Denver criminal defense lawyer / discovery

If you are charged with a crime, you'll want to know what kind of evidence the state has against you. Under the United States Constitution, you are entitled to know this information. This is a part of due process: if you don't know what evidence the prosecutors have against you at trial, how are you supposed to rebut the case or decide whether to take the plea bargain? Another part of your due process rights is the right to be represented by a Denver criminal defense lawyer. To fulfill this obligation, each District Attorney's or City Attorney's office has established a way to get discovery. Generally you send a letter or a fax to the office asking for all the information in your case, you will get a call a few days later, and go pay a fee to pick up the discovery.

So getting discover is not that complicated, and you may not need a Denver criminal defense lawyer for that. Generally the offices have a policy of including all the information that is relevant to your case, that you would be able to see. That means it's not a huge deal how the request is worded. The part where you may need a Denver criminal defense lawyer is in figuring out what it all means. Discovery generally includes a variety of reports that can be difficult to decipher simply because of format. That means it can help to have someone who has looked at them before.

Additionally, police reports tend to mix fact with opinion quite a bit. It's not always clear where the officer drifts from the facts to simply his interpretation. Although the officer's opinion might be admissible at trial, it also is not nearly as strong as direct observation. So a professional opinion can help figure out how strong the evidence is and determine whether you should take a particular plea bargain. Finally, an attorney can help to determine how best to use the information to bolster your case at trial.

Denver criminal defense lawyer / informants

One question people will inevitably have for their Denver criminal defense lawyer is what kind of evidence the government will be able to bring in court. Basically, anything that cannot be objected to is fair game. Of course, the evidence is limited by how much time and money the prosecutor can spend putting the case together. How much time and money does the government have to put evidence together? The answer to that is probably more than you do, and they can probably outgun most Denver criminal defense lawyers simply with the massive power of the government.

The U.S. government has paid Sagastume $9 million for his work as an informant over the last 15 years, the story says. The biggest chunk of the money—$7.5 million—was from two rewards for work he did for the Drug Enforcement Administration. He earned another $1.6 million for work on 150 investigations, although some of the money covered his expenses.

So essentially if you are accused of a crime, you are going up against an opponent that can pay witnesses enough to live for a lifetime for testimony against you. This is just an example of how the deck is stacked against Denver criminal defense lawyers and their clients.

Now naturally this is a federal case. Most people aren't charged with federal crimes. The vast majority are charged in state courts with state offenses. State prosecutors do not have nearly this sort of money at their disposal. However, it still is a glaring illustration of the resources available. If the testimony is not forthcoming, they can pay a lot of money for it. Now of course the defendant can ask that witness if he got paid for his testimony. However, a lot of times these payments are to get somebody to testify when they are being intimidated. This line of questioning can just serve to make the defendant look even worse.

Denver criminal defense lawyer / states of mind

One critical argument a Denver criminal defense lawyer can make, besides technical arguments like exclusion of the evidence based on lack of probable cause, is that the prosecution failed to prove each of the elements of the case. The elements of each case is different obviously. The Denver criminal defense lawyer in a DUI case will probably be arguing about whether the driver was in a condition to safely operate the car. In a murder case, maybe there will be a contest as to whether "that defendant" actually committed the crime. That will allow the Denver criminal defense lawyer to argue an alibi, or a mistaken identity. But basically the elements of all the crimes can be classed into a few different categories.

The one I want to talk about is states of mind. No, the government cannot make it a crime to think something. That would be against the First Amendment. But that's not really what states of mind are about. For example, everybody would agree that it's a lot worse to wait for someone at home, then bludgeon them to death with a blunt object than to kill somebody in a knifefight. Yes, both crimes are murder. The person killed somebody and they shouldn't have. Yes, both crimes are bad. However, we as a society should make a distinction between these two things. The only real distinction here is what the person was thinking in killing them. So as hard as it may be to figure out what somebody was thinking when they committed murder, it is still important and necessary for that to be a crime element.

The states of mind go all the way down from intentional down to negligent. One reason I was thinking about this post is because of the Reno air crash. Some people have asked me if there could be criminal convictions for that. The answer is probably no, and it comes back to states of mind. In a few cases, you can be criminally convicted for being negligent. But those cases are exceptional and usually regulatory crimes (i.e. there has to be a regulation specifically in place that someone knew about). Otherwise the lowest state of mind would be recklessness. You would have to argue that the people who run the show were reckless in allowing the old aircraft to fly, or reckless in having the stands so close to the action. Since that would be very hard to prove, it is almost certainly a better case for a civil action. In a civil action, the plaintiffs can get money for proving basic negligence.

Denver criminal defense lawyer / right to free speech

The right to free speech is a little bit of a different right than the other rights I've talked about here, like your right to remain silent or your right to a Denver criminal defense lawyer. At the same time, it's in the First Amendment, so obviously it's the most important, right? Well, sort of. Generally your right to free speech lets you say anything you want. You can tell a cop to shove it (though that's probably not smart), you can criticize the president, you can say racist stuff, and none of it is a crime. No matter how nasty the stuff you say is, generally your Denver criminal defense lawyer will be able to argue that your right to speak is protected by the First Amendment, and you'll be off scot-free. The law you're convicted by is probably actually not even allowed to exist.

There are a couple of reasons why the government can make speech against the law. A lot of them apply to civil litigation. In some cases if you say something inaccurate and damaging, you can get sued. But since this is a Denver criminal defense lawyer blog, we'll only talk about the criminal applications. Basically there are two reasons that speech can be a crime. The first is for either a call to violent action or a threat of violent action. If you speak at a Klan rally where everyone has guns, and you scream "let's go kill some black people," that is a call to violent action. But it can't be a vague call to action. You have to know the people you are calling to action are actually going to listen, and you have to know they are capable of doing it. So writing a manifesto about overthrowing the U.S. government would be OK.

The second is a little weird. It's called a breach of the peace. In some cases, the stuff you say will be apparently so annoying that it will actually cause violent action. That's a breach of the peace. Why it's the fault of the guy who said the annoying or offensive thing that the other guy punched him is unclear to me, but I don't make the law. The Supreme Court does by interpreting the constitution. So there you have it. Mostly your right to speak is protected, except in a few cases where it's a crime.

Denver criminal defense lawyer / regulatory crimes

On common misconception I run into a lot as a Denver criminal defense lawyer is that once you are stopped by a police officer, you're totally at their mercy. Sure it is true that you can't control the encounter. The cop is going to do whatever he wants at that time. But you can do a lot to influence your case. As I've said earlier, the exclusionary rule is a crucial weapon for Denver criminal defense lawyers. But if you consent to a search, the exclusionary rule is totally useless. That's why you have to clearly renounce consent when dealing with police officers.

The specific thing I'm talking about here is the difference between crimes and regulatory offenses. Nobody really cares about the difference, it is basically a technicality. But it is very important in terms of searches and consent. Basically a regulatory offense is a ticket. Anything like a busted tail-light, broken windshield or the like is not a crime. The cop can write you a ticket then and there. It's probably not necessary to call a Denver criminal defense lawyer. At the same time, a regulatory offense is not the same as a crime like a DUI.

If you are pulled over for something like a busted tail light, make sure you know your situation. The tail light is not a reason to arrest you. It is a reason to write you a ticket. That means if you get the feeling the cop is trying to stall and get consent to search, be clear with him. Ask if he's going to write you a ticket for the regulatory issue. Once he does that, ask if you are free to go. At that point, he can arrest you, or search your car, but without probable cause for the search and arrest, the evidence cannot be used against you in court.

