How Does a Criminal Trial Work?

Most criminal cases - "more than 97%" according to the Nat'l Assoc. of Criminal Defense Lawyers - don't make it to trial; they plea bargain, which means the defendant gives up the right to trial in exchange for concessions from the prosecution.  When they do go to trial, it is most often to a jury (six jurors in misdemeanor cases and 12 in felonies).  Trials to a judge, called bench trials, are rare since a conviction requires that all the fact finders agree and as a defendant on trial it is better to require 12 people to decide you are guilty versus one person.

The trial day begins with preliminary matters such as witness and exhibit discussions, evidence questions, and pre-trial motions.  Next comes jury selection, where the prosecution and defense spend time under judge supervision vetting potential jurors.  This usually takes a couple hours, resulting in the jury being empanelled.  In most instances by noon the case is ready to go.

Opening statements follow.  These are non-evidentiary outlines to the jury by each side, telling them what they might expect the evidence - witnesses, exhibits - to show.  Throughout trial the prosecution carries the burden of proving the case and therefore goes first.  Opening statements typically are limited by the judge to 15 or 20 minutes each.

Then come the prosecution witnesses, first for direct examination, then cross examination by the defense lawyer, and followed up as needed with what is called redirect examination.  Exhibits may be introduced into evidence for jury consideration later.  In some cases the jurors themselves may submit written questions through the judge.

When the prosecution is finished, the defense has the chance to make various motions to the judge challenging the sufficiency of the evidence to that point.  These usually are denied. 

Then comes the defendant's turn.  The defense can make its opening statement at that point if it hasn't already.  Because the defendant may remain silent and otherwise is not required to introduce any evidence (and the jury repeatedly is instructed about this by the judge), defense witnesses etc. may or may not follow, subject to the same evidence rules and objections as the prosecution.  The defense then rests.

The prosecution now has the chance to rebut the defense case with additional witnesses or other evidence, as it feels necessary.  Ultimately the prosecution too rests.

Next the parties discuss and argue before the judge over jury instructions - lengthy written instructions from the court about how jurors should deliberate, treat evidence, what they may or need to consider, burdens of proof, etc.  This might take an hour or so.  Once the instructions are finalized (including objections noted for possible appellate review later), the judge reads them to the jury. 

Finally, the lawyers make closing arguments to the jury, again lasting 15-20 minutes each with the prosecution allowed to go first and last with a rebuttal closing.  The jury then goes to a separate room for deliberations, questions and verdict.

Most misdemeanor cases take at least a day and a half to conclude.  Of course they can take days longer.  Felony cases can last a week or more.

Trials are risky business and require a great deal of preparation and strategizing.  Call Sanderson  Law, P.C., 303-444-8846, if you or someone you know needs experienced legal representation.

Attorney Liens - 10 Real World Tips

     As valuable service providers attorneys too have the right to get paid.  Liens are a way to enforce that right.  In the real world, attorney liens sound better than they work, and they are fraught with risk.  Here are some tips to minimize trouble:

1.  Although it is customary to assert both, it usually is the charging lien that matters most.  A lien is  a “claim or charge on property for payment of some debt, obligation or duty.”  Black’s Law Dictionary (West 1979), p. 832.   Most state statutes provide for two kinds - a charging lien and a retaining lien.  For example in Colorado, see CRS 12-5-119 and 12-5-120.  A charging lien is one "on any money, property ... claims and demands ..., on any judgment they may have obtained or assisted in obtaining, in whole or in part, and on any and all claims and demands in suit for any fees or balance of fees due or to become due from any client."  The retaining lien is "for a general balance of compensation upon any papers of his client which have come into his possession ... and upon money due to his client in the hands of the adverse party in an action or proceeding in which the attorney was employed from the time of giving notice of the lien to that party." 

2.  Accurate written notice of lien duly must be given, and filed in court as appropriate.  The lawyer can enforce the lien via motion in the context of the court case he or she handled (or is handling) for the client, or via a separate civil action.  The enforcement procedure otherwise is not well delineated or prescribed.  Generally it resembles a motion for summary judgment and should be handled accordingly.  At the outset, move to seal the file or at least limit public access.

