Cleaning out the e-mail box and found this gem from last year. I'd hung onto it so long because it's really, really, funny. I should add a bunch of commentary about how this relates to criminal law in Colorado Springs and then give a call to action about how you should contact a Colorado Springs Criminal Defense Attorney like me if you find your self in similar trouble, but really, I'm not too sure any of my readership will ever find himself or herself in a similar situation. So, without further ado, enjoy this old story about a man committing trespass, criminal impersonation and theft!
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That headline came from this Fox News story. I'm not sure what to say about this one, except "Wow." I mean, "Wowwwww!"
Anyway, this type of "issue" comes up (out) from time to time--some type of testimony or evidence that substantially impacts the ability of the jury to remain impartial. Generally, three Court rules will dictate what should happen.
First, in the event of some highly prejudicial evidence being adduced before a jury (intentionally or not), the Court will conduct an analysis under Colorado Rule of Evidence 403. The Court will essentially weigh the probative value (relevance) of the evidence against the danger of unfair prejudice to the accused. If the relevance of the evidence outweighs that prejudice, the evidence can go to the jury. If not . . . the judge can either strike the testimony or, if the damage has been done, move on to an analysis of whether a mistrial is necessary.
A mistrial occurs when the jury has been presented evidence or a scenario which renders it's ability to render a fair verdict unreliable. If that evidence or scenario happens, the judge makes a decision about whether the "taint" on the jury makes it a "manifest necessity" to start over. Those quotes indicate fancy legal terms. Basically, if the stuff that happens in trial is so unfair that a jury can't see past it, the judge says "do over". However, if it turns out that the DA caused the mistrial recklessly or on purpose, the rule against "double jeopardy" could apply and the prosecution would be barred from bringing the charges again.
So, there's your criminal law primer on Rule 403, mistrials, and double jeopardy. None of which I really wanted to talk about, but it flowed from the "wowwwwww."
I had another post all lined up and ready to publish, but this article in the Colorado Springs Gazette about our local DA failing to disclose evidence in a sex crime prosecution against a cop hit the wires and I thought it was just too timely and too relevant to not comment.
Colorado Rule of Criminal Procedure 16 dictates what information must be turned over by the prosecution to the defense and when it must be turned over. This flow of information, and the information itself, is known as "discovery". Rule 16 applies to all criminal cases from the most heinous murder cases to a Colorado Springs DUI case. While there is some discretion regarding what the DA must turn over, for practical purposes, the letter and spirit of the Rule dictate that the prosecution needs to turn over EVERYTHING!
Why? In the most broad terms, it's because our Constitution requires that a defendant be given a vigorous defense to protect against tyranny and corruption. It's because we want transparency in our government agencies. It's because the District Attorney is supposed to be the good guy. The guy in the white hat. While a Colorado Springs Criminal Defense Attorney is charged with zealously representing his client, the ethical dictates for a prosecutor are different--a prosecutor is to seek "justice". You know, the person that makes sure the rules are applied evenly. The person that ensures that justice is done. The person that is supposed to look at what is fair.
This is not the first time that our current DA's office has come under scrutiny for discovery violations. In 2010, we learned in a Colorado Springs Independent article that potentially hundreds of Colorado Springs DUI charges cases were prosecuted with faulty blood tests. Until Colorado Springs DUI lawyers fought to have the erroneous blood tests brought to light, the DA's office sat on it. And even after the problems were disclosed and the Crime Lab was decertified to test blood (it still is, by the way), the DA continued to prosecute those cases.
So, this new allegation continues a disturbing trend. What's most disturbing about it is that there are just two explanations. First, the DA's office is so inept that it is mismanaging evidence in a high profile sex crime case against a cop. And that's bad. Really bad. The second explanation is that the DA is intentionally hiding evidence. Which is much worse.
So, 2012 has rolled around and it's time for this Colorado Springs Criminal Defense and DUI Defense Attorney to clean out his in-box of the interesting stuff I never got around to writing about last year.
