreme Court Justice William Kelly rejected the claim. But he granted a pretrial hearing on whether statements Taylor made upon his arrest were admissible. Aidala said in December he was relishing the chance to cross-examine the arresting police officers.

Taylor was inducted into the Pro Football Hall of Fame in 1999. A fierce, athletic linebacker, he redefined his position and was selected to the NFL's 75th Anniversary All-Time Team.

In 2009, he competed in ABC's "Dancing With the Stars." He had also been a spokesman for the NutriSystem weight-loss company, but he was dropped after his arrest.

Sentencing is March 22. That same day, state Supreme Court Justice William Kelly will determine what level of sex offender status Taylor will have. Aidala said he will suggest Level 1, which he said would mean checking in once a year with local police.

Aidala said he would seek to have Taylor's probation transferred to Florida, where the former player now lives.

H. Michaels Take

Here is a prime example of the unfairness of ancient statutory rape laws that have destructive consequences today. A young woman today can lie about her age, forge her driver's license, dress and act as if she is much older - have consesual sexual relations with an adult male and the law will NOT take into account ANY of those factors in proving the crime of Statutory Rape.

By law -- a child cannot consent under any circumstances. Therefore judges and juries are prevented - by operation of these laws - from exercising their discretion to take into account the surrounding circumstances of the contact.

England‟s first statutory rape offense, enacted in 1275, protected only females aged eleven and under. Some three hundred years later, during the reign of Elizabeth I, the protected class was reduced to females nine and under. The American colonies largely imported the English statutory scheme.6 "The idea behind such laws at the time was less about . . . [protecting the female from sexual exploitation,] and more about protecting white females and their premarital chastity--a commodity--as property."

As United States Chief Justice William Brennan explained, "[b]ecause their chastity was considered particularly precious, those young women were felt to be uniquely in need of the State‟s protection." From this "exaltation of female chastity," a statutory rape victim being unchaste, promiscuous, or not a virgin evolved into a defense that was soon "codified in every state,

It is time to modify and bring up to date these anacronistic laws...HMS

January 11, 2011

The High Price of Restrictive Federal Gun Laws in Colorado Domestci Violence Cases

A Fort Carson soldier Chester Duncan, who was featured Sunday in a Gazette investigation of troops who deploy with pending felonies, appeared in court Monday on leave from Afghanistan. He hoped for a light sentence that would ensure he could return.

The judge did not give it to him.

In 4th Judicial District Court, the 28-year-old specialist pleaded guilty to choking his wife and slapping his daughter.

The prosecutor had agreed to a plea deal she thought would allow Duncan to continue his tour as a combat engineer, hunting hidden roadside bombs and flying remote-controlled aircraft. The soldier would plead to 3rd degree assault -- a misdemeanor -- and receive a one-year deferred sentence, which meant if he went to domestic violence and child abuse classes, he would do no jail time and his record would be wiped clean in 12 months.

Both the prosecutor and defense attorney told the judge that it was the right move because Duncan and his wife had made amends, he had gone to Army family violence classes, and the couple had not fought since his arrest in the fall of 2009. In fact, while he was in court, she was going into labor with their third child.

"Is this what you want?" 4th Judicial District Judge Deborah Grohs asked Duncan, who stood before the bench.

Duncan said yes.

For defendants to take a plea agreement, they must explain to the judge what they did wrong.

Duncan, a soldier in the 3rd Brigade Combat Team, 4th Infantry Division, described how he got into an argument with his wife, then pushed her and held her down.

"Did you choke her?" the judge asked.

"Yes," Duncan said.

"Did you cause your wife physical pain?" the judge asked.

"Yes," Duncan said.

The prosecutor and defense attorney asked the judge that the assault charge not be categorized as a domestic violence crime, because under federal law, that would bar Duncan from possessing a firearm for the 12-month sentence, which began Monday.

"If he could not hold a gun, he may not be able to go back to Afghanistan," deputy district attorney Carrie Sample told the judge.

Duncan's public defender, Rory Taylor, argued that Duncan's case was not really domestic violence, just the unfortunate aftermath of a 15-month deployment in Iraq that had resulted in "a lot of tension."

The judge listened to the arguments, but said she was ultimately constrained by law.

"You are getting a very nice plea agreement," she told Duncan. "If you complete the requirements you will have no criminal record."

Then she sighed. After a long pause, she noted that Duncan and his wife were married at the time of the crime and he choked her until she was unable to breath.

"This is, indeed, an act of domestic violence," the judge said. "I have total sympathy for you and respect your service, but this is what it is, I can't make it disappear. I know it may mean your termination from the Army, but it is what it is."

She determined that the crime should be categorized as domestic violence.

It is not clear whether the Army will return Duncan to Afghanistan, or whether he risks being discharged because of his conviction. A spokesman for his brigade did not respond by press time to an e-mail request for comment.