3.  The lien is only as good as the underlying fee agreement and to that extent arguably subject to the rules that govern them.  If the lawyer has withdrawn from a court case giving rise to the lien, such withdrawal must have been justified (and approved by the court) and otherwise be completely consistent with the fee agreement.

4.  It is customary for the lien to generate all kinds of boundless and timeless scrutiny, counterclaims, accusations and grievances - valid or not.  Proceed accordingly including making sure the file supports the lien and the potential recovery is worth the brain damage.  Consider having an experienced lawyer outside the firm look over the file before pursuing the lien.

5.  Once the lien is pending, alternative dispute resolution should be considered (and likely will be required by the court anyway).  Non-binding mediation is preferred as it is quick, inexpensive, confidential and gentler on the parties.  A bad settlement may be better than a good judgment.

6.  Consider requesting the appointment of a special master if the underlying case involves particular areas of legal expertise.  For example, not all judges are versed in the nuances of a personal injury practice.

7.  It can take a year to resolve the lien (i.e. to determine its validity, amount, and enforcement), more of course if the judge overseeing the matter is slow to rule or there are appeals.  Expect at least one evidentiary hearing.

8.  The lawyer's (and staff) time spent on the underlying case will have huge influence on the validity and amount of the lien.  Accurate time records must be available.  Contemporaneous records are better than not, and non-contemporaneous records are better than none.  Bundling of time - the grouping of services reflected in a single time measurement -  is not preferred but is acceptable (although it may carry less weight with the judge).

9.  The case file of course must be tight, consistent and supportive before commencing the process, but don't expect the judge to read through every page.  Consider using affidavits to summarize services provided, time spent, costs incurred, client difficulties encountered, etc. 

10.  Expert evidence (most likely affidavits) may be necessary to support the lien (and counter it), but remember the lawyer who handled the case and client is the best expert and should assert him or herself as such throughout the process.

     Attorney liens are tricky.  Experience counts.  Call Sanderson Law, P.C., 303-444-8846, if you are considering one.

 

         

Discontinuing Sex Offender Registration

Periodic and regular address registration with law enforcement is mandated by the harsh and broadly applied "sex offender" sentencing laws here in Colorado and most states.  This can have long-lasting hurt on the person's ability to find housing and employment, among other things.

Recognizing this, Colorado and other states allow the person to ask (petition) a court to discontinue registration for many such offenses.  Generally three factors must be shown via a form petition. First, that a certain period of time has passed (10 years for example).  Second, that the person has not re-offended and has been in compliance otherwise.  Third, that notices required by the applicable statute (to the victim, law enforcement etc.) duly have been given.

The Colorado statute is CRS 16-22-113.  It requires the court to hold a hearing once the petition is filed and served, but is silent on what - presumably in addition to the information in the petition - must be shown or proven.  Appellate courts have decided the judge at the hearing has broad discretion to grant or deny the petition even if, so to speak, all the boxes on the form petition are checked.  Factors considered may include objection by the victim, other offenses by the petitioner, lack of compliance with other sentence terms and conditions, and the like.  We suggest having supporting witnesses testify on these factors at the hearing, and to opine on the person's likelihood of not re-offending in the future.

Like all things sex offense related, assume the judge and prosecution will not be sympathetic and will look for ways to deny the petition.  Prepare accordingly.  Better yet, call us here at Sanderson Law, P.C., to help.  303-444-8846.

How does a civil lawsuit work?

     A civil lawsuit is where the plaintiff - the party starting the action by filing with the court a written complaint - must prove claims against the defendant or defendants usually by a "preponderance of evidence" (as opposed to "beyond a reasonable doubt" in criminal matters).  Here a preponderance means more evidence than not.  A jury may be requested, otherwise the matter is tried to a judge.  Most cases settle before trial. 

     Discovery is the process that begins soon after, whereby both sides may obtain information from the other - via depositions, written questions (called interrogatories), document requests, requests that matters be admitted or denied, and related procedures.  This process can take many months.  Mediation or another form of "alternative dispute resolution" typically is ordered or agreed to take place soon after to afford the parties a less formal opportunity to resolve the case or claims sooner than later.