2011 was a big year for marijuana in Colorado, in both criminal and driving under the influence of drug (DUID) cases. A number of cops, DA's, "get tough on crime" legislators, and Department of Health folks pushed for a "legal limit" of THC to be set for blood. Actual scientists pushed back, rightfully claiming that the proposed limits could sweep up non-impaired, innocent drivers. The proposed legislation was tabled. Here's a good overview from the Denver Post.
Even though he wasn't driving stoned, this NASCAR driver found out that you can legally use marijuana and still be fired (or suspended) by your employers. The state will continue to push for limits in 2012 and the tension between medicinal pot use and employment policies isn't going to go away, so keep your eyes open. I believe, however, that the pendulum is swinging towards more expansive marijuana laws. And the reason is--not your civil rights. You guessed it. It's the other green stuff--MONEY.
The City of Colorado Springs was poised to take in an estimated $745,000 in application and licensing fees from pot shops last year. That doesn't even include sales tax. Question: Would you rather have a medicinally useful legal substance sold in a safe, regulated, tax generating establishment or by a bunch of thugs on a corner? That's what I thought.
In fact, in 2012, it looks like the pendulum will swing even closer towards complete legalization of marijuana possession with a recent poll indicating 49% of Coloradans support legalization, with only 40% opposing. See this Denver Post article. The legalization question looks headed to the ballot, and even the Colorado Attorney General thinks it will pass.
If you've read my blog before, you know how much I hate DUI checkpoints. They have minimal impact (the officers could be better utilized actually looking for erratic, unsafe driving) and are Constitutionally suspect. Well, the City of Colorado Springs agreed. I rarely agree with the Colorado Springs Gazette editorial board, but on the DUI Check point question, they got it right. After they printed this editorial, the outrage in the comments section caused the City to cease its participation in DUI Checkpoints. Don't get too giddy though, the State Patrol indicated they'll pick up where the city left off.
In more news, I've heard through the grapevine that the Colorado Legislature may be allowing common sense to enter into domestic violence prosecutions and give the cops, DAs and courts back some discretion to handle those situations on a case by case basis. I'll let you know if and when that becomes law.
Well, my e-mail is now empty. If you've been charged with a Colorado Springs DUI, Colorado Springs Criminal, or Colorado Springs Domestic Violence case, give me a call to see how to make the best of a bad situation.
One of the things I deal with every day in my job as a Colorado Springs criminal defense attorney is the toll addiction takes on our communities. It has a real sociological and financial impact. There was a time when our communities banded together and took care of those who had addictions and mental health issues--for example, Sheriff Andy and Deputy Barney looking after Otis when he fell off the wagon. That time seems to be slipping away.
In real life, it seems that while the new system is well meaning, it really "piles on" and can make it harder for those charged with DUI, Possession of Drugs, or an alcohol offense. Financially, for the average Colorado Springs DUI or DWAI case, a client is conservatively looking at $1200 in fines and court costs, $1200 in ignition interlock fees, $600 in alcohol class fees, $600 to $1200 in probation supervision fees, $75 in community service fees PLUS jail fees PLUS insurance increases PLUS lawyer fees PLUS lost income if the client goes to jail. And that's just on a first offense.
More important than the money, though, is the loss of self esteem, the shame, the family stress, and the work stress an El Paso County DUI or Colorado Springs Drug Possession case can cause. People lose their jobs for these type of offenses. There's a stigma to them as well. My most important responsibility, especially early on in a case, is to let my client know to take a deep breath, slow down, and educate him or herself about the process--because the uncertainty about the process is one of the main causes for my client's stress (and can be a trigger for further substance abuse problems). Once a client knows what he or she is facing, it's much easier to come up with a plan on how to make the best out of a bad situation. And, it's really important to assess whether there is an actual substance abuse issue or just some bad choices that have been made. That education and assessment process needs occur in every case.
With those societal and financial costs in mind, I found this article really interesting. It seems that in 1971, Massachusetts was cognizant of the need to treat those were struggling with substance abuse and dependence with a little more compassion than now. I understand that it might cost Foxborourgh a little more to control the rowdies after a big sporting event, but I'd think that is a million times offset by the tax revenue and lease fees having the stadium brings in the first place. It seems that reverting back to Mayberry wouldn't always be a bad thing.
