Expert testimony in defending sex assault cases.

     The following comes from a Colorado Court of Appeals case announced 10/9/14, People v. Brown,  permitting a defense expert to testify regarding defendant's likelihood of being the offender.  Prosecutors make frequent - often questionable - use of "experts."  As can be seen here, defense expert testimony can help too: 

“B. Defendant’s Expert Testimony

¶31      Trial courts have broad discretion to exclude expert testimony if it is unreliable or irrelevant, or if its probative value is substantially outweighed by the danger of unfair prejudice. People v. Ramirez, 155 P.3d 371, 378 (Colo. 2007). We will not disturb the trial court’s ruling unless it is manifestly erroneous. Id. at 380.

¶32      All relevant evidence is admissible unless the United States or Colorado Constitutions, statutes, or court rules provide otherwise. CRE [Colorado Rule of Evidence] 402. Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” CRE 401; accord Jones, ¶17 (admissibility of evidence does not depend on a specific theory of relevance).

¶33      Here, defendant sought to admit testimony by a psychologist who performed a sex offense specific evaluation of defendant. The psychologist’s report found that (1) defendant had a sexual interest consistent with the interests of the general adult male population of the United States and (2) defendant’s interest in voyeurism was not significant enough to classify him as abnormal.

¶34      The trial court excluded this evidence because it was irrelevant and an attempt to “back-door” an opinion that defendant was not guilty of the charged offenses.

¶35      Evidence that defendant did not have a statistically significant interest in voyeurism would tend to make it less probable that he videotaped the victims for the purpose of sexual gratification, which is an element of the offense of unlawful sexual contact. The evidence was therefore relevant to that charge.

¶36      Further, at a pretrial hearing, defense counsel and the psychologist made clear that the psychologist would limit his testimony to the results of his evaluation. They added that the psychologist would not express an opinion about defendant’s guilt or innocence of any charge.

¶37      We therefore conclude that the trial court abused its discretion when it excluded the psychologist’s testimony concerning the charge of unlawful sexual contact. The trial court should allow defendant to present such evidence on retrial.”

            If you or someone you know is charged with a crime, call Sanderson Law, P.C., or email arl@sandersonlaw.net, to help.  303-444-8846.

Can alimony (maintenance) be modified after divorce in Colorado?

Possibly.  If the parties' separation agreement provides for contractual maintenance (formerly known as alimony), which is typical, they likely have agreed maintenance may not be modified later.  If there is no such agreement, for example if maintenance was resolved by the judge issuing permanent orders, CRS 14-10-122(1)(a) applies and states in relevant part:

maintenance may be modified only as to installments accruing subsequent to the motion for modification and only upon a showing of changed circumstances so substantial and continuing as to make the terms unfair, ...   The provisions as to property disposition may not be revoked or modified unless the court finds the existence of conditions that justify the reopening of a judgment. 

Modification of maintenance must be based upon the parties' needs and circumstances at the time  rather than speculation about future conditions.  The trial court is without authority to modify a decree unless the threshold requirements of changed circumstances and unconscionability are established.  The statute above makes it even more difficult to obtain modification of property division, in the interest of finality.

The party seeking a modification bears a heavy burden, intended to discourage repeated or insubstantial motions for modification.  Failure to meet the heavy burden results in denial of modification.  Also, where the alleged change in the circumstances of the parties is one that the judge anticipated and made allowance for when entering the original divorce decree, such change is not a ground for modification. 

In exercising jurisdiction to modify maintenance courts will proceed with caution, and unless the evidence clearly shows that the original decree is no longer fair and just, it likely will not be changed.  

 

Withdrawing a guilty plea.

The law presumes legal proceedings are valid.  As courtrooms become more crowded and dockets busier, this presumption has become even tougher to overcome.  This is especially true with efforts to withdraw a guilty plea in a criminal case.  Judges simply do not have the time or inclination to "undo" what's been done.

Fortunately expediency still is not the sole consideration and due process requires a method to undo guilty pleas that are constitutionally suspect.  State and federal rules of criminal procedure provide a method to withdraw a guilty plea - even after sentencing - in circumstances where it would be just, although the task is usually a longshot in any event.