     Motions - written requests by the lawyers to the judge to rule on various issues - may be undertaken during the case, including for example to seek pre-trial dismissal of parties or claims, limit evidence, decide legal questions, and the like.  Sometimes hearings - some with testifying witnesses - are held by the court in connection with motions.  Motions typically involve procedural and substantive legal issues that may profoundly impact the case.   

     In the event of trial, the parties are given opportunity to state their case via witnesses and tangible evidence (usually documents), and have the jury or judge decide.  An appeal to a higher court is available.

     As can be seen this all takes time.  It is not unusual for a non-settling civil case to take two or three years to resolve, sometimes longer.  An appeal or appeals can add years.

 

     Civil lawsuits are serious business.  Experience counts.  Call Sanderson Law, P.C., 303-444-8846, if you need help.

 

 

Criminal record seals in Colorado

Generally, absent an outright dismissal of all charges, the possibility of quickly sealing one's criminal record in Colorado is low.

The good news is that politicians increasingly recognize the lasting harm that criminal records have on people who have "done their time" and almost every year legislation to liberalize record seals is considered.  Recently for example most drug crimes can be sealed once a variety of hurdles have been cleared.

An attempt to seal a record starts with the filing of a petition for same in the appropriate court, notices to various law enforcement agencies and prosecutors, and finally may involve a hearing.  The matter is considered civil not criminal and lesser due process rules apply accordingly.

Most law firms charge a "flat fee" for the time and effort involved.  Filing fees and other court costs are required.

If you are thinking about having a Colorado criminal record sealed, call us here at Sanderson Law, P.C., 303-444-8846, or email us, to see if you are eligible.

10 Rules for Writing Emails

     Emails are great for communicating, especially in business.  They can be composed and sent anytime - no dealing with voice messages, call backs, phone tag, on hold, bad connections, etc.  One communication can be emailed to many people at once.  They automatically memorialize the substance of the communication (for better or worse).  They can be saved, printed, and reviewed or referenced later.  Of course there are times when a phone conversation is better, but generally emails increasingly are used because they are more efficient. 

     To get the most out of emails, and avoid problems, follow these simple rules:

1.  "Picture it on the front page of the New York Times."  So said my old boss about everything you put in writing.  Emails are no different.  Emails generally are not private, protected, confidential, or otherwise exempt from having to be turned over to the other side in matters of litigation for example.

2.  Punctuation, language and good grammar count.  Taking care - and the time - to draft, craft and proof read emails as you would a letter make them more readable, intelligent and compelling, and help prevent sending them off too hastily.  Number individual points or issues to increase the chances of receiving a response to each.

3.  Like phone calls, respond to emails as needed within 24 hours if possible, even if it is just to say Thank You.

4.  Insert attachments first, before you write the email itself.  Insert the recipient's name/address last.  This helps prevent sending emails without the attachment, and also sending them off too hastily.

5.  If in doubt, don't send it out - use the phone instead. 

6.  Don't assume others will read the entire string.  If it is important enough, summarize the communications in your last email in the string.  Especially important emails should "stand alone" and not require looking back at (or for) other emails.

7.  Avoid train-of-thought bantering and conversation via email.  This becomes confusing and potentially dangerous (see number 1 above).  If it looks like its going to be a verbal tennis match, or something amounting to chit chat, use the phone or text messaging.  Phone for conversation; email for communication.

8.  Wait 24 hours before sending a sensitive, reactionary, or nasty email.  You're probably better off not sending it then either.

9.  Rarely is "reply all" appropriate.  Avoid it as much as possible.

10.  Use the "subject" line and do so wisely.  Be brief, consistent and informative.  It will help stay on point and organized, and is good for searching back later.

-David S. Sanderson, Lawyer, Boulder, Colorado

What is the DUI Zantac defense?

        When you take a drink of alcohol, it is absorbed into the blood through the mucous lining of the gastrointestinal tract:  the mouth, the esophagus, the stomach, and the small intestine.  The rate of absorption increases as the alcohol moves through the tract.

        Absorption from the stomach into the bloodstream (by way of blood-carrying capillaries in the stomach lining) is faster than from the esophagus or mouth. Common wisdom - that drinking on an empty stomach will get you more intoxicated, faster - is true because there is nothing else in your stomach to compete with the alcohol in terms of getting absorbed.  

