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February 9, 2012

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

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

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

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

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

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

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

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

H. Michael's Take

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

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

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

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

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

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

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

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

September 20, 2011

Colorado Court of Appeals Reverses Conviction - Breathes Life Into Colorado's Self Defense Laws

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The failure of a Jefferson County District Court judge to properly instruct a jury on the Defendant, Albert Montoya's right of self defense - will probably lead to a completely new trial trial in the 2006 murder case.

Albert Montoya, in October of 2006 - fled a party in Wheatridge Colorado and fired back at a crowd of individuals chasing he and a friend from the location.

One of the bulletts fired by he and the codefendant struck and killed high school senior Mackenzie Kingry, four days before her 18th birthday.

The Colorado Court of Appleas ruled that the Jefferson County District Court judge who heard the case was required to properly instruct the jury on Colorado's law of elf defense. He should have told jurors to consider the number of people chasing the pair when they responded with gunfire, said the state court of appeals.

"There was some evidence that . . . at least one other guest had a gun which he fired as the defendant departed the house," wrote Judge Dennis Graham in an August decision that was amended Thursday.

"It was incumbent upon the trial court to give a self-defense instruction which embodied defendant's theory that he believed he was threatened by multiple assailants," Graham wrote.
Montoya was convicted of first-degree murder with extreme indifference, reckless manslaughter, criminally negligent homicide and accessory to a crime.

The appeals court left the last charge in place but reversed Montoya's convictions on all .

Judge Steve Bernard disagreed with part of the decision, saying the jury knew there was a crowd chasing Montoya and Duran and wasn't prohibited from taking the size of the crowd into consideration.

"This instruction properly set forth the general principle that the jury was required to evaluate the totality of the circumstances," Bernard wrote. ". . . The jury was informed that defendant's self-defense theory involved multiple assailants."

]The Denver Post was the source of this blog entry.

H. Michael's Take

To sqaure the law in this area with these facts -- it is important to read the actual jury instruction on self defense in Colorado - I have included it here as it is read to the jury in a trial where self defense is asserted as an affirmative defense:

H:18 USE OF PHYSICAL FORCE-DEADLY PHYSICAL FORCE (IMMINENT DANGER OF DEATH OR SERIOS BODILY INJURY BY VICTIM)

It is an affirmative defense to the crime of (Insert name of crime) that the defendant used deadly physical force:

1. in order to defend [himself] [or] [a third person] from what he reasonably believed to be the use or imminent use of unlawful physical force by the other person,

2. he used a degree of force which he reasonably believed to be necessary for that purpose, and

3. he/she reasonably believed a lesser degree of force was inadequate, and

4. had reasonable grounds to believe, and did believe, that he or another person was in imminent danger of being killed or of receiving great bodily injury.

[The defendant is not required to retreat in order to claim the right to employ force in his/her defense.]

[The defendant is not justified in using physical force if:

1. with intent to cause bodily injury or death to another person,

2. he/she provoked the use of unlawful physical force by that person.]

[The defendant is not justified in using physical force if he/she is the initial aggressor, except that his/her use of physical force under the circumstances is justifiable
if:
1. he/she withdraws from the encounter, and

2. effectively communicates to the other person his/her intent to withdraw, and

3. the other person continues or threatens the use of unlawful physical force.]

[The defendant is not justified in using physical force if:

1. the physical force involved is the product of combat by agreement, and

2. the combat is not specifically authorized by law.]

In addition to proving all of the elements of the crime charged beyond a reasonable doubt, the prosecution also has the burden to disprove the affirmative defense
beyond a reasonable doubt.

After considering the evidence concerning the affirmative defense, with all the other evidence in this case, if you are not convinced beyond a reasonable doubt of
the defendant's guilt, you must return a verdict of not guilty.

Posted by H. Michael Steinberg | | Email This Post

February 6, 2011

False Allegations in California Case Illustrate Danger of Untested Domestic Violence "Allegations"

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On the heels of a young man's challenge to the custody of his child, a young woman in California complained - and the District Attorney's office charged - a felony domestic violence assault for allegedly smashing the victims head into a wall several times and threatening to kill she and her child.

As often happens in these cases, neither the prosecutor nor the police truly 'tested" or "grilled" the victim about her story before taking the case to trial. On the witness stand, the "victim" changed her story several times. The District Attorney, embarrassed at the false charges and the woman's complete lack of credibility, dismissed the charges two weeks into the trial.

It was too late, the accused, a 24 year old kitchen manager - already had lost everything -his job and his reputation. He demanded a trial - even though he was facing 5 years in prison - yes he was vindicated by a jury that actually clapped when the case was dismissed by the DA.

It is unknown in this recent case - February 2011 - whether the young lady was charged with making false charges. She should face the kind of fear and anxiety the Defendant felt.