Denver criminal defense lawyer / right not to testify

If you are accused of a crime, you have a number of rights. One of them is the right to an attorney. If you have seen lawyer movies, you know that you also have a right "to remain silent." Any Denver criminal defense lawyer will also tell you this right has two parts. Basically, you don't have to talk to the police. You also don't have to talk in court. Of course, it's your choice to exercise this right, and with your consent, the police may interrogate you. Any defendant should consult a Denver criminal defense lawyer before deciding whether to speak to the police or testify in court.

Another thing that makes this right more complicated is statements to other people. If you go tell your friends or relatives about your case, they can be subpoenaed to testify about what you told them. But isn't this out of court statements that are being introduced to prove what was stated? That's the definition of hearsay, right? Yes, it is hearsay. However, it is still allowed as evidence to prove your guilt. That's because incriminating statements are allowed. The reason for this is that you would not make a statement that proved your guilt just for fun, would you? You wouldn't lie and say "I'm guilty?" Maybe if you were under threat from the mob or something, but why wouldn't they keep threatening you and make you say it at trial? The result is, you should only talk to you Denver criminal defense lawyer and nobody else about your case.

In a total reverse of the above right, defendants also have the right to testify in their own favor.
You can speak in your own defense. However, a lot of times a defendant will not want to do this. That's because prosecutors are good at cross-examining defendants to make them look guilty. If the defendant gets crossed up and mis-speaks, it may look like a lie. Therefore, even if he's not guilty, a lot of times the accused will not testify.

Denver criminal defense lawyer / hearsay

A common objection Denver criminal defense lawyers will make is that something is hearsay. It's something that also comes up a lot in movies and books about lawyers. So what is hearsay? Is that just lawyerly mumbo jumbo? Well, it's not exactly the world's most complicated thing. Basically, all this is is a out of court statement introduced in court to prove the thing that was said.

The most common context for hearsay is a witness repeating something that was said outside of court. If you hear someone say "I was shot by a tall, brown haired man in a red jacket," you may remember that and you may think that was the truth. But if you are called into court to testify about this, you won't be able to talk about the statement that was made out of court. The defendant's Denver criminal defense lawyer will object, and the judge will tell you to stick to what you personally know.

Why do we not allow people to testify about things that were said out of court? There are a couple of reasons. First, one of the defendant's rights is to have his Denver criminal defense lawyer cross examine the witness. If the witness doesn't come to court and say what he saw, but someone else does, the truth of the statement can't be evaluated by cross examination. You can cross examine the person who heard the statement about the guy in the red jacket with brown hair. You can evaluate whether he heard that for real, or whether he's making it up. But you can't evaluate the initial statement.

The other issue that's nearly as important is we'd hate our trials to turn in to a massive game of telephone. If you allowed someone who heard something to relay his recollection of the out of court statement, would you take it another step further and let someone relay their recollection of the third party? Basically it would never end. May as well cut it off at the start.

Denver criminal defense lawyer / objections

In a lot of lawyer TV shows, the defense attorneys will make a big deal out of objecting. "Objection, your honor!" Then there will be much hand waiving and screaming about how the judge's ruling is a horrible injustice. In real life, your Denver criminal defense lawyer may make some objections at your trial. He also may make no objections at all. But one thing he should never do is yell at the judge hysterically. That's because the point of an objection isn't really to persuade the judge. It has a couple of other purposes, but a lawyer isn't going to win the trial in an argument over an objection.

In a perfectly run trial, there will be no objections at all. The evidence that needs to be excluded will be knocked out in pre-trial hearings. The defense attorney will get a chance to object. The judge will hear the reasons for these objections, and rule on them. That way, both the prosecutor and the Denver criminal defense lawyer can put on their cases in front of the jury without interruptions for objections.

Of course, this doesn't always work out. Sometimes a prosecutor will forget to disclose something. Sometimes he witheld it in order to ambush the Denver criminal defense lawyer. Who knows why. In other cases, a witness will stray off track and say something that's not allowed. That could be something that he doesn't have personal knowledge of. It could be a statement that happened out of court (that is hearsay). In that case, the defense attorney needs to object. But the objection isn't going to be some sort of hysterical argument about how it's an injustice. Instead, a good lawyer will find the point of objection, say "objection," state the ground and that will be it. If the judge says overruled, so be it. If the judge says granted, good. If the judge asks for more, the lawyer better be ready for that.

The reason for not going crazy when the judge overrules an objection is because the objections are just as much done for the benefit of the defendant on appeal as they are to win the trial. If the judge allows evidence that should not have been allowed, but there is no objection, the error is considered not preserved. That means on appeal the defendant must meet a much higher standard than if there had been an objection. That's because the courts want to create an incentive for the lawyers to force the trial judges to do their jobs. In short, objections are just as much about making a complete record for appeal as they are about winning the trial.

Denver criminal defense lawyer / the 8th Amendment

On this blog I've talked about a few different constitutional provisions that your Denver criminal defense lawyer might use in an effort to help your case. There is the right to have every element of your case proven beyond a reasonable doubt. There is also the Fourth Amendment, which means the police need a warrant and probable cause to search you. Otherwise the evidence cannot be introduced at trial. In this post I'm going to talk about one right that your Denver criminal defense lawyer will never use in your case. That is the 8th Amendment's rule against cruel and unusual punishment.

Even if nobody can really be certain what the Founding Fathers meant when they created an amendment, we can try. Based on the time of the Founding, we know that there were a few pretty nasty punishment practices. Tarring and feathering, which was basically just a slow way to die. You didn't die because of some direct mechanism like a needle or electric chair. You died because the tar clogged your pores and made it so you couldn't sweat. Probably pretty damn painful. Drawing and quartering was a classic method of execution. That meant you got sliced up and four horses pulled your body apart. These are barbaric, and we wouldn't tolerate them even if there was no constitution.

In fact, basically the only punishment back then was death. The idea of putting bad people in one place didn't really get traction until the middle of the 19th century. So what can we glean from cruel and unusual punishment as far as putting people in prison? Basically, the Supreme Court says nothing. A bunch of people have tried to challenge three strikes laws which put folks in prison for life for doing stuff like stealing golf clubs. That didn't work. The Supreme Court said basically a state can put people in prison for doing anything. One judge said it might be cruel and unusual to give somebody life in prison for a parking ticket. Key word there is "might." So it might even be OK too.

Otherwise, the Supreme Court has said there are a few reasons it's not OK to execute a criminal. No state can execute people under 18, for example. No state can execute somebody who did something other than murder (Louisiana thought child rape was a capital offense, but the Supreme Court said no). You also can't execute people who are mentally retarded. The definition of mentally retarded is up for some debate, but most of the people in the cases have intelligence approximately equal to a seven year old. Even that might not be enough to get you acquitted, since Texas executed a few murderers who still believe in Santa Claus.

So basically, if you aren't accused of a capital offense, the 8th Amendment does nothing for you (until we start locking people up for life for parking tickets, that is). Why will your Denver criminal defense lawyer probably never use this as a defense? Well, it doesn't really matter how bad the crime is. The state of Colorado does not really execute people. Since the death penalty was reinstated in 1977, Colorado has executed one person, in 1997. I didn't look up the case, but I'd be willing to bet he waived some appeals, or did a particularly incredibly heinous crime. That means unless you want to die, you probably won't be facing the death penalty in Colorado (you might end up on death row, but that's really just a wing of a prison in Canon City, not a place where people are actually executed). And if you are on death row, well, this probably isn';t the best place to be researching your case. Try Westlaw.