        Ranitidine - the key ingredient in Zantac and similar products - blocks the so-called first pass metabolism of alcohol.  When alcohol is ingested, the further it passes through the digestive tract, the more ethanol is absorbed into the blood stream.  The organs of digestion involved are the stomach, the small intestine, the large intestine, and the colon.  More ethanol is absorbed as it travels further through that tract. 

        Over-the-counter anti-acid and anti-heartburn medicines like Zantac (containing Ranitidine) reduce the amount of acid that the body produces.  The more of the drug you take, the more the body reduces acid production, thus there being less acid in the stomach to break down the ethanol then absorbed into the blood.   This is how Zantac works.  Heartburn and upset stomach occur due to the body producing acid in the stomach to the point where the person becomes uncomfortable.   The more Ranitidine that is consumed, the less stomach acid is produced.

        Ranitidine decreases the body’s ability to produce the acid that is used in the stomach to start metabolizing alcohol.  This allows more ethanol to pass from the stomach into the small intestine, where the body more readily absorbs ethanol into the blood than if the stomach had digested the ethanol.  The result is that more ethanol is absorbed into the blood through the small intestine.  This is the key component to why Ranitidine causes an elevated blood alcohol content, or BAC. 

        Generally speaking, in Colorado for example driving with a BAC of .05 or greater is against the law (including if .08 or greater "driving under the influence" or DUI).  People who consume Zantac (or similar product containing an equal amount of Ranitidine) and then consume alcohol - even minimal amounts - may unknowingly and involuntarily have their BACs elevated to where driving a vehicle is against the law.  What would be considered a small amount of alcohol consumption becomes amplified when the stomach did not break down the ethanol and the small intestine allowed the ethanol to pass into the blood.  And the higher BAC level persists for a longer time when Ranitidine is a factor.

        Because criminal offenses must be based on a voluntary act, a defense amounting to involuntary intoxication can be a defense to DUI. 

        Call Sanderson Law, P.C., if you need help.  303-444-8846.

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More on Not Talking to the Police

The following is from a police report in a recent false prescriptions case.  The defendant (now our client) said he returned an investigating police officer's phone call (to be nice!) but didn't give the officer any information.  In his mind he may be right, but let's look at what information the police - trained and motivated to get as much info as possible from people they are investigating - learned from "just a few questions."

I [Officer Friendly] received a return call from [the defendant].  I explained to him that I was investigating a case where it was reported several false prescriptions were filled at Denver pharmacies.  I asked the defendant if he knew anything about the prescriptions.  He acknowledged he knew about the prescriptions, and what I was referring to.  He wanted to speak with his attorney before speaking further.

From this brief, friendly, innocent sounding exchange, the police (and prosecutors) now will claim to know (1) what the defendant sounds like (to be compared to recordings they may have of defendant at the pharmacies), (2) that the defendant knows about the false prescriptions (i.e. a crime was committed), and (3) the defendant knew what the officer was talking about (i.e. defendant committed the crime).  Of course by calling back the defendant also confirmed his phone number, identity, and that he is still around.  All this free information now potentially can be used against the defendant - to find, arrest, prosecute and possibly convict him.

What should the guy have done?  He should have called a lawyer BEFORE calling the police back.  After making the mistake of calling the officer back, he compounded it by not politely declining to answer ANY questions until AFTER he spoke with his lawyer (of course a smart lawyer would have prevented that).

Note that Officer Friendly did not tell the defendant that anything the defendant said could and would be used as evidence against him.  The officer knows this is not required.  Contrary to what you've seen on TV, the famous Miranda advisement only applies to questioning while in custody; phone chit chat doesn't count. 

The defendant here unknowingly helped police to build a case against him.  Will they help him defend it?

Call Sanderson Law, 303-444-8846, before you even think about talking to the police.

Accused of copyright infringement? Read this.

Recently we've seen more cases involving allegations against clients of copyright infringement. 

The allegation comes in the form of an email to the client, claiming that a photograph or similar on its website infringes on the owner of that photograph etc.  Computer searches silently scouring the internet make it easier and cost effective for various organizations including so-called national law firms claiming to have enforcement rights to send out these types of email (which can include spam and emails easily mistaken for spam). 