H. Michael's Take:

The kind of travesty of justice that this case represents barely touches the surface of the problem of the overreaction of law enforcement to uncorroborated allegations of sex assault or domestic violence by an individual without "testing" the truth of the story - well before the case goes to trial.

http://www.colorado-domestic-violence-lawyer.com/Domestic_Violence_and_False_Allegations_of_Child_Abuse.html



Posted by H. Michael Steinberg | | Email This Post

December 31, 2010

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

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The Following verdict in a Colorado Sexual Assault Trial demonstrates the many levels of testimony that can be admitted in a trial .. it is instructive at many levels for that reason

Jury convicts Valdez of sex crimes Thursday, Dec 30th, 2010

DEL NORTE, Colorado ・A Rio Grande County District Court jury deliberated for four hours before the criminal incest trial of Arthur Valdez ended with a verdict of guilty on two counts.

Valdez, 39, has an address in Alamosa and is reportedly a registered sex offender with a previous felony conviction, which qualifies him for enhanced sentencing for a repeat offense.
A hearing regarding the habitual sentencing enhancer for Valdez will be held Jan. 12, 2011. His sentencing is scheduled for Feb. 9.

Assistant District Attorney Crista Maestas told the jury that, throughout the trial, they had heard testimony from the alleged victim; school officials who knew the young woman better than her own family did; expert testimony from a Colorado Bureau of Investigation (CBI) criminal laboratory analyst; the Sexual Assault Nurse Expert (SANE) who performed a physical exam on the girl, and from others who investigated the case.

Responding to defense allegations that the girl had lied and set her father up as an act of revenge, Maestas asked the jury, What did she (the alleged victim) get from this?・

He ended up homeless, she graduated and not a single family member was there. She had to undergo a horrible exam and tell her story repeatedly "why in the world would she possibly make this up?"

The defense claimed the alleged victim wanted revenge because she didn't have the relationship she wanted to have with her father. The defense admitted Valdez was not a model father to his daughter, but said he was not on trial for that. They claimed Valdez thought his daughter would try to set him up and deliberately stayed away from her or had others with him when they were together.

Defense attorneys claimed a CBI Analyst findings from a sample on a pair of underwear was inconclusive for bodily fluids and only uncovered skin cells.

Maestas countered that the analyst reported that they were enucleated cells of some sort. The CBI also reported that the YSTR analysis matched all 11 sites. The YSTR is a specific DNA match test for the presence of the male or Y chromosome and the identity of the Y.

With all sites matching, the analyst reported the DNA sample could only have come from the defendant or one of his paternal male relatives.


H. Michael's Take

In this case you have a classic frontal attack on the victim's credibilit. The defense lawyer did an excellent job and had much to work with in this case in the area of witness credibility. However, notice the prosecution's expert forensic evidence attack that went unrebutted for the most part.

The SANE nurse:

Sexual Assault Nurse Examiner (SANE) Programs were created whereby specially trained forensic nurses provide 24-hours-a-day, first-response care to sexual assault patients in either hospital or non-hospital settings.

These nurses go well beyond the care of the alleged victims - they collect forensic evidence traditionally performed in hospital emergency departments. They document injuries and physical evidence, they document the alleged victim's statements and their demeanor

The CBI - Colorado Bureau of Investigation Testimony

Here - even though the sample of the DNA evidence was questiionable - it was admitted and was most likely used by the jury to push the case over the beyond a reasonable doubt standard

Bottom Line: Defending an allegation of sexual assault is difficult under the best of circumstances -- defending such a case without expert testimony to counter the State of Colorado's nearly endless resources -- is daunting -- a war chest of defense funds is often necessary to mount an effective defense at times.

Posted by H. Michael Steinberg | | Email This Post

December 11, 2010

DA Stopped From Retrying Defendant After Mistrial Granted - The Protection of Double Jeopardy

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In a recent decision by the Colorado Court of Appeals, the DA was prevented from retrying a case when he sought and was granted a mistrial ...

Here are the facts:

The defendant was charged in a Colorado Domestic Violence case with assaulting his estranged wife and one of her friends, with threatening the wife, and with disturbing the peace. The trial court declared a mistrial during cross-examination of an alleged victim in the misdemeanor assault case against the Defendant who then filed an immediate appeal stating that a retrial would violate his rights against double jeopardy.

The trial court denied the moton to dismiss concluded that there was manifest necessity for the mistrial because the cross-examination question improperly provoked the jury into believing it was determining issues of immigration and domestic relations and because the risk of unfair prejudice to the prosecution could not be corrected just by instructing the jury to ignore the question.

The Colorado Supreme Court found that the defendant not only properly raised his double jeopardy challenge to retrial but that the defendant had a right, possibly of constitutional magnitude to inquire into the wife's understanding of the immigration consequences of a conviction.

H. Michael's Take

In this case the Defendant's theory of defense was that his estranged wife had fabricated the claims to gain leverage in a contentious custody battle involving the couple's infant son. At the beginning and again at the end of opening statement, defense counsel told the jury of the defense contention that the wife would "do anything," including making false claims against defendant, to keep custody.