Denver criminal defense lawyer / jurisdiction

A tool that's not typically useful for a Denver criminal defense lawyer is jurisdiction. However, when it is useful, it can be basically fatal for the case against you. In that respect, it's sort of like the statute of limitations, which is rarely used but works every time. Jurisdiction is an element of every offense, which means it has to be proven every time. So even though it is rarely at issue, it is used in every case. Let's break it down.

Basically jurisdiction is simply the ability of a court to make rulings on certain things. It really comes down to two different things: territory and subject matter. Territory basically means a court (and district attorney) govern a certain area. If you commit a crime in Denver County, then get charged by the Arapahoe County district attorney, your Denver criminal defense lawyer can move to dismiss. The Arapahoe County court does not have jurisdiction to hear the case. That means it would have to be dismissed. The Denver district attorney can still charge the case. But sometimes different counties have different standards. or sometimes the statute of limitations has run out. That means you've successfully beaten the rap.

The other jurisdiction thing is subject matter. This generally applies to federal court, and a lot of times in civil litigation. Federal courts can only hear civil cases that are over 75,000 in value, and between citizens of different states. That means if it turns out one citizen is trying to sue another citizen of the same state in federal court, the case can get thrown out.

Jurisdiction is such a powerful defense it is not limited to any time in the proceeding. That means even if the conviction happens, if your Denver criminal defense lawyer is dumb and didn't notice the jurisdiction defense before the trial, it can still get thrown out. That's because without jurisdiction, the whole case is deemed totally null. None of the court's actions were valid at all.

Denver criminal defense lawyer / criminalizing classes

I know I normally don't do news here on the Denver criminal defense lawyer blog, since I prefer to stick to stuff that's a little bit more practical. There was an interesting snippet in my RSS feed this morning, though. In the Post, I saw that the Supreme Court declined to hear a constitutional challenge to the City of Boulder's anti-camping ordinance. The American Civil Liberties Union (ACLU) had challenged it, arguing that it penalized a "class" of people. It is not legal for a case to punish a class of people--laws must criminalize specific acts. Although this is not something that a Denver criminal defense lawyer will come up against often in practice, it is still an important principle in criminal law practice.

Basically, it is a due process violation to make a law that punishes being part of a class of people. A class is really just a group where you can't leave the group or decide not to be part of it. So if the government made a law that no homosexuals could be on the 16th street mall between five and nine pm, the defendants' Denver criminal defense lawyer would have a strong argument that the law was unconstitutional. On the other hand, if a law criminalizes acts, a group of people predisposed to those acts is not a class that is being criminalized. For example, laws prohibiting heroin use do not criminalize the class of people "heroin addicts." Yes, heroin addicts are more likely to be punished under the law. But it is still an act that is being criminalized, not a class. Similarly, folks who use peyote as part of religious ceremonies are not having their class punished. The act of eating peyote is not considered an essential part of the ceremony (many people strongly disagree with this, but that's what the U.S. Supreme Court said). The homeless ordinance falls somewhere in the middle. You can see that poor people are basically the only people who will be busted for permitless camping. That's particularly true in the middle of the winter. On the other hand, the City isn't saying "you can't be homeless." It's at least on its face a rule against a specific act. So there are arguments on both sides.

Denver criminal defense lawyer / crime elements

One of the strongest parts of the criminal justice system favoring the defendant (and there are few of these) is the requirement that the prosecution basically do all the work. That means your Denver criminal defense lawyer does not need to do anything at all to get an acquittal. After the prosecution is done presenting its case, he can simply stand up and say "we don't believe the prosecution proved its case beyond a reasonable doubt. Because the state did not meet its burden of proof, the jury must acquit."

To understand why this can be such a powerful weapon in the hands of a Denver criminal defense lawyer, you need to understand a little bit about how the legislature defines crimes. Every crime is composed of a number of elements. As an example, here are the elements of drunk driving offenses in Colorado. Basically, these are parts of a crime. Some of them are fairly easy to prove, such as that the offense occurred in a certain county, or a certain act was committed by a particular person. But others are incredibly difficult to prove. For example, first degree murder has an element that the killing occurred with "malice aforethought" at least traditionally. Getting a jury to understand what that means can be hard enough. Then the prosecutor has to prove what the defendant was thinking, doubtless over the Denver criminal defense lawyer's strenuous objections.

The key with elements is that every single one of them must be proven beyond a reasonable doubt. If there are eight things the prosecution has to prove, no matter how stone cold the proof on seven of them, the tiniest smidgen of reasonable doubt can result in an acquittal. That's why the prosecution has to check all the boxes. Meanwhile, the key for the defense attorney is to focus on the smallest areas where he has a chance of showing reasonable doubt.

Denver criminal defense lawyer / statutes of limitations

When I was in school training to be a Denver criminal defense lawyer, our civil procedure professor talked about statutes of limitations. He always abbreviated it as SoL, because if you didn't sue before the SoL was over, you were shit out of luck. For criminal defendants, it means you're pretty darn lucky.

A statute of limitations is basically a limit on how long the state has to prosecute crimes. In many cases, it will be meaningless, because the prosecutors usually are right on top of things. However, in other cases it goes right up there with the exclusionary rule and the very high burden of proof in criminal cases as a key tool for a Denver criminal defense lawyer.

The statutes of limitations serve several purposes. First, over a period of time the evidence for criminal cases gets worse. Witnesses forget things. Police departments dispose of evidence. Footprints get washed away, DNA decays and fingerprints fade. The idea that you could even accurately identify who committed a relatively minor crime five years ago is pretty silly. So the statute of limitations protects against inaccurate prosecution and convictions. Second, prosecutors could choose to prosecute many, many acts selectively. Without the statute of limitations, there would never be certainty as to when a case could no longer be prosecuted.

In terms of how they work, statutes of limitations are fairly complicated. In reality you'll need a Denver criminal defense lawyer to help decipher them. However, I can provide a few pointers on how they work. Generally, the statute of limitations runs from the date the crime was committed. It stops when the crime is charged. That means if the statute of limitations is two years, the prosecution has that much time to file an indictment or information. Even if the final conviction takes more than that amount of time, statute of limitations is not a defense once the crime is charged.

In certain cases, the statute can be "tolled." That means it will stop running, so it will actually go longer than the period of time prescribed in the statute. Sometimes the statute will be tolled until the prosecution finds out about the case. That's particularly the case when the defendant actively concealed the crime.

Generally, the more serious the crime, the longer the statute of limitations. In most states, murder has no statute of limitations. The limitations period for minor felonies or misdemeanors is two years or less. Other crimes are on the continuum somewhere in between. As you can see, statutes of limitations are fairly complex, so consult a lawyer if you have questions about how it might help your case.

Denver criminal defense lawyer / truth in advertising

Yesterday I mentioned the different ways you can be charged in the criminal justice system. Not only is this a necessary procedure, the right to know the charges against you isch a key right, like the right to a jury trial and the right to an attorney. That's because if you don't know what you are charged with and why going into the trial, your Denver criminal defense lawyer won't be able to properly defend you against those charges. Though this right isn't super complicated, it does have a few interesting ins and outs that you probably should know about.

First, like most crucial constitutional rights, it can be waived. If after talking to a Denver criminal defense lawyer, you decide a plea bargain is in your best interest, that's fine. You can even plead guilty to stuff you weren't originally charged with. What you don't want to do is plead guilty, then come back and claimed you weren't charged with the offenses for which you were convicted. First, you waived those rights. Second, you were apprised of those charges before the plea, which the courts consider good enough.