First, no matter how ironic (poetic to some) this woman's arrest seems, she is a person--with all the good things and bad things that go with humanity. Many say she's a hypocrite. Maybe, maybe not. One thing is for sure. She is having a BAD week. I've represented cops, soldiers, pilots, firefighters, lawyers, doctors, school teachers, school administrators, and nurses on El Paso County DUI cases. It's not just college kids and alcoholics that get into trouble. And there are some things all of those clients have in common--they are scared, embarrassed, and troubled by their situation. And on many levels, they need support and compassion.
People have very strong feelings about MADD. I happen to think they have a great mission, but perhaps too much political clout. DUI laws have become some of the most onerous and burdensome around. When a first time DUI client has must serve a mandatory jail sentence, but a sex offender can get probation without jail, I think we should reassess our priorities and where we put our resources. That said, don't drive drunk in Colorado Springs. Or elsewhere.
I was talking with a client yesterday and he made the observation that it seemed like my primary job as a Colorado Springs defense attorney was to separate him from the rest of the defendants in court--to provide the human element of his life to those in power. I whole heartedly agreed. My main job is to get the "system" (the El Paso County District Attorney, or Judge, or probation officer) to view my client as a real live person instead of a case file.
No one deserves to be judged by what happens on the worst day of her life. No one is as good as the best thing he has done, nor as bad as the worst thing he has done. I think we'd all be a little better people if we kept that realization in our consciousness as we go through our days.
To briefly revisit yesterday's blog about Colorado Springs DUI cases: David Cassidy was recently arrested for DUI. That got me thinking about the common mistakes that clients make when they are contacted by the police for suspicion of Colorado Springs drunk driving cases and the things they can do to minimize the damage. I came up with a list of seven things a suspected drunk driver should do during and after police contact. We went through the first four yesterday.
For today's installment: 5 through 7 AND scoring David Cassidy on protecting his rights!
5. The police don't have carte blanche to search your car. If they don't have a legal justification to get into it, they will ask you for your consent to search it. DON'T give them that consent. Again, use your Fourth Amendment right!
6. In Colorado DUI and DWAI investigations, you DO have to take evidential breath test at the police station, or a blood test at the hospital, or a urine test if requested. If you refuse a Colorado evidential chemical test, you face a one year revocation of your driver's license. If you don't want to lose your license, take the chemical test.
7. Hire an experienced DUI or DWAI attorney to help you protect your rights.
Although DUI is probably the most common criminal charge the "average" citizen finds himself mixed-up with, it is also one of the more complex charges because it involves the Fourth, Fifth, and Sixth Amendment rights, as will as some complicated forensic evidence testing. So complex, the Colorado Springs Police Department's Metro Forensic Laboratory recently disclosed they had been certifying erroneous tests that were the basis for charging innocent people with DUI's and landing people in jail who didn't deserve to be there. Wow, the state test was wrong. Who woulda thunk it? But that's the subject for another blog.
Back to Mr. Cassidy, what did he do wrong? First, his driving was abhorrent and suggests impairment. Second, he admitted to drinking a certain amount. That amount is inconsistent with the actually alcohol concentration, so he appears that he not only admitted drinking, but then lied about it at the same time. Third, he admitted to using a controlled substance in addition to consuming alcohol. Although the pill he took may have been prescribed, it's no defense to driving under the influence. Fourth, he did the roadsides--poorly. Fifth, he let the police search his car. And they found a half-consumed bottle of bourbon under the driver's seat.
Every decision you make when the police contact you will be scrutinized. It's best to give them as little evidence as possible, invoke your rights, and hire a good attorney to help you untangle to situation later.
Although our legal system may be slow and frustrating at times, I believe it is the best in the world. Our founders had the foresight to set up a system that provides the rights to notice, to due process of law, to be free from unwarranted searches and seizures, to remain silent, and the right to be free from cruel and unusual punishment. Those rights, among others, arose because the founders knew that unless the power of the State could be checked, the State would engage in abuses. Explicit in the Bill of Rights and implicit in those rights themselves, is the right to representation--so that if you find yourself in the State's cross-hairs, someone who knows the law can ensure that your rights aren't trampled upon. That's Civics 101, right?