The email demands payment in exchange for a retroactive license to use the photograph, and threatens all kinds of nasty legal consequences if the client refuses.  The question always is Should the client just pay the requested amount?

 

In order accurately to evaluate any alleged claim and decide whether to "just pay," we send a letter (not an email) to the demanding organization asking for information relevant under the applicable remedial statute, i.e., 17 USC 504.  This is the provision of the United States Code that governs recovering damages for copyright infringements. 

The letter asks the demanding organization - in order to be able to evaluate its demand - to advise:

1.     whether you (including the copyright owner) are seeking to recover actual damages and/or profits of the alleged infringer.  If so, please provide information as to how much you are seeking and any documentation supporting same.

2.     whether you are seeking statutory damages and if so, the total amount sought (including for each alleged actionable infringement).

3.     whether you are claiming any alleged infringement was committed willfully, and on what basis.  Kindly provide any supporting documentation.

4.     whether you maintain that the alleged infringer was aware or had reason to believe that its acts constituted an infringement of copyright, and on what basis you do so.  Kindly provide any supporting documentation.

5.     what is your basis for threatening to seek an award of court costs and attorney fees?

6.    Also, kindly provide documentation confirming that you are authorized to resolve on the owner's behalf any alleged copyright infringement, in addition to a proposed release license agreement duly executed also by that person.

         It is then up to the demanding organization to respond or not.  Failure to respond with the requested information could mean that any claimed recoverable damages are minimal or non-existent and/or that the demanding email is nothing more than a shakedown attempt.  Of course receipt of the requested information allows a more intelligent analysis (in view of the applicable law) in determining whether to pay or not. 

     Call Sanderson Law, P.C., at 303-444-8846, if you or someone you know needs help.

 

 

 

Talk to the police? No way.

They say art imitates life.  Sometimes it is the other way around.  I'm thinking about all those TV crime shows where the suspect stupidly answers police questions only to find himself in deeper trouble.  Fact:  Most criminal defendants are such because they talked to the police.

Let's be clear:  In criminal law, the only time you must answer questions is if you properly have been subpoenaed.  Typically that means personally being served specific paperwork (which you can challenge), called into court, seated in the witness chair, and questioned before a judge.  And even then - if you don't mind being held in contempt and placed in jail for a while - you still cannot be forced to utter a word (at least in this country).

So why do people talk to the police?  One reason is they think they have to (they don't).  Another reason is that they think it will help (it won't).  Beyond those reasons you get into all kinds of psychological theories about why people talk to the police. 

There is no need to complicate things.  Police ask questions when they don't have enough information.  If they don't have enough information, why give more to them?  A lack of information usually means lack of enough reason (or cause) to arrest you, or search your house, or seize evidence from your trunk. 

Will cops make up stuff if you don't give it to them?  Of course.  They are only human (newsflash to many judges, prosecutors and jurors) and prone at least to the same temptations to lie - to look better, or advance, or win - as anyone else.  But a lying cop is the exception.  A lying cop is a sitting duck, defenseless to an inquiring and probing defense team.  A lying cop will lie again, increasing the chances he or she will be caught.  Judges love cops, but not the lying kind.

When police (and judges and prosecutors) are arrested, they don't talk to the police.  Why should anyone else?

Being questioned by police?  Smile and politely insist on a lawyer.  Stick to it.  Don't fall for or submit to anything the police say in response.  They are trained to get you to talk, in all kinds of friendly, reasonable sounding and sneaky ways.  One of my favorite ploys is when the cop says "How can we know what happened unless you tell us your side of the story?"  What?  Whether the cops know "the story" is not a suspect's problem!  By telling them your story odds are you make yourself more of a suspect.

Even if you are "just a witness" you do not have to talk to the police.  And since you don't know what the cops know, or what or who they are looking for, or even whether you are "just a witness" - cops don't have to be honest or answer or tell you anything about their investigations - why would you want to risk digging your own grave?

If you choose to talk to the police, you'll only increase the odds of spending way more time (and money) with a defense lawyer anyway.

