Wednesday, December 20, 2023

Politics trumps justice?

             The unsigned decision disqualifying Trump from Colorado’s 2024 ballot confirms what experienced litigants know – politics often trumps justice. 

Whether you like Trump or not, the contentious 4-3 decision rests on weak factual grounds, shaky legal theory, and no compelling authority, and warrants anticipated closer review by the U.S. Supreme Court (which the decision's majority seems to dare).  

Three of the court’s seven judges (usually called justices at the supreme court level) dissented, that is, disagreed formally (and vehemently and at length), including its chief justice.  In sum, they object to the lack of required due process.  It was like using traffic court to convict for murder.  Excerpts follow:

“My opinion that [the case against Trump should have been dismissed] is dictated by the facts … particularly the absence of a criminal conviction ...  The questions presented here simply reach a magnitude of complexity not contemplated by the Colorado General Assembly for its election code enforcement statute. The proceedings below ran counter to the letter and spirit of the statutory timeframe because the [claim against Trump] overwhelmed the process. In the absence of an insurrection-related conviction, I would hold that a request to disqualify a candidate under Section Three of the Fourteenth Amendment is not a proper cause of action ….”  Chief Justice Boatright

“I have been involved in the justice system for thirty-three years now, and what took place here doesn’t resemble anything I’ve seen in a courtroom. In my experience, in our adversarial system of justice, parties are always allowed to conduct discovery [i.e. learn ahead of time about each other’s claims and evidence], subpoena documents and compel witnesses, and adequately prepare for trial, and experts are never permitted to usurp the role of the judge by opining on how the law should be interpreted and applied. …  [H]ow can we expect Coloradans to embrace this outcome as fair?”  Justice Samour

“Setting aside the factual questions, an insurrection challenge is necessarily going to involve complex legal questions of the type that no district court—no matter how hard working—could resolve in a summary proceeding.  And that’s to say nothing of the appellate deadline. Three days to appeal a district court’s order regarding a challenge to a candidate’s age? Sure. But a challenge to whether a former President engaged in insurrection by inciting a mob to breach the Capitol and prevent the peaceful transfer of power? I am not convinced this is what the General Assembly had in mind.”  Justice Berkenkotter

Sadly, the one judge majority apparently lacked the courage or courtesy to have its author sign the decision, dodging 2 million plus Colorado Trump voters.  In other words, one unknown judge disenfranchised all those folks.  This is even more stunning given this bench's recent public infatuation with so called Diversity Equity and Inclusion

Democracy doesn't work like that, and should be remembered next time all 4 majority justices - Richard Gabriel, Melissa Hart, Monica Marquez, William Hood - are up for re-election/retention.

The case is Anderson v. Griswold, 23SA300, 2023 CO 63 (12/19/23).

Monday, October 16, 2023

Operating an equine business

Riding lessons, horse training, shows, boarding or leasing at your horse property, this article discusses 5 steps to minimize risk and maximize success.

First is to make sure the property and facilities are well and timely maintained, in good repair, uncluttered, tidy and safe.

Second is signage.  When in doubt, post signs for visitors to read.  The main one is the equine activities waiver found at Colorado Revised Statutes (CRS) 13-21-119.  Others could be no outside dogs off leash, no petting/feeding animals not your own, "this horse bites," no alcohol etc.  Designate clear parking and trailer turn around areas.  

Third is to have signed and dated paperwork in place amounting to liability waivers/releases and hold harmless/indemnification agreements.   Everyone participating or attending should be asked to complete the forms.  Organize and keep hard copies on file.  

Fourth is paperwork confirming duties, responsibilities, expectations and obligations of the relevant parties.  For example, boarding agreements should specify who does what when and who is on the hook for injuries, vet bills, transportation, feed, tack, stall maintenance, daily care etc.  It should specify who is responsible for maintaining adequate damage, injury and liability insurance (usually the horse owner).  The more that is specified in writing the better.  Same for visiting trainers and the like, including who is responsible for matching horse and rider.  Keep it well organized, updated and in hardcopy files too.

Fifth is to (re)consider how the facilities are owned/operated and insured.  Some kind of corporate format may be best as it provides another layer of protection and organization.  Follow corporate formalities to maximize protection.  Tax, accountant and insurance professionals should be consulted.  If you have an insurance agent, ask him/her what equine activities are covered and not covered.  Supplement insurance as recommended.

Sanderson Law, P.C., is here to help.  303-444-8846.

Thursday, August 31, 2023

Colorado firearms transfers - some exceptions

Colorado mandates "background checks" for private firearms transfers, i.e., two people buying or selling or gifting a gun.  No surprise the background check requires a fee, in addition to paperwork (including nonsensical questions on the background check form itself) and creeping government oversight.

There are exceptions (buried in the legislation, for example CRS 18-12-112(6)).  One excludes "antique firearms."  What is an antique firearm?   Colorado incorporates the federal definition at 18 USC 921(a)(3) & (16), which is "any firearm ... manufactured in or before 1898" or replica thereof, and muzzleloaders.