The longer one waits of course the less likely becomes any chance for success.  Wait too long and one may be barred altogether.  The most fertile grounds to investigate typically are the allegations underlying the charged offense (did a crime really occur), the judge's and/or prosecutor's rights advisements (required) before and during the plea hearing, and any colloquy between the judge and the defendant during the hearing especially if the defendant did not have a lawyer.  The analysis is quite technical and an experienced criminal defense attorney should be employed to handle the matter.

A tricky issue is whether the sentence can be put on hold - stayed - while the motion to withdraw the plea and related proceedings are investigated, prepared and otherwise pending.  This all takes time - weeks and months - and may not make sense if the sentence is executed meantime.  The law empowers the courts to stay a sentence pending further proceedings and this avenue should be pursued as necessary.

If you or someone you know wants to consider a plea withdrawal, call Sanderson Law, P.C., for advice and help.  303-444-8846.

Will Ex-Boulder Cop Sam Carter Appeal?

Convicted yesterday by a Boulder jury of all counts including three felonies relating to his shooting and killing of an elk in the city, Sam Carter is fortunate to be out of jail (on a personal recognizance bond) pending sentencing in late August.  Meantime he will have to meet with the Boulder probation department as it puts together its presentence investigation (PSI) report recommending to the judge the sentence he might impose.  Prison time is possible though given his lack of criminal history and the fact that no mandatory minimum prison sentences are at issue here, it is unlikely.  Some local jail time is more probable.

He has the right to appeal the conviction and/or the sentence to the Colorado Court of Appeals.  Issues could include, for example, the numerous jury instructions (written statements explaining applicable law read to the jury by the judge) - which appellate judges seem to love to analyze for mistakes - or evidentiary rulings which kept portions of the defense case from the jury. 

Such appeals can take a year or so to complete.  Historically, the "success rate," i.e., the chance of a reversal, is just under 25%.  Every case is different of course and much depends on the particular facts and rulings in the case.  Appeals are expensive because they take so much time to put together, including loads of legal research and brief writing and re-writing.  Oral argument to the three-judge appeal panel also requires significant preparation. 

Generally, appeal beyond the Colorado Court of Appeals, that is, to the Colorado Supreme Court, is discretionary with that court and is even more of a long shot.  Historically, the Colorado Supreme Court accepts just under 10% of the cases appealed to it.

Assuming Carter's police union-provided lawyers are covered through an appeal as of right, he doesn't really have anything to lose by doing so (especially if he remains out of custody during the appeal process, which is likely).

How risky are you?

Litigation - the process of trials and hearings where the outcome is determined by judge or jury - is fraught with risk.  Whether a civil or criminal case, client and lawyer continuously engage in a risk versus benefits analysis in deciding how next to proceed.  The following thought experiment demonstrates some of the points.

Assume you find yourself on The Price is Right, holding a box containing a 4-year prison sentence which you must complete.  On stage are 3 identical looking boxes and you cannot tell what is inside.  The first happens to have in it a "get out of jail free" card, meaning if you choose that box you do no prison time.  In the second box is a 4-year prison term (the same you are facing now), and in the third box is a 10-year prison term. 

Would you take the opportunity to exchange the box you are holding for a choice of one of the three on stage?  If you say no, you are "risk averse" and will take a plea or settlement offer pretty quickly.  If you say yes, you have done the math and concluded you "only" have a 33% chance of doing worse, perhaps a risk worth taking.

What if we change the scenario so that both box 2 and 3 have 10-year prison sentences?  If you say yes to choosing you are risky, willing to serve a 10-year sentence in the hope (against the odds) that you do no time.

What if we add a box, so that there now are 4 boxes on stage, one of which has the get out of jail free card, one which has the 4-year sentence, one which has a 10-year sentence, and one which has a life sentence?  How does that change your answer?

What if you have to pay to choose (i.e. to pay the lawyer trying to maximize your favorable odds)?  Does that change your analysis in each of the above scenarios?  How much would you pay? 

What if, in addition to paying to choose, you had to wait six months to make your choice?  Does the time factor play into your analysis?

Note that guilt or innocence, right or wrong, whether someone is a "good" or "bad" person, play no part in this experiment.  At some point, the kind of risk-benefit analysis demonstrated above influences the outcome of most any criminal or civil matter.  How risky are you?  Don't go it alone, Count on Sanderson Law, P.C., to help.  303-444-8846.

What does a defendant need to know before agreeing to a plea deal?