Apparently, Martin Beeson--who is the elected DA of Colorado's 9th Judicial District (and until recently was running for United States Congress)--missed that class. The Aspen Daily News reported last week that when Beeson was making his budget pitch to the Pitkin County Commissioners he got a little testy about his office having to prosecute cases defended by the public defender:
Asked about the public defender's budget after his Aspen meeting on Tuesday, Beeson criticized the office for abusing the 6th Amendment right to a defense counsel by needlessly frustrating the DA's efforts and using legal loopholes to suppress incriminating evidence against their clients.
"Public defenders are not defenders of the public," Beeson said. "They are not serving the public good. They are taxpayer-funded attorneys for criminals."
You can read the full article here.
Listen, I know sometimes defense attorneys get a bad name, and Public Defenders even more so. Sometimes, the guilty do go free so that an innocent isn't convicted. And, as a former prosecutor, I know how hard it can be to obtain a conviction. I also know that it should be hard to obtain a conviction because the State is impacting the rights and very freedom of the accused.
Mr. Beeson, I'm sorry if someone stands up to you. I'm sorry if you are frustrated by defense attorneys, judges, and the Constitution. But, if no one watches those in power, if no one is able to question those would have us named "criminals", if no one is able to test the proof that the State claims is evidence or the methods the State uses to obtain that evidence, then we are no better than a tyranny.
Mr. Beeson, the right to reprsentation isn't a "loophole". The Constitution demands it!
One of the questions potential clients sometimes ask me is: "Are you a good attorney?". I always answer the same way: "Well, I'd hire me!" and chuckle a little as I go on to explain that a better question to ask would be "Why should I hire you, instead of someone else?"
Why then, should a client chose one attorney over another? I'll let you in on a secret: while we lawyers do have an advanced degree and have demonstrated at least enough intelligence to pass the Colorado Attorney bar exam, being "rocket scientist" smart is not a prerequisite. We do have some technical knowledge that non-lawyers don't have, but it takes a lot more than that to make one lawyer better for you and your case than another. So here, in no particular order, are four points to consider when hiring a Colorado Springs Criminal Defense attorney:
1. Comfort and communication. You must feel comfortable when talking with your lawyer. Your lawyer is going to guide you through one of the hardest and most stressful times in your life and being able to communicate about what is going on is paramount. When I meet a prospective client, I block out at least an hour (and usually more for a Colorado Springs DUI case) just to chat with the client about "where" she is: her family life, her life's stress, her job, her financial status, her physical and emotional well-being, and--finally--the facts that led her to call me in the first place. I want my clients to feel comfortable and informed and in the initial consultation (the "getting to know you" session) I will encourage the potential client to meet with other attorneys just to make sure they find the one that is the best fit for them.
2. Experience. I would think this would go without saying, but when I was a supervisor at the DA's office, I once watched an attorney I was supervising try his first serious felony case against an El Paso County Criminal Defense Attorney that was so green she didn't know that if her client was convicted he was looking at a mandatory minimum five years prison! While everyone has to start somewhere, that start shouldn't be on your serious criminal case. Make sure the Colorado Springs Criminal Defense Attorney you are thinking of hiring has handled similar cases to yours before you enter the attorney/client relationship.
Hello and welcome to the Geoff Heim, Attorney, LLC, Blog!!
My new Colorado Springs DUI and criminal defense lawyer website will go live in about two weeks and I'm excited about the new ways that I can deliver information to my clients and prospective clients. I will use this blog to keep you informed of changes in the law, court and DMV procedures. From time to time, I will also comment on public cases and legal developments.
For instance, DUI laws changed significantly on July 1, 2010. Did you know that after July 1st, multiple offenders (two or more priors) must serve a minimum of 60 days jail? And that jail can't even be work-release unless the offender has already started a treatment program! Different judges are not implementing these new changes uniformly, so it is really important to hire an experienced Colorado Springs DUI lawyer that knows the Court system to help you navigate though your case.
I recognize that being charged with any crime, even the most minor traffic infraction or petty offense, can be a frightening and frustrating experience. A serious felony charge can be a life-changing event. My hope for this blog is to take some of the "mystery" out of the court process and provide at least a little bit of knowledge as clients and prospective clients work through their cases.