Other exceptions include a gift between "immediate" family members, transfers relating to a will or trust, and various "temporary" transfers.

Failure to comply carries criminal and civil liability consequences (ironic since people who use guns to commit crimes tend not to care about such things).

Tuesday, August 22, 2023

On being pulled over by police...

It happens to all drivers sooner or later.  A flashing cop car shows up in your rearview mirror.  Now what?

First, quickly but safely pull over.  Use your signal and keep it on.  Keep your vehicle running and wait for the cop to approach your window.  Keep your seatbelt on, turn off the radio.

Next, roll down your window half-way, say hello, and wait for the cop to initiate the conversation.  Be polite, very polite.  No sudden movements.  

Don't answer questions relating to potential criminal activity, like Do you know why I pulled you over, Do you know how fast the speed limit is, Have you been drinking, etc.  Instead, ask the cop if he'd like to see your driver's license, insurance and registration.  Ask if this is a good place to pull over, if you should turn off your car.

Don't agree to anything you don't have to, like a search of the car, or roadside sobriety tests.  If unsure, ask him if you have to do any of the things he is asking you.  If not, don't do it.  If it's an order, do it.  Remain polite.  Keep a smile but don't look foolish.

As soon as he stops asking you questions etc., ask if you are free to leave, for your license etc. back, and thank him for doing his job.  Volunteer no information, and slowly be on your way as soon as possible.  

Assume you cannot talk your way out of a ticket.  Talking only makes it worse.  The cop is not there to chat.  If he gives you a ticket, take it politely without reading it and, if he says its ok, be on your way.  Don't argue, or get angry.

Next day, calendar the court date, and call a lawyer.  Tickets generally can be pled down to something more acceptable, and may be worth challenging (or at least having a lawyer look it over).

Thursday, June 1, 2023

Trial penalty

In criminal law, "trial penalty" refers to the potential harsh implications of exercising one's right to trial of the charges, as opposed to taking a deal (a so-called plea bargain).  

Mandatory sentencing, parole and a growing number of collateral consequences (job loss, can't own a firearm, restricted travel, can't vote, registering with local authorities, etc. etc.) make a conviction too risky.  And then there is the financial cost of proceeding through increasingly high stakes trial, with expensive expert witnesses, multiple investigators, numerous documents, the need for trial technology like computers and video, and of course hard working lawyers to pay. 

As a result, according to experienced attorneys (backed with statistics compiled by the influential National Association of Criminal Defense Lawyers) "the criminal justice system has been turned into a guilty plea factory.  So powerful is this penalty that even innocent persons will succumb to the threat of a worse outcome if they dare to risk the fundamental Sixth Amendment right to a trial."

Many trial judges are aware of this phenomenon and go out of their way to not impose additional sentence terms or length if possible (even matching the typical plea bargain sentences for similar cases).  Of course with mandatory sentencing - and political pressures - trial judges can only do so much.  The result is that prosecutors increasingly function as judge and jury too, which threatens faith and fairness in the criminal "justice" system.

Tuesday, March 14, 2023

Jury duty

If you vote, pay taxes, register a vehicle, own property, or the like, you probably will be summoned for jury duty someday, most likely in the county where you reside.  Consider it an important civic duty and don't sweat it.  Thomas Jefferson said it was the most important right in a free society.  How does it work?

Read the summons carefully (and bring it with you). Usually, they are pretty good about explaining at least the showing up process, where to park, how to handle your employer, etc.

Once there, your group probably will be shown a 15-minute video explaining the selection process and what to expect if chosen as a trial juror.  Bring a snack, water, something to read while waiting.  Know you'll have to clear courthouse security.  "Hurry up and wait" applies.  

Plan the whole day, but most likely you'll be home before noon.  This is because most trials settle or are continued (postponed) at the last minute.  There will be more potential jurors sitting around than needed, so most end up going home early.  Because most jurisdictions follow the "one day or one trial rule," you can't be summoned for jury duty again for a year.  

If selected as a trial juror, do what you think is best during the deliberations and politely stick to your guns.  Keep an open mind and don't rush to judgment.  It all about justice, and you may be the next person facing the jury.

Thursday, December 1, 2022

Police need a valid reason to stop you.

In two recent cases, Colorado's highest court considered whether police had "reasonable suspicion" to believe a driver violated a traffic rule (safe lane change) to justify a stop, vehicle search, and seizure of evidence (drugs).  

In affirming the police lacked reasonable suspicion - including based on its own review of a police cruiser dash camera video of the alleged improper lane change - the court upheld the lower trial court's suppression of the evidence (usually no evidence means the charges are then dismissed).

These cases are notable mainly because (1) required "reasonable suspicion" has been so watered down over the years as to be not much of a hurdle for police anymore, and (2) the court justices reviewed the dash cam video supporting the defense (i.e., contradicting police testimony).

Bottom line is that lack of reasonable suspicion can be a powerful defense to criminal charges, from the smallest to the most serious.

The cases are People v. Deaner and People v. Barrera, decided 9/26/22.