Next, simply telling you what statutes you're charged with a crime under is probably not enough to satisfy the right to be charged. After all, if somebody served you with papers stating you were accused of public intoxication, where would you even begin? How in the world would your Denver criminal defense lawyer go about preparing your case? Would you have any idea even what to contest? As such, the charging document needs to include some information about the facts that make up the case against you, along with the statute you violated. Otherwise the charge could be considered too vague, and any conviction might be thrown out.

Finally, even if you are charged with one thing, it is possibly to be convicted of another. Generally this is called a "lesser included offense." That occurs when all the elements or components of one crime are included within another. So first degree murder is the same as second degree murder, except with "malice." That means if a defendant is charged with second degree murder, he is assumed to be on notice to defend first degree murder. He should know if he only attacks the "malice" part, he's basically conceding guilt on second degree. So the charging requirement is satisfied.

Denver criminal defense lawyer / taxis on patrol

I heard a colleague who's also a Denver criminal defense lawyer complaining about the taxis on patrol program. He was saying that he passed a cab, the cab followed him and taped him, and as a result he got a citation. The implication here was that basically the taxi program was turning things into a police state where our rights were not protected. As such, any Denver criminal defense lawyer should be against such a program. I'm not so sure I agree. I'm the first to defend measures that protect civil liberties. But after some research, I'm not so sure the taxis program does any such thing.

Basically what taxis on patrol does is give taxis access to the police radio system. That gives them an avenue to report crimes. That's basically it. They can't really arrest people (unless they want to do a citizen's arrest like everybody else). There is no real indication that they have been given any special equipment. I found no verification that these taxis had cameras or anything of the sort. Just a radio hookup, so they can report criminal activity. Isn't this more like giving an 8 year old an honorary sheriff's badge and telling him to report anything he sees? And shouldn't taxis call the police when they see bad stuff happen anyway (just like ordinary citizens, heh)?

The only thing I see in this program is a sort of silly bid for publicity by both the cops and taxi companies. The police always are looking for ways to appear tough on crime. Sure, the crime rate has been sliding for nearly two decades now. Even so, people are still afraid of crime, and like measures that make the police look tough. In exchange for linking with this program, YellowCab and the others get their names out there in a positive light. If one of these cabs catches a huge fugitive or dangerous person, then that will be even greater publicity. This benefit really accrues simply from letting their employees do what every citizen should do: report bad stuff that's happening on the streets. So no, I don't think the taxis on patrol program is much of a civil liberties issue.

Denver criminal defense lawyer / getting charged

A lot of times by the time a person brings his case to a Denver criminal defense lawyer he is already the defendant in the case. That means he has already been charged with a crime. However, the process of actually charging the case is also important. Interestingly, it can vary pretty strongly from crime to crime and from state to state. One thing that is always required is that the prosecutor have at least a probable cause basis for believing the defendant committed the charged crime.

One thing that is universally not true is defendants do not have a federal right to be indicted by a grand jury. There is a right to be indicted in the United States Constitution. However, it is one of just a few rights that has not been "incorporated." That means it has not been held to apply to the states. So the states are largely free to decide how they want to charge cases.

Another national guide are the ethical burdens of prosecutors. The ABA model rules of ethical conduct for lawyers have specific rules that apply to prosecutors. One of those is that prosecutors are not ethically allowed to charge someone with a crime if there is no probable cause basis to believe the person did it. This is in stark contrast to the rules for defense attorneys. Denver criminal defense lawyers can raise defenses even if they believe there is little chance of succeeding. That's because prosecutors are "agents of justice" while defense attorneys are to be zealous advocates for their clients.

In Colorado, for more minor crimes, there may be no charging process at all. In fact, for most DUIs, the police report is the charging document. The police officer puts in the statutes you violated. The computer generates a charging document. The charging document is given to you or mailed to you. To satisfy the ethical obligation, the prosecutor simply drops the case if it is no longer supported by probable cause.

For other crimes, a document called an "information" may be used. This is prepared by the prosecutor after reviewing the police report and any other relevant information in the case. It tells the defendant what statutes he violated, what acts violated those statutes, when those acts happened and where. It gives most of the information necessary to at least know what happened.

In cases where there is an indictment, the process is much different. In those cases, a grand jury is convened. This is not like a trial. The prosecutor basically "runs" the grand jury. He presents evidence, can get witness testimony, and at the end can ask the grand jury to issue an indictment. Because the grand jury is not there to protect the defendant's rights, the defendant cannot really "do anything" about the grand jury. The defendant may benefit from the grand jury indirectly, though, if witness testimony ends of being favorable to the case at trial. He may be able to get transcripts from the grand jury session and introduce those into evidence.

A final note on grand juries (particularly those in federal court) is that they are not always used to prosecute cases. Sometimes a U.S. Attorney is not even seeking an indictment. Grand juries have very strong powers to get documents and compel testimony. So it is possible the justice department is really using the grand jury to perform an investigation. That investigation may support a criminal charge later on. It may also not support any criminal charges ever. So if you see a grand jury in the news, don't always assume that people who are asked to testify are involved in some high profile criminal activity.

Denver criminal defense lawyer / some stuff about prosecutors

This is a blog about criminal defense issues, so it's no surprise I mostly talk about Denver criminal defense lawyers and related issues. However, there's no question that the prosecutor in every case can make a big difference. Sure, a good defense attorney can make a big difference. But a lot of times it just doesn't matter how good your Denver criminal defense lawyer is: the outcome of your case will be decided by different factors. One of the biggest factors is the prosecutor's office charged with the case.

Sure, the police officer arrests you and files a report. However, it is up to the Deputy District Attorney to decide what crimes to charge you with. Many times, the same set of acts could lead to a defendant being charged with a huge number of different crimes. In that case, it is up to a combination of how the particular district attorney feels about the case, and his office's policies. If the issue is up to to the particular DA, then your Denver criminal defense attorney would have a chance at swaying the outcome. If he can build or has built a decent rapport, there is a chance for a good plea bargain. In some cases, the charges may be dropped altogether.

However, in certain cases a prosecutor's office has specific policies that prevent this sort of discretion. For example, in domestic violence cases many prosecuting offices have a policy of not dropping them at all. From a distance, this makes sense. Many times a victim of domestic violence will be intimidated into recanting the statement they made to police. Prosecuting these to the hilt makes sense then. However, if the evidence simply isn't there, going to trial looks awfully silly. It's a time drain for both sides and very stressful for the defendant. This is just one of the firmest and most common guidelines that DA's offices have. These rules aren't the law, but they make a huge difference in a defendant's ability to get a good outcome. Your attorney needs to know about them, and know whether he needs to take your case to trial to get you the result you deserve.

Denver criminal defense lawyer / defending the exclusionary rule

On this blog, I recently talked about the exclusionary rule and how it is one of a Denver criminal defense lawyer's most important tools. In that post, I alluded to some criticism of that rule. The exclusionary rule typically tends to be criticized the most out of any part of the criminal justice process. Many people see the rule as a "technicality" that allows guilty people to go free. To many in the general public, the rule simply serves slimy Denver criminal defense lawyers in their quest to let criminals roam the streets (or something like that). To them, it has nothing to do with justice or civil rights.

The most famous criticism (or maybe just the most elegant phrasing of this criticism) was Judge Cardozo's observation that the "criminal goes free because the constable has blundered." Of course there is some truth here. The remedy of not letting the evidence in to the trial has no real relation to the wrong committed by the cop. The cop is not punished by the suppression. The people (who are the plaintiff in the case against a defendant) did not do anything wrong. And yet they "lose" because somebody who committed a crime is released. Basically the theory here is that two wrongs balance each other out. Which everybody learned at about age 6 is not the case. You didn't have to go to law school to figure that out.