The wife was the first witness against defendant. Defense counsel began cross-examination by asking several questions about the then-ongoing marriage dissolution and child custody proceedings. The prosecution objected - stating "we're here on a criminal trial not on the divorce case" - but the court overruled the objection and allowed this line of questioning to continue. While allowing defense counsel "a little bit of latitude" in this area, the court did urge counsel to "cut to the chase."

Further questioning established that the wife had taken the couple's son when she left defendant (before the nightclub incident) and the courts were deciding custody. Two questions followed:

Q. You know that [defendant] is from Africa?

A. Yes.

Q. You know that if he is found guilty of this he'll be deported? The prosecution objected before the second question was answered, stating it was "completely improper to bring that up in this proceeding." The court promptly ordered a recess.

Outside the jury's presence, the prosecutor moved for a mistrial. He argued the jury had been "irrevocably tainted" by questioning that was "a ploy to invoke sympathy for the defendant" and amounted to "probably the worst violation [he had] ever seen." Defense counsel responded that the question went to the "heart of our defense" and defendant was constitutionally entitled to ask it. Counseltold the court that she had spoken with defendant's immigration attorney, that this assault conviction would lead to deportation, and that the wife "knows all of that."

When the DA moved for a mistrial, the defendant objected -- the mistrial was granted and the defendant immediatley appealed.... and WON.

The importance of this case is that the defendant should be allowed using cross examination to expose the possible motivations for a report odf domestic violence to the authorities, When the judge shut that down and then granted a mistrial -- he was dead wrong. The Colorado Supreme Court went even further in it's analysis:

Criminal defendants have a right, of constitutional magnitude, to engage in "'otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness.'"

Posted by H. Michael Steinberg | | Email This Post

November 21, 2010

The Right to Refuse a Jury Trial - Is Not A Right At All in Colorado

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In a recent decision of the Colorado Supreme Court that involved what is called an interlocutory appeal - (that means an appeal that takes place DURING rather than after the tria) - the Colorado Supreme court reversed an order from the trial court granting defendant a bench trial over the People's objection. Defendant sought to waive his right to a jury trial under C.R.S. § 18-1-406(2), but the People refused to consent to the "waiver" of that right under C.R.S. § 16-10-101.

The Colorado Supreme Court held that the trial court exceeded it;s jurisdiction when it determined that a jury trial would subject defendant to a constitutionally unfair proceeding because he risked impeachment based on his prior felony convictions, which included a conviction for failure to register as a sex offender, and because the evidence at trial would reveal his history of drug use and his status as a confidential informant. In re People v. McKeel

H. Michael's Take

It is a little known fact and reality of everyday life of Colorado Criminal Defense Lawyers - that the District Attorney - the prosecutor - has a right to ask for a jury over the objection of the accused in a trial.

There clearly are occasions when tactically it makes sense to try a case to the Judge alone-A Judge will most likely ignore issues pertaining to a Defendant's criminal history instead focusing on the facts and the law of the case. A Judge also is much more careful to avoid bias and passion or be misled by collateral issues unrelated to the guilt or innocence of the Defendant.

Colorado's law CRS 18-1-406(2) - provides, "the person accused of a felony or misdemeanor may waive a trial by jury by express written instrument filed of record or by announcement in open court appearing of record."

The District Attorney's objection was under under section 16-10-101, C.R.S. (2009), which provides, "The [P]eople shall also have the right to refuse to consent to a waiver of a trial or sentencing determination by jury in all cases in which the accused has the right to request a trial or sentencing determination by jury."

The People contended that McKeel had not presented any evidence "that a fair and impartial jury cannot be selected from this community." They argued that if McKeel chose to testify, the trial court would give jury instructions to limit any unfairly prejudicial impact arising from his impeachment by prior felony convictions. The People also rejected the notion that the courts should presume that a jury would be unfair or biased toward defendants with drug-related issues that were collateral to the charges at issue.

The Supreme Court here held that the lower court went too far and exceeded it's jurisdiction when it determined that a jury trial would subject McKeel to a constitutionally unfair proceeding because he risked impeachment based on his prior felony convictions, which included a conviction for failure to register as a sex offender, and because the evidence at trial would reveal his history of drug use and his status as a confidential informant. Accordingly, the trial court's order was vacated and the trial court was ordered to set the matter for a jury trial.

The appellate court ruling was correct - because it followed the law - however the law should be amended to allow a Judge to do what we pay them to do -- judge the case before them and permit a waiver of a jury where the trial court knows a jury would struggle to be fair.

The impact of the ruling I am certain will deal a serious blow to the Defendant's chances at trial and will deny him a fair trial - as the jurors inthis case will have great difficulty separating the facts and evidence of the case before them from the Defendant's past.

Posted by H. Michael Steinberg | | Email This Post

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