     Most criminal cases - close to 90%  at the state and federal level - resolve by way of a plea agreement or "plea bargain."  Typically the prosecution gives up the right to seek conviction on more charges, or mores serious charges, or a more severe sentence.  In exchange, the defendant gives up a host of procedural rights including as discussed below, and subjects himself or herself to the consequences.

     Specifically, before accepting any plea agreement between the prosecution and defense, the judge is required to make sure -

1.  That the defendant understands the nature of the charge and the elements of the offense to which he/she is pleading and the effect of his/her plea;

2.  That the plea is voluntary on defendant's part and is not the result of undue influence or coercion on the part of anyone;

3.  That the defendant understands the right to trial by jury (if applicable) and that he waives his right to trial by jury on all issues;

4.  That the defendant understands the possible penalty or penalties;

5.  That the defendant understands that the court will not be bound by any representations made to the defendant by anyone concerning the penalty to be imposed or the granting or the denial of probation, unless such representations are included in a formal plea agreement approved by the court and supported by the findings of the presentence report, if any;

6.  That there is a factual basis for the plea. If the plea is entered as a result of a plea agreement, the court shall explain to the defendant, and satisfy itself that the defendant understands, the basis for the plea agreement, and the defendant may then waive the establishment of a factual basis for the particular charge to which he pleads; and

7.  That in class 1 felonies (i.e. the most serious level felony), or where the plea of guilty is to a lesser included offense, a written consent shall have been filed with the court by the district attorney.

    Defendants must understand their rights and what they give up before agreeing to any plea deal.  Good defense lawyers, like Sanderson Law, P.C., 303-444-8846, can help.

Defending against white collar criminal charges.

Defending “white collar” crimes – when taking money isn’t stealing

White collar crime is defined in Black’s Law Dictionary as “law violations by corporations or individuals including theft or fraud and other violations of trust committed in the course of the offender’s occupation (e.g., embezzlement ….).”  It defines embezzlement as “willfully to take … another’s money or property, of which the wrongdoer acquired possession lawfully, by reason of some office or employment or position of trust.”

Colorado’s embezzlement statute - “embezzlement of public property” - is at CRS 18-8-407 and requires proof of knowing conversion by a public employee of public monies or property (note fraudulent intent is not required). 

Charges of embezzlement at the state level in Colorado not involving public employees are incorporated into the theft statutes at CRS 18-4-401 et seq., per CRS 18-4-403.  It’s a felony if it involves $2,000 or more.

Embezzlement is a form of theft historically based on the relationship between the wrongdoer and the victim.  That relationship is not as significant now, nor are any of the historical distinctions involving what used to be known generally as “larceny.”

Defense firms don’t like the phrase “white collar crime.”  It’s not much of a definition.  It’s really a media, editorial or political phrase.  It’s a way to put a bad spin – a negative label – on the accused.  People, jurors, even judges, may sympathize with a robber (guy robs a liquor store to get money for his drug habit, food, rent, etc.) versus the guy who allegedly steals millions as part of a mortgage scheme and supposedly lives it up somewhere.

In any event, so-called white collar crimes are defended best like most serious criminal cases - by identifying and attacking the “seams” of the prosecution’s case.  One of the most obvious is intent, or lack of it.  Others include defining the conduct away from criminal conduct, hammering the definitions and elements of the charged offenses, putting forth other plausible non-criminal explanations, minimizing amounts involved (to reduce the severity of the charge), focusing on the lack of evidence.  Every case is different.

A good defense team – lawyer, paralegal, investigator – learn the business of the accused, the documents, the players, the details, better than the prosecution (we have the benefit of talking directly with the accused).  Federal cases are tougher because they have more prosecution resources, longer investigations, shorter trial dates, more severe consequences.

One of the biggest issues – biggest seams - with white collar crimes is the discretion in charging them - what the prosecution thinks is criminal intent may not be.  If you can get the case looking more like a civil matter – as many of them really should be - good things can happen.

 Why are some “theft” cases prosecuted criminally and others not?  If a person doesn’t pay his doctor or his lawyer for services, is that theft?  If you run out before paying for a meal at a restaurant, is that theft?  If you pay a contractor and he only does half the job, or a half-decent job, is that theft by the contractor?  If someone misses a mortgage payment, is that theft?  Is the amount involved relevant?  The social status of the person accused, or the victim?  Ending up with someone else’s money isn’t always stealing.  Each case is different - fact-specific - and facts make the difference. 