The issue comes when we try to think of a better way to deal with this. I don't really believe that every wrong requires something to right it. There are simply some things that will be unfair and will suck. But I firmly believe (and believed this before becoming a Denver criminal defense attorney) that the 4th Amendment cannot be one of these. The 4th Amendment is too crucial a guarantee of individual rights.

That said, the alternative remedies to the exclusionary rule fall way short. The only one I've ever seen proposed with any semblance of chance of working is allowing people to sue for violation of their 4th amendment rights. That sounds fine, until you realize you'd be regularly asking juries to award judgments against themselves (the taxpayer). Also, juries like cops, and would be unlikely to side with the plaintiff in these cases. So there are very few options to remedy a civil liberties violation. The exclusionary rule is about the best we've got.

Denver criminal defense lawyer / be clear in renouncing consent

The job for Denver criminal defense lawyers is frequently to show ambiguity and uncertainty in the facts. Today I'm going to talk about a case where uncertainty is really bad for defendants. Yesterday I talked about the consent exception to the exclusionary rule. I mentioned that consent is a crucial tool for the state. Using consent, they can avoid the burden of showing that a search was supported by a warrant and probable cause. Today I'm going to dig a bit deeper into consent, because it's just that important. Any Denver criminal defense lawyer will tell you that the nature of consent given by a defendant can make or break a case.

In general, it is people's natural reflex to be nice to police officers. That's good. There is no reason to piss off somebody who could seriously impact your fate during the potential criminal case against you. Despite all your constitutional rights, a cop who does not like you can really screw you over. However, where people struggle is finding the balance between being nice and protecting themselves. A person can be courteous and still be firm. And that's extremely important in the case of consent. The problem is that any sign of uncertainty can be taken as consent. If you say no, then OK, the court may rule you've given consent. If you've given consent in the first place, then try to revoke it, you may be out of luck. Basically, your Denver criminal defense lawyer will have a much easier time getting the evidence suppressed if you are very clear.

Also, if you make your wishes clear, you won't have to worry about going back and forth. If it appears you're unsure about letting the cops search you or your stuff, they'll keep trying to convince you. That just gives you more opportunities to say something wrong. Something that could get you in bigger trouble, or be used against you at trial. If you just say "no, you need a warrant" or "no, I want a lawyer," you're done. You get to call an attorney who will have dealt with something like this before. So be courteous, but firm in declining to consent to any searches of you or your belongings.

Denver criminal defense lawyer / the consent "exception"

Yesterday on the Denver criminal defense lawyer blog, I took a look at the exclusionary rule. The exclusionary rule says that if a cop does a search without a warrant and probable cause, the evidence can't be used against you in court. In that post, I mentioned that there are a lot of exceptions which mean the evidence can be used against you even if there is not a warrant and probable cause. I'm going to start with the exception that drives Denver criminal defense lawyers like me nuts: the consent exception.

Basically, the rule with consent is that if you consent to a search of your belongings, your Denver criminal defense lawyer can't come back later and suppress the evidence. This is a problem for defendants in a lot of cases, because cops are really good at getting you to consent. They'll tell you it'll go quicker if you let them have a look. They'll also imply that you don't really have a choice, they can do it the easy way or the hard way. That part is technically true, although if they do it the "hard way" you reserve your right to challenge the search later and possibly get crucial evidence thrown out of the case against you. Basically, the police will not be clear on the importance of waiving your fourth amendment rights. And make no mistake: when you consent to a search, you are waiving your fourth amendment rights.

Adding to this is a problem of basic human psychology. Many suspects think that only guilty people will invoke their rights, or refuse consent. They think if the cops hear "no," they will look more guilty, and things will go worse. However, if you've been pulled over, or stopped on the sidewalk or whatever, you already look pretty guilty in the eyes of law enforcement. Giving in to a request for a consent search isn't going to change that. It's just sacrificing one of your crucial weapons in the possible case against you down the road. Once you consent to the search, you are also telling the police that it's OK to bring anything they find into the case against you. A clear, vocal, renunciation of consent puts the burden of showing probable cause and possibly a warrant squarely on the shoulders of the prosecution. Do you really want to do the prosecutor's work for him?

Denver criminal defense lawyer / the exclusionary rule

I've already talked some about the standard of proof that law enforcement needs to get further information, probable cause. I've also talked about one powerful weapon in a Denver criminal defense lawyer's pocket: affirmative defenses. In this post, I will talk about what happens when the prosecution cannot prove there was probable cause. I will also talk about why this is another important tool for a Denver criminal defense lawyer.

The Fourth Amendment says that the government is not allowed to use unreasonable searches and seizures to get evidence against the people. Originally, the Fourth Amendment only applied to the federal government. Eventually, a bunch of Supreme Court cases said that the 14th Amendment meant that the entire bill of rights (the first 10 amendments) applied to the states as well as the federal government. So the states were also not allowed to perform unreasonable searches and seizures.

Of course, at the beginning there was no remedy. Basically the evidence from the warrantless and causeless search could be introduced. All your Denver criminal defense lawyer could do is get mad about it. After getting convicted, you could sue the police. Unfortunately, it is notoriously difficult to sue the police, or the government in any capacity for a variety of complicated reasons.

So several states and the federal government made a rule that any evidence from an unreasonable or warrantless search would not be allowed at trial. Eventually, this rule was made mandatory by the Supreme Court of the United States for every single state. This is called the "exclusionary rule." So if the police stop you on the side of the road for no reason at all, and find drugs in your bag, the evidence of the search cannot come in to court. That means the drugs can't be introduced. There are a lot of exceptions, which I may or may not go in to later on this blog, but that's essentially the gist of it.

Additionally, anything that is the direct result of the illegal search is not allowed to be introduced at trial. That means if the police search you illegally and find drugs, then you make statements confessing, those statements can't be used against you. That's because without the illegal search, you never would have made the statements at all.

The exclusionary rule is one of the most important concepts in criminal law. It deters police officers from making illegal stops. It prevents the state from benefiting from its own illegal actions. The exclusionary rule has its critics, but nobody has really figured out a better way to manage it, so essentially it's unlikely to go anywhere.

Denver criminal defense lawyer / preponderance of the evidence

So on the Denver criminal defense lawyer blog I've been looking at a variety of burdens of proof. Obviously the most crucial one in the criminal justice system is reasonable doubt. However, I've forgotten another crucial one. The "preponderance of the evidence" generally simply refers to the majority. It means there is a 50.00000000000000001 percent chance that something happened. This is the standard of proof used to determine fault in civil law cases. If you can prove you were harmed by just a bare majority of the evidence, you get damages. In criminal law, obviously the ultimate burden of proof is different. However, the "preponderance" standard still has its place.

For example, there are certain things your Denver criminal defense lawyer can use to help you get acquitted called affirmative defenses. These state that even if the prosecution actually did prove every part of the crime, you should be acquitted anyway. One of these is self defense in murder cases (this is the case in some states, I don't think it is true in every state). That means even if you intentionally kill somebody, and the prosecution can prove you did it, you can still be acquitted if you can prove self-defense. However, the prosecution does not have to prove "no self defense" beyond a reasonable doubt. It is up to you and your Denver criminal defense lawyer to prove that you acted in self-defense. So the absence of any evidence about self defense will mean you get convicted. At the same time, you don't have to prove self-defense beyond a reasonable doubt. Just having a sliver more evidence than the prosecutor will be good enough. So preponderance of the evidence is one example of where a burden of proof that is not beyond a reasonable doubt can be decisive in a criminal case.

