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.

Lessons from Sandy Hook.

Remember last year's shooting at Connecticut's Sandy Hook Elementary School?  20-year old Adam Lanza shot and killed his mother, and then 26 people (plus himself) at the school.  Recordings from various 911 calls were released yesterday.  Some of the lessons to be learned (again):

- The recordings include anguished people inside the school describing the killer continuing to fire.  Apparently three of the 911 calls to state police went unanswered (there were seven recordings released).  Police arrived within 4 minutes but it took them another 6 minutes to enter the building.  Lesson?  Calling 911 won't save you from a determined killer.

- The first priority of police is to protect themselves.  Of course there is nothing inherently wrong with that most natural instinct, but it did delay their entry into the building (they thought there might be a second shooter nearby).  Similar concern apparently also delayed entry into Colorado's Columbine High School shooting scene a decade earlier.  Lesson?  The police can't save you either.

- By now it should be obvious that "gun free zones" aren't necessarily gun free.  And surely they make tempting targets for determined killers.  Lesson?  Laws only deter the law-abiding.

Dealing with Contractors.

New house construction, remodels, kitchen updates, new flooring, roof repair?  If you've dealt a lot with contractors you've probably run into problems with the work they did, or were supposed to do and didn't.  Here's how to minimize problems:

1.  Put everything important in writing - start and end dates, changes, amounts due and when, estimates, who pays for the materials, any guarantees.  Email is a good way to memorialize such things so craft them accordingly.

2.  Include an attorneys' fee and legal cost provision - for example, if you have to take the contractor to court, you want him/her to pay your legal fees and case costs if you win.

3.  Try to deal only with a reputable and established business - is it bonded and insured and if not, how long has it been around, does it have local offices?  Get references and check them beforehand.

4.  If you get in a dispute, have another (reputable and experienced) contractor take a look and give you a written opinion on what went wrong, who caused it, and what it'll take to fix or repair.

5.  Save a big chunk of the fee payment until the very end, only when it is all done to your satisfaction according to the written agreement above.  This is especially advisable if its a relative, or friend, someone without much experience, or not an established business (see #3 above).

6.  Before filing a lawsuit (best to have a good lawyer do that), try in writing to lay out the problem to the contractor and give him/her a reasonable chance to fix, repair or refund.  If not, take 'em to court; you (or they) can always try again to negotiate a resolution later.

Trial versus Plea - Which is Better?

     Most criminal cases end with a plea agreement (sometimes called a plea "bargain" depending on one's viewpoint) rather than trial.  The benefits usually are apparent - reduced criminal charges, speedier resolution, minimized sentence risks, and of course lower legal fees and costs.  So why would anyone ever try his/her criminal case?

There are seven main reasons:

1.  No acceptable plea offer is made.  The prosecution does not have to make a plea offer, or if one is made, it is a bad one (because the facts of the case are terrible, or the defendant has a criminal history, or the law precludes a better offer, or the prosecutor's policy is not to extend good offers, or the judge won't accept a better offer etc.), or not really an offer at all (such as having the defendant plead to the charges and be sentenced by the judge, known to some defense lawyers around these parts as "the Jeffco deal").

2.  The defendant is innocent. Just as the prosecution does not have to make an offer, a defendant does not have to accept one and instead may invoke his/her constitutional right to trial (where the charges of course must be proven beyond a reasonable doubt).  Some judges will not accept a plea (a requirement) if the defendant insists on innocence.

3.  Delay.  By not taking a plea, the case eventually is set for trial and related proceedings before then, delaying resolution of the case.  Whereas a plea may end the case in a month or two, trial may extend it out a year or more (and even more for appeals).

4.  Trial may result in a better outcome.  Although most criminal trials (state and federal) end up with the defendant losing - by something like over a two to one average - good facts, good law, good evidence, a lack of bad evidence, a good defense strategy etc., and a good lawyer, may justify "rolling the dice" with a trial.

5.  Strange things happen when trial is set, and it usually favors the defendant.  In the run-up to trial, witnesses move away or otherwise become unavailable, evidence gets lost, laws change (think of the marijuana laws), the defendant has the chance to make a more favorable impression etc. - all potentially resulting in a better offer or even dismissal of charges.  During trial, all kinds of things happen with witnesses and evidence and rulings that inject new (usually more favorable because it can't get much worse for the defendant by then) dynamics into the case, further justifying the risks of trial.

6.  Send a message to the prosecution.   Many defendants finds themselves repeatedly in court facing criminal charges.  The plea offers get worse and the convictions pile up.  In those situations sometimes defendants simply have to decide when to fight (via trial) rather than whether to fight.  Prosecutors generally would much rather resolve a case with an easy plea than do all the work associated with trial.  Sometimes trial is the best place and time to stand and fight.

7.  Preserve an appellate argument.  Before trial the judge usually is called upon to rule on various evidentiary matters - what evidence can or cannot come in at trial for instance.  Plea deals typically cut off the case from further review so any perceived errors in those rulings basically are waived.  In drug cases for example, search and seizure rulings early on can determine the outcome of the case.  Trial may be necessary to preserve ruling errors for appellate review and possibly reversal (i.e. if the drugs are thrown out, the case might be too).

     Of course every case is different.  Criminal defense, like all litigation, is a dynamic process, frequently changing to favor one side or the other.  Call Sanderson Law, P.C., 303-444-8846, when you need experienced representation in criminal or civil cases.  Sanderson Law, P.C.  Experience + Personal Service = Success.

What to Wear to Court.

"Dress for where you're going, not where you've been" is another one of the timeless gems learned from my old boss in New York.  It means to look as good as you want your future to look.  Or as my mom would say, Don't dress like a bum unless you want to be one.

Showing up at a court proceeding is more than just showing up, even if you have a good lawyer (like Sanderson Law, P.C.) doing all the talking.  Being on time (a little early is on time), cleaned up, dressed up, and positive, sends valuable messages to the other side, to people watching, and to the judge.  It conveys commitment to toughing out the process and confidence in the outcome.

Business casual is the baseline.  Anything more is better.  Although they say you can never be too dressed up (people assume you're going someplace better later), don't overdo it - leave the flashy tuxedo or evening gown for the party when the case is finished.  How you look in court says a lot, so make it the best you can say.