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H. Michael's Take

This tragic circumstance highlights the unyielding nature of "all or nothing" federal gun laws whose passage was a knee jerk reaction to a powerful feminist lobby. By removing discretion from a judge - (here it occurs at the state law level - which charaterizes a case as Colorado "Domestic Violence") - based solely upon the identification of the victim and ignoring all other pieces of information in a case mitigating his actions - the state legislature prevents the judge from doing what the judge is elected to do... decide the case results.

Both the DA and the Defense Attorney must have known the judge could not disregard the law - which is mandatory - identifying this as a domestic violence case. This judge had no choice but to impose the domestic violence "tag" to the soldier's actions - thus - in my opinion - ending his military career.

The pendulum must swing back and judges must be allowed to do their jobs and answer for their decisions... and not wring their hands and blame the mandatory nature of Colorado's domestic violence laws..

This must change. Change begins with you - the voter.

November 21, 2010

Tough Sentence For Child Pornography in Colorado - Federal Prosecution

On May 27, 2010


DENVER - Wayne Cook, age 45, of Highlands Ranch, Colorado, was sentenced Tuesday by U.S. District Court Judge Robert E. Blackburn to serve 84 months (7 years) in federal prison for possession of child pornography, United States Attorney David Gaouette and FBI Special Agent in Charge James Davis announced. Following his prison sentence, Cook was ordered to serve 5 years on supervised release. Judge Blackburn also ordered Cook to participate in a sex offender evaluation program as well as register as a sex offender. Cook was also told that he is subject to unannounced searches, including his residence, vehicle, computer or other electronic media. The defendant appeared at the sentencing hearing free on bond. He was ordered to report to a Bureau of Prisons facility after designation.

Wayne Cook was first charged by Information on January 14, 2010. To be charged by Information a defendant waives the Constitutional right to be indicted by a grand jury. On February 1, 2010, an amended Information was filed. Cook pled guilty before Judge Blackburn on February 3, 2010. He was sentenced on May 25, 2010.

According to the stipulated facts contained in the plea agreement, on April 23, 2008, an FBI agent in Oklahoma, operating in an undercover capacity, connected to a "peer to peer" network, then searched for files of child pornography available for downloading. Further investigation revealed that the child pornography came from a Highlands Ranch address belonging to Wayne Cook. On October 31, 2008, FBI special agents executed a federal search warrant at the Highlands Ranch address. Agents seized a computer, which was later subjected to forensic examination. That examination revealed that the computer contained approximately 2,000 images and 30 videos of suspected child pornography. All of the images contained on the computer depicted children under the age of 12 years old.

The Cook case was investigated by Special Agents and Task Force officers with the Federal Bureau of Investigation's Innocent Images Task Force.

H. Michael's Take:

If you are prosecuted in the Federal System for Child Pornography - the penalties are very harsh as a result of a crackdown by Congress begun on 2004 on the proliferation of "Innocent Images."

These cases are very difficult and require a great deal of experience and understanding of the poissible defenses -- and - in the absence of a "workable" defense - negotiating with the United States Prosecutor for a reasoned - pre-indictment agreement.

April 27, 2010

How Far Can Colorado Judge Enter into Plea Bargaining Negotiations?

On April 26, 2010, a Colorado Judge was reversed on appeal after he improperly pressured a defendant into a plea bargain by threatening him with a lengthy sentence if the defendant chose to go to trial.

By stepping out of his role as "a neutral and impartial arbiter of justice" and becoming involved in plea negotiations in a criminal case, the Colorado Supreme Court ruled the defendant would be allowed to withdraw his guilty plea.

James M. Crumb, Jr. was charged with criminal impersonation and multiple felony theft and habitual criminal counts; if convicted of all charges he would have faced a 192-year prison sentence. At the last pretrial conference before Crumb's trial was to begin, Denver County District Judge Robert McGahey, Jr. told him it was his final opportunity to take a plea deal.

After telling the defendant he was speaking "more as a human being than as a judge," McGahey said he would be forced to impose the maximum sentence if Crumb were convicted at trial, but that he would have sentencing discretion if Crumb pleaded guilty. McGahey later said he was "not going to be a happy judge" if no plea deal was reached.

Crumb moved to withdraw his guilty plea 49 days later, arguing he felt pressured into it. McGahey denied the motion.

The Colorado Supreme Court reversed the lower court's decision.

"These improper comments appear to have influenced the defendant's decision to reconsider his earlier rejection of the offered plea and his ultimate decision to plead guilty," Justice Michael Bender wrote in the Supreme Court's opinion. "To allow this guilty plea to stand would run counter to the fair and impartial administration of justice." (from Law Week Colorado).

H. Michael's Take:

My take on this case is simple, this particular judge went too far in his involvement in plea negotiations. Colorado law provides that judges can be involved in plea negotiations to the extent that a proposed plea can be "run" by the judge to determine if the judge would accept the plea bargain proposed. Acting in that capacity, a judge properly advises the parties whether they are wasting their time by attempting to enter into an agreement before placing the agreement on the record in open court. In this case, the judge took his role in this process a little too far.. H

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