Denver criminal defense lawyer / no contest pleas

A big part of the job for a Denver criminal defense lawyer is figuring out what kind of plea is best for his client. The most important consideration, obviously, has to do with punishment. The semantics don't matter to the client: what the defendant cares most about is (in order of priority): (1) his freedom (2) his freedom (3) his criminal record (4) his money (5) appearance of impropriety. Of course, that hasn't stopped the courts from making a big deal out of number five. In that vein, there is this thing called a "nolo contendere) plea for a Denver criminal defense lawyer and his client to contemplate. Basically, what that means is the defendant can plead guilty, subject himself to sentencing, but not actually plead guilty. It's called "no contest."

The defendant concedes that the prosecution "likely has enough evidence to convict him," and then he is sentenced as if he were guilty. The U.S. Supreme Court sort of sanctioned this behavior in North Carolina v. Alford, but was pretty ambiguous as far as actually defining it.
Throughout its history, that is, the plea of nolo contendere has been viewed not as an express admission of guilt but as a consent by the defendant that he may be punished as if he were guilty and a prayer for leniency. Fed. Rule Crim. Proc. 11 preserves this distinction in its requirement that a court cannot accept a guilty plea “unless it is satisfied that there is a factual basis for the plea”; there is no similar requirement for pleas of nolo contendere, since it was thought desirable to permit defendants to plead nolo without making any inquiry into their actual guilt. See Notes of Advisory Committee to Rule 11.

Of course this goes against everything that guilty pleas and the system should stand for: that we only convict and punish the factually guilty. Ultimately, there is very little difference between a guilty plea, and a good defense attorney would be a fool to put any real emphasis on it in the vast majority of cases.

Denver criminal defense lawyer / fictional defense lawyers

There are a lot of attorneys who do not care for fictional accounts of our profession. This Denver criminal defense lawyer is not one of them. I thoroughly enjoy Law & Order, John Grisham books, whatever, so long as it's done right. The courtroom still has some amount of romance for sure. One thing that is noticeable over the course of maybe my dad's lifetime, however, is that there are less and less criminal defense lawyers who take their place as the hero in these fictional accounts. Back in the day, a criminal defense lawyer could look on television or in the movies and books and see guys like Clarence Darrow, Atticus Finch, and Perry Mason taking on the man. These days, our lawyer heroes include Jack McCoy (the hard-boiled tough guy prosecutor from Law & Order), the JAG folks (who both prosecute and defend to be fair) and so on. It's a pretty sad state of affairs when the best defense lawyer character that immediately springs to mind is either Matthew McConaghy in the Lincoln Lawyer or Matthew McConaghy in A Time to Kill.

Obviously, to some extent this is just market research and desire not to be similar to anything that's come before. Nobody's going to make a heroic defense more awesome or more complex than Atticus Finch or the guy from Anatomy of a Murder. Of course, party of that is that there are too many Matthew McConaghys and not enough Gregory Pecks anymore. But does the lack of prevalance of heroic defense attorneys sort of symbolize our movement as a society towards a "tough on crime" stance? Probably. In the 1960s, people were very concerned about the power of the government and "the man." Defense lawyers became heroes who sort of spearheaded the fight against this. In the 80s and 90s, folks were very concerned about crime, which is when Law & Order and all those cop shows rose to prominence. With crime trending downward for the past 20 years, hopefully we will see a correction toward a more balanced view of the criminal justice system.

Denver criminal defense lawyer / witnesses no showing?

In my practice as a Denver criminal defense lawyer, I hear people come up with all sorts of reasons that their own case should be dismissed. Being trained in criminal law for three years and going through periodic recertification and continuing education classes, it turns out, is not a pre-requisite for thinking about ways to solve your own case. Which is fine, except a lot of times this leads to folks having very wrong-headed ideas about how to defend yourself and defendants firing their lawyers to accomplish this. One of the more common statements made by defendants is that the complaining witness will not show up, so they do not need to hire a Denver criminal defense lawyer or prepare for their trial.

This is a huge mistake. First, remember this is you (the little guy, have nothing, can't afford a thing) against the big, bad state of X. The state has a way of getting what it wants out of its citizens. A subpoena is a very powerful object. It tells the witness that he has to go, under penalty of contempt. Contempt means jail. It also means staying in jail until you decide to testify (remember that guy who held Barry Bonds' jock and went to jail for years to protect him?). Even if the witness tells you he's not going to show up and say anything, the idea of going to prison can make people change their mind. It has a way of changing the way people see their friendships. Sometimes freedom is more important than friends. That's why it's important to hire a Denver criminal defense lawyer and prepare for the trial as if the witness is going to show up and say all sorts of things that are bad for your case.

The second reason to hire a lawyer and be ready for a serious case against you is that it's possible the case doesn't really rely on the witness's testimony all that much. In many cases, the complaining witness is just a starting point. The investigation may have found some really good circumstantial evidence (something I'll talk about later on the Denver criminal defense lawyer blog) that makes the case strong. In that case, you need to hire a lawyer to look at the evidence and figure out how to fight it. Without an attorney, you probably won't be able to make hide or heel of the evidence, let alone begin knowing where to attack it.

Denver criminal defense lawyer / getting free legal help

I've written here before about how low income Coloradans (and criminal defendants everywhere) can get free legal help on their criminal charges. However, even though I'm a Denver criminal defense lawyer, peoople still ask me about how to solve many routine civil matters for cheap. Obviously, the best option is still to hire an attorney. Even though they are expensive, they will understand your problems better than you can, and will have more time to devote to your individual case than a legal aid lawyer would. However, not everybody can afford that. So here are a few options for clients who need a civil lawyer, not a Denver criminal defense lawyer, and can not really afford it.

(1) The first option is always going to be legal aid. In Colorado, this is called Colorado Legal Services (google it). To qualify for this program, you must be at or near the poverty line. Even if your income is below their threshold, certain services will still cost money. For example, Colorado Legal services charges $400 for a bankruptcy, I believe. However, this is still a significant discount from market rate. If you are technically indigent, legal aid is the way to go, even if the intake process takes some time for them to ensure you meet their standards.

(2) The Bar Association also offers clinics for a number of areas of law that affect regular people. (you can find these on the Colorado Bar Association's website). At a clinic, attorneys instruct folks on how to fill out forms and answer a few questions about the legal system. Although they can't go very far in helping because they aren't your lawyer, it is better than nothing.

(3) As a final resort, there are books that can help with a variety of legal topics. Even if books are not a substitute for the real advice of a lawyer, they can be better than nothing. Nolo's books can also help you understand the process even if you have an attorney.

Next on the Denver criminal defense lawyer blog I will continue the crime of the day series.

Denver criminal defense lawyer / crime profiles: disorderly conduct

Continuing with the crime profiles on my Denver criminal defense lawyer blog, I'm going to talk about something a little less severe than in the last edition of this series which was about incest. Disorderly conduct is an interesting crime because it can encompass so many things. Although it has elements like any other crimes, those elements are deeply open to interpretation and can include a huge range of different activities. The minor form of disorderly conduct means a "coarse or offensive gesture." I suppose that's supposed to mean the middle finger, though that in itself may be questionable based on free speech concerns. However, there are tons of other things this could mean. That means it's a double edged sword for people charged with a crime.

On one hand, Denver criminal defense lawyers hate laws like this since basically anybody can be charged with it. A "coarse or offensive gesture." Seriously? Show 10 people one gesture and it'll be split down the middle. Who's impression are we using here? Does somebody actually have to be "offended?" Heck, does anybody even have to be there? Is it offensive in a vacuum or not? So basically the prosecutors will essentially be able to charge a ton of different actions as "indecent exposure." That leaves Denver criminal defense lawyers with a lot of work to do when defending charges of disorderly conduct in Colorado.