The legislative/political trend is to make it easier to convict at both the state and federal level, starting with lumping “embezzlement” and other historically different forms of larceny together under the theft statutes, to increasing efforts to water down the need to prove a mental element like intent, aka mens rea.  The National Association of Criminal Defense Lawyers issued a report in 2010 focusing on “shoddy lawmaking that is systematically diminishing the criminal intent requirement – a moral anchor of the American criminal justice system,” citing among others a Florida statute that removed the mental elements of intent and knowing from drug possession (admittedly not the stereotypical white collar crime but alarming nonetheless).

This trend makes it even more important that defense firms continue aggressively to stand up for the accused and make the prosecution prove their cases.

 

(Excerpted from a recent talk given by lawyer Dave Sanderson to the Boulder County Bar Association, discussing defense of white collar criminal charges).

Enforcing plea agreements.

Most criminal cases are not tried, resolving instead via plea agreement.  Typically criminal charges are reduced or dismissed, or sentencing concessions given, in exchange for a plea of guilty or similar.  Negotiating agreements with prosecutors is an art form, requiring patience, nuance and knowledge.

Plea agreements are interpreted according to contract principles.   Normally, when the prosecution fails to adhere to a plea agreement, the trial court will enforce the prosecution's promise.  Promises a prosecutor makes that are integral to plea dispositions must be kept. 

 

A plea agreement is more than merely a contract between two parties, and must be attended by constitutional safeguards to ensure that a defendant receives the performance that he is due.  These safeguards are embodied in due process principles that require the enforcement of almost all plea agreements in which defendants reasonably and detrimentally rely on prosecutorial promises and fulfill their side of the bargain. 

Determination of the meaning of a plea agreement and whether a party has breached it are matters of law for the trial court (subject to appellate review).  Ambiguities must be construed in favor of the defendant and against the government. 

 

Where there is detrimental reliance on the prosecution’s (or other government agent’s) promise – i.e. where the defendant has lived up to his or her side of the agreement - the defendant may be entitled to enforcement of the agreement (known as specific performance). 

 

Procedurally, if the prosecution fails to live up to its end of the agreement, a written motion to the court explaining the agreement, the prosecution's failures, and asking that the agreement be enforced, is in order.  Call Sanderson Law, P.C., 303-444-8846, when you or someone you know needs legal help.

Responding to an SEC Investigation.

The federal Securities and Exchange Commission oversees the nation’s securities markets.  It is well-funded and has the resources aggressively to investigate and enforce alleged violations of the numerous and complex securities laws and regulations.  It has offices around the country including Denver.

Investigations typically start with a letter requesting documents and other information, or (eventually) a subpoena compelling the production of that material and possibly testimony.  Subpoenas can also go out to third-parties, like accountants, former employees, customers and others who may have relevant information. 

 As with most government regulators, the SEC should not be considered merely a neutral fact-finder as it also has enforcement powers – including for example fines, the payback of monies, and far-reaching injunctive relief.

Though typically civil in nature, SEC proceedings can lead to criminal charges at the state and federal level.  The SEC usually gets involved by way of a referral from another law enforcement agency, a tip from some other person, computer-monitored trading practices, and even media reports.  Most cases with the SEC are settled.  However, the closing of an SEC investigation does not in itself preclude the possibility of other civil or criminal actions by other state or federal agencies.

Responding to SEC (and most any regulator) investigations and related proceedings requires a prompt, careful and global strategy.   Experienced, reliable and responsive legal counsel can make a huge difference.  Count on Sanderson Law, P.C., 303-444-8846, to help.

Latest Changes to DUI Driving Penalties

Starting January 1, 2014, the Colorado DUI-related driver’s license consequences have changed (again).  Here are some highlights:

- First offenders (no prior DUIs) over 21 with breath or blood test results under 0.15 face a 9 month revocation and after one month are eligible to drive up to the remaining 8 months with the interlock device installed (requiring a breath test to start the vehicle);

- first offenders over 21 with a result 0.15 or higher face similar consequences except the interlock period is two years and cannot be shortened. 

Cases involving breath/blood test refusal, prior offenses, people under 21 years old, and/or commercial driver’s licenses, implicate additional consequences not readily summed up and can be very fact-specific. 

These days, DUIs are being treated more seriously than ever by MVD, prosecutors and judges.  It is best to retain an experienced lawyer to help you navigate the license and criminal consequences.