H. Michael Steinberg has over 32 years experience practicing Colorado criminal law. Mr. Steinberg strives to stay current with the ever changing aspects of criminal law issues and updates resulting in his extensive knowledge of successful criminal defense as well as appellate work. He is also an active member of the National Association of Criminal Defense Lawyers, the Colorado Criminal Defense Bar Association, the Colorado Trial Lawyer's Association, and the Colorado and Arapahoe Bar Associations.
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Refusing To Tesitfy in Colorado: The Changing Landscape

Credit for the Content of this article is extended to Colorado’s Channel 4 Online: and Alan Gionet
The recent trial of Willie Clark was delayed again by a witness who’s refused to testify. This time it was a man whose name Judge Christina Habas is forcing media outlets to refrain from reporting.

Prosecutors have placed the two in the Chevy Tahoe believed used in the New Year’s 2007 shooting death of Darrent Williams. Judge Habas has placed them all in jail.

The reason is contempt of court. It’s a tool judges can use to push people to testify. Your first question might be, can’t witnesses simply refuse? The answer is no. You only have a right against self-incrimination in the 5th Amendment. You have no choice when the court believes you may have information that may incriminate or exonerate others.

Judges have wide latitude to pronounce them in court, but not if they are concerned only about slights to their personal reputation. Often contempt is used in domestic cases. Judges will find people in contempt if they disobey a court order.

That’s a different type of violation than what’s happening in the Clark case. The difference is that in a domestic case, the action of defiance to a judge’s order occurred outside the view of the court. That means the charge has to be filed and the suspect proceeds through the court system as they would in most other cases.

In a situation in which a witness refuses to testify, guilt or innocence is cut and dried. The judge can make what’s called a “summary judgment.” The witness is brought into court and they’re given an opportunity to comply with the court order. If they choose not to testify, that’s summary contempt meaning it happens in the presence of the court, there’s no trial needed. If they refuse the court’s order they may be ordered to jail until they comply with the order to testify.

The case could go all the way to its conclusion without the reluctant witnesses ever testifying. Once the case is over the witness obviously cannot cure the problem. At that point because they’ve violated the court order the court can sentence them to jail again.

A judge can sentence a person convicted of contempt up to six months without triggering additional rights for the suspect. If Judge Habas wants them to do more time, they’ll have to be advised and be given the right to jury trial. But if convicted there, there’s no limit on the books in Colorado to the amount of time they could face.

The reality is that’s usually not done. Few, if any convicted of contempt for failure to testify ever do even six months time.

H. Michael’s Take:

Since this summarized article appeared online – the witness’s who refused to testify in the Clark trial were sentenced. The two men accused of lying to a Denver grand jury and refusing to testify during the Willie D. Clark murder trial pleaded guilty to criminal charges but continued to deny they were present when Denver Broncos player Darrent Williams was killed.

Mario Anderson and Kataina “Markie” Jackson-Keeling pleaded guilty to accessory to perjury and contempt of court after reaching an agreement with prosecutors.

The contempt-of-court charge carries a 90-day jail sentence, but the term will run simultaneously with a one-year sentence each witness faced for other charges arising out of the same case for the crime of accessory to perjury. The perjury charge arose after prosecutors also say the two lied to grand jurors investigating the murder by denying knowledge of the crime.

A material witness in a serious criminal case should seek the services of a Colorado Criminal Defense Lawyer before making the decision not to testify. As you can see from this high profile case – the decision not to testify can have serious and long term consequences.