On the other hand, a broad crime that is as innocent-sounding as disorderly conduct can be pretty useful. In many cases, a defendant will be charged with a crime that's not so much serious as it is embarassing. In that case, he may want to plead down to a charge that does not look too bad on the criminal record, not only in terms of severity but also in the nature of the crime. A classic example of this is public urination. Peeing in an alley is not that serious, but it carries a certain nasty rap. So somebody accused of that may prefer a plea to disorderly conduct over indecent exposure or something else, particularly since those can lead to a sex offender record.

Denver criminal defense lawyer / crime profiles: incest

So after the series on burdens of proof, I'm moving on to another issue of public importance that Denver criminal defense lawyers should be familiar with: crimes. Basically here's how it will work. I'll pick a crime every day or so and tell you about it. It might come from the Post, an interesting case I work on or hear about, or just something I'm thinking about that day. The idea here is to familiarize folks a little bit about the Colorado Criminal Code, hopefully in a way that's accessible and reasonably entertaining.

Our first crime here is something I though I saw on the news, but can no longer find a link for. It's about incest. Generally, incest is defined as sex between people who are too close on the tree of consanguinity (that's the family tree for those who aren't legally inclined). How close you have to be to call it incest depends on where you are. Heck, Franklin and Eleanor Roosevelt were like fifth cousins or something, but they weren't calling a criminal defense lawyer to defend themselves against charges. Generally, it's to the level of first cousins or closer, though some societies say it has to be within the same household.

Again though, that's not how these statutes are typically used. If two adult cousins mess around, it's pretty unlikely (read, almost certain not to) result in criminal charges. Basically, incest becomes a prosecutable offense when one of the parties is way, way, way too young to consent. At that point, it becomes a very severe sex crime, where a Denver criminal defense lawyer needs to get involved to help avoid the most severe consequences, up to a likely sentence of life in prison.


Why in the world these crimes aren't simply called statutory rape (or better, yet, just rape) is sort of beyond me. I think the state likes to throw an extra nasty stigma on those who are sick enough to mess around within their own household, which is sort of dumb. Isn't having sex with most 11 year olds pretty gross? I support getting these folks justice, but also as a Denver criminal defense lawyer want to ensure everybody gets vigorous defense.

Denver criminal defense lawyer / some evidence, yes it's a standard

One of my jobs as a Denver criminal defense lawyer is to know the ins and outs of the varying burdens of proof. Stuff like beyond a reasonable doubt, a preponderance (really just a majority) lr the evidence and probable cause are all terms people have heard. If not in high school civics or something similar, they come up all the time in the popular vocabulary of those awesome law dramas with very serious looking attorneys in very serious looking grey suits deciding very serious things. Anyway, there is one standard that is not like that: the "some evidence standard." Even half way through my training to become a Denver criminal defense lawyer, I frankly did not believe it was possible that something could be proven with basically any piece of evidence.

Here's how it works. The Supreme Court decided that making the state prove much of anything would be bad in prison disciplinary proceedings. Things happen really fast in prison. Even a short delay in the disciplinary process can result in pretty severe harm. Also, counterintuitively evidence tends to be pretty crappy for prison cases. Sure, there are guards everywhere. But pretty much every other potential witness is either afraid for his (I use his here because the vast majority of inmates are men) life or somehow on the take. The chance of getting reliable testimony beyond what the guards say is slim, to be optimistic. Given that the guard's testimony might not be even a preponderance of evidence in a case, meeting a serious burden of proof would be pretty tough. To combat these problems, and because they generally like the state better than prisoners, the Supreme Court implemented the "some evidence" standard for prison cases. It may as well be called the "guard's testimony" standard, since that's basically what all these cases rely upon.

The low standard of proof and serious consequences in disciplinary proceedings is just another reason to hire a Denver criminal defense lawyer who can do the best job fighting your charge.

Denver criminal defense lawyer / bail bondsmen are not chumps

I have pretty strong reservations about the role of bail bondsmen in the American legal system. My problem comes down to them being the only part of the law enforcement system that operates for a profit. Sure, defense lawyers make a profit, but we're fighting against the state. The bail bondsmen are there to ensure that the defendant comes to court, and they get paid for it even if the client is innocent, at the client's expense, not the state's. I've voiced these concerns about bail bondsmen before.

Still, I recognize that bail bondsmen will be a fact of life for Denver criminal defense lawyers and their clients for the foreseeable future, seeing as the surety system is in place in 47 states. Not everybody can make bail in Colorado or other states, and giving up 10% is better than staying in jail. So the current system is something we as Denver criminal defense lawyers have to deal with an understand.

In that vein, there is an interesting special in the New York Times interactive section (warning, it's a video/slideshow), about bail bondsmen. Basically the piece shows they have the most interesting job in the world, dabbling in about a million different fields that most Americans would think you need a lifetime of training to figure out.

First, as an insurance man, a bail bondsman must evaluate the risk of flight for every client. Then, to ensure he gets paid, the bail bondsman has to evaluate the value of collateral the client puts up to ensure his appearance. Then, a bail bondsman also acts as a bounty hunter for those who don't show up to court. All this stuff happens in a wild-west atmosphere with hardly any government regulation, so the guy is on his own. The lesson I took away from the piece as a Denver criminal defense lawyer was that you don't want to mess with bail bondsmen. They are incredibly resourceful, smart, and basically have freedom of the country to do whatever it takes to get defendants into court.

Denver criminal defense lawyer / Warren Jeffs and what NOT to do

Anybody who reads this blog knows it's a good idea to hire a Denver criminal defense lawyer when you're charged with a crime. You should probably hire the best and most expensive lawyer you can reasonably afford, because to an extent you get what you pay for, particularly in serious cases. And if you can't afford anything, a court appointed lawyer will do an admirable job, but with limited resources. Of course, polygamists with 90 wives don't necessarily live in the world of the sane. Warren Jeffs fired his very expensive and no doubt very good defense team in favor of representing himself, right before the trial. All those $400 hours? Up in smoke. Not only that, but the judge declined to give poor Warren more time to prep a case without a lawyer. That's consistent what happens to most people who fire their lawyers. Defendants have a right to represent themselves, but they don't have the right to get more time at the expense of courthouse inefficiency if they spring it on the court like this.

However, insanity can be an insane pro se litigant's strongest ally. Prosecutors hate trying cases against pro se defendants, because basically they have to do all the work on both sides of the case. If a reversible error (one that can cause the case to be overturned on appeal) works its way into the case, that means that same prosecutor will probably have to do a bunch more work on re-trial. Judges also try to side with the pro se litigant, since basically they know nothing about the law and will not even be able to follow the most basic courtroom procedures.

This is coming into play in the Jeffs case in full force. For the third time he's asked the judge to recuse herself. And you have to say, his arguments are mighty persuasive:

"I am to now recuse you from this case," Jeffs wrote in his transcription of the message purportedly delivered by God on Sunday. "Now sign order to recuse thyself; and allow this proceeding to stop ... "

So taken aback was the court with this action (apparently, though it shouldn't have been a surprise as it was his third motion to recuse in this case) that it stopped the trial to let another judge look at the motion. Of course, even another judge is probably pretty unlikely to be much more sympathetic.

If you are on trial, do not take the Warren Jeffs method. It will slow everything down probably, make them all mad, but is likely to turn out worse for you. Hire a Denver criminal defense lawyer and let him do the work for you.