Here at Sanderson Law, P.C., we can help if you find yourself in a situation.  Best call us before you talk to the police.  303-444-8846.

8 Things to know about Domestic Violence offenses in Colorado

8 Things to know about Domestic Violence offenses in Colorado

1  Domestic Violence Can Be Any Crime

It's commonly misunderstood that Domestic Violence charges mean that someone was violent during the events concerning the charge. In Colorado, "Domestic Violence" of course means an act or threatened act of violence upon someone with whom the accused has had intimate relationship. But that is not the only way a crime may be classified as "Domestic Violence." It also includes any crime committed as a means of coercion, control, punishment, intimidation, or revenge against an intimate partner. So, for example, if a girlfriend breaks her boyfriend's Sony Playstation when he is not even home, because she is mad he went out with another girl to the movies, it is arguably an act of domestic violence.

2  Colorado Has Mandatory Arrest Laws

For most crimes, a peace officer in Colorado is given discretion when and where, and even if, to charge and or arrest someone. Not so in Domestic Violence Cases. If officers are called out and they have probable cause to believe someone committed an act of Domestic Violence, the suspect of the crime must be arrested. The legislature has told the officer that he must do this "without undue delay" meaning that if the person is there, the arrest must be made then and there. In addition, the arrested person will be booked into jail and cannot be given a bond until the victim has been informed of the bond hearing and given a right to be heard.

3  A Victim Cannot "Drop Charges"; Only the State "Presses Charges"

For whatever reason, the person who reported the crime may decide they no longer want to pursue a case (perhaps they never wanted to go forward with the case); this does not however mean that the case will be dismissed on that fact alone. All crimes in Colorado are said to be affronts to the peace and dignity of the State. Despite someone being designated the victim, only the DA who is prosecuting the case can make the call about whether the case goes forward or not. Except for unusual circumstance, even a judge cannot dismiss the case.

4  Domestic Violence cases are Victim's Rights Cases

Under the Colorado Constitution, some crimes are considered victims' rights cases. By definition, all Domestic Violence crimes are victim's rights cases. This means that the victim has several rights, including the right to consult with the DA before any offers are made and when bond is addressed. They have the right to speak at sentencing and to be notified when an incarcerated defendant will be released. Despite the fact that a victim cannot control whether a case is prosecuted or not, the victim can have a dramatic effect on how a case turns out.

5  Sometimes, Misdemeanor Charges Can Be Elevated to Felony Charges

In Colorado, if a person is convicted of an offense which would otherwise be a domestic violence misdemeanor and has already been previously convicted three times of acts of domestic violence, the person may be considered a habitual domestic violence offender and misdemeanor may be bumped to a class 5 felony. If the person is found by the court to be an habitual domestic violence offender, the court would then sentence in the presumptive range for a class 5 felony or 1 to 3 years. The DA has to give notice to the accused that they intend to do this, but keep in mind that while the accused may initially be charged with only misdemeanors, the DA may amend the charges upward if the accused has a significant domestic violence criminal history.

6  A Domestic Violence Conviction Will Impact Gun Rights

Federal law mandates that anyone convicted of a Domestic Violence charge can not possess a firearm. If the Domestic Violence conviction is for a felony, State law also makes it a felony to possess a firearm. These bans are for lifetime.

7  A Domestic Violence Conviction Will Result in DV Classes

Any sentence imposed by the court for a domestic violence crime, must order the defendant to complete a treatment program and a treatment evaluation. The domestic violence management treatment board, a state agency, approves both the treatment providers and the treatment. This gives the board a tremendous amount of power. In most cases, even for very low level misdemeanors, this means at least 36 one hour sessions over the course of 36 weeks. The treatment is required even if the person receives a deferred judgment and sentence. The only time treatment will not be imposed is if the person is sent to prison.

8  No In Home Detention on DV cases

For non-DV cases, in-home detention, sometimes called Electric Home Monitoring or EHM, is normally available as a sentence to custody or as a condition of probation. However, someone who is convicted of a Domestic Violence crime, is not eligible for home detention in the home of the victim. The only way someone could qualify for home detention is if they did not live with the victim - obviously something that rarely happens with married couples.

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