Denver criminal defense lawyer / probable cause

In light of last week's discussion of reasonable doubt, I thought it might be useful to talk about some other burdens of proof. Reasonable doubt is obviously the most important tool for Denver criminal defense lawyers, because it can singlehandedly get the defendant acquitted without anything else. A defendant can simply argue that the prosecution did not prove the case beyond a reasonable doubt. If the jury agrees, the defendant is acquitted. That said there are several other burdens of proof (or levels to which the lawyer must prove his case) that are crucial during a criminal trial.

Probably the most important is probable cause. This is the level of proof the state must meet in proving evidence is admissible. It applies for both out of court testimony and evidence found through searches. This is because the Fourth Amendment requires officers have probable cause to believe a crime has been committed and that the search will unveil evidence of the crime (the Constitution doesn't actually say that, but the courts have read that into the amendment). So if your Denver criminal defense attorney can show that either of these things did not happen, the fruits of the search are excluded. That can be so fatal to the prosecution's case the evidence is simply excluded.

In the case of a "seizure" or an arrest, the prosecution has to show that either they had probable cause to believe a felony took place, or that they directly saw a misdemeanor. Either of these is good enough to justify an arrest. If these are not present, any answers you give during interrogation after arrest, or things found during searches at your arrest can't be put into evidence at trial.

So what in the world is probable cause anyway? Basically there is no great way to easily define it. It really is evidence that gives one pretty strong reason to suspect, though that's probably not terribly helpful either. The way lawyers look at it is this: there are a million cases where the Supreme Court and lower courts have looked at evidence and testimony and said "yes" or "no" to the probable cause determination. Your Denver criminal defense attorney knows these cases and can put together the strongest motion possible to exclude the evidence against you.

Denver criminal defense lawyer / reasonable doubt

With the prominence of the Casey Anthony "trial of the century" action, reasonable doubt as a reason to acquit a defendant has been sort of current. Regardless of the news though, I think reasonable doubt remains one of the least understood, yet most powerful, tools at the disposal of attorneys. That's frankly probably because it is not very well defined.

Ask ten different Denver criminal defense attorneys, judges or prosecutors, and you will probably get ten different responses as to what reasonable doubt actually is. There are about a hundred different definitions that can be read to the jury and have been approved under the United States constitution by the Supreme Court. However, only two things are really known about it for certain: it's the highest level of proof required in the American justice system (higher than "some evidence" (yes this is an actual standard), a preponderance (a majority), and clear and convincing evidence. Of course, this hierarchy is of little help since the courts steadfastly refuse to assign numerical probabilities to any of the standards, except for a preponderance, which is simply 50.00001% either way.

In lieu of anything actually concrete or helpful, the courts have devised a variety of explanations they can tell the jury. One is to say it's the level of confidence you use in your closest and most important private affairs. This strikes me as a good instruction for a Denver criminal defense lawyer to seek out. Drawing a comparison to the juror's personal affairs is a good way to bring out the uncertainties in the case. If the prosecution's primary witness has a lengthy criminal record, the attorney can point to that and say: would you trust this man in your most important personal affairs? With your money? To babysit your kids? While that kind of personal appeal to the jurors may seem below board, it is important to make sure the jurors understand the gravity of the situation, and understand just how hefty a burden the prosecution must bear to put a fellow citizen in prison.

Although there are a number of other explanations the court can give the jury as to what reasonable doubt is, frequently they just leave it to the jury to figure it out. In that case, the lawyers have very little to work with, except to sort of explain what they think reasonable doubt should mean in the particular case, and why it's the best definition. In that case, there will be no clean resolution except the jury's verdict.

Stay tuned to the Denver criminal defense lawyer blog where next I will be taking on burdens of proof as related to circumstantial evidence.

Denver criminal lawyer / the role of the Supreme Court

On the Denver criminal defense lawyer blog, I've been talking quite a bit about appeals. As you may have noticed, a lot of appeals end up with a failed petition to the Colorado Supreme Court and the U.S. Supreme Court. In most cases, the Supreme Court won't even hear the case. So what's it even for?

Basically the Supreme Court is more of a political institution than a court. Although the common law evolved out of hundreds of cases being heard, decided and recorded, and the Supreme Court is in the mold of a common law court, the number of cases in the entire United States makes it impossible for them to hear even a fraction of them. So they basically just pick the politically important ones--ones where the court wants to change the law in some significant way and where the facts fit their idea of a good case to change course. In fact, if you do get heard by the U.S. Supreme Court after losing at the circuit or State Supreme Court level, there's a good chance you'll win: a known saying among Denver criminal defense lawyers is that the Supreme Court hears cases to overturn them, not to affirm.

However the fraction of cases, and specifically the fraction of criminal law cases, pales to the number of cases in the United States. There are hundreds of thousands of criminal cases in U.S. state and federal courts. The Supreme Court only hears a little over one hundred each year. Of those, many are from maritime law (over which the Supreme Court has significant jurisdiction). Others are cases where states are suing other states, federal civil cases, and cases where an executive officer is charged. That means probably less than 20 criminal cases make it all the way to Washington each year. And some of those are federal! So the chances of a regular old Denver criminal defense lawyer and his client getting a day in front of the nation's high court are pretty much nothing. Because the Supreme Court is a political body and really hears cases to help in governing the country and interpreting the constitution, not to correct errors in state courts.

Denver criminal defense lawyer / federal habeas corpus

So this has been sort of a series of posts on the Denver criminal defense lawyer blog. First I talked about post-conviction relief, then direct appeals, then petitioning for review from the Supreme Courts of both Colorado and the United States. If you were scoring at home, this we've already had seven courts have the case under their umbrella. The trial court initially held the jury trial. The state court of appeals, the state supreme court, and possibly the United States Supreme Court (though probably not) all looked at it on direct appeal. After that, there was a post-conviction relief trial, which can also be appealed all the way to the state supreme court. Although it probably has been five years since the initial conviction as the case worked its way through the courts, the defendant (I'll still call him the defendant even though he was convicted long ago for sake of clarity) has one more remedy: federal habeas corpus.

Under 28 U.S.C. section 2254, a prisoner convicted of a crime in state court may challenge his detention in the United States district court where he is incarcerated. Although most folks think this just another appeal, there are a couple of distinctions and requirements that make habeas corpus a bit different. First, the defendant has to be incarcerated. Habeas corpus is a remedy for imprisonment, not anything else, so if you are looking to get an expungement, hire a lawyer for that and go to state court. Second, the claims brought in federal court must have also been brought in state court at some time or another. That means if your Denver criminal defense lawyer didn't object to something, then that wasn't raised at post-conviction relief in the state court, the federal court will decline to hear it. Finally, and this should make sense because it's federal court, the claims have to arise under the United States Constitution. State law claims can be raised in state post-conviction or state habeas.

If you meet all these requirements, it's possible to get the conviction thrown out in federal court. Of course, the defendant still needs to actually have a good case and needs a lawyer who will argue it well. Most of the mistakes are caught on direct appeal and at post-conviction, but occasionally the state and the courts really, really screw up, or do something really bad. The hardest part about trying to win at habeas is that since the defendant has already been proven guilty. The defendant now has the burden of proving the state or his lawyer messed up by a preponderance of the evidence. Habeas is hard to win, though in the right case it can be a very powerful weapon.

Stay tuned to the Denver criminal defense lawyer blog for a series of posts on the federal process.

Denver criminal defense lawyer / appealing to the Supreme Court

If the direct appeal is successful, typically the appellant (fancy word for convicted person who appealed his conviction), has a few remaining opportunities to attempt to have the conviction set aside. The first option is to petition the Colorado Supreme Court for review of the appellate court's dismissal. The defendant and his Denver criminal defense attorney can argue that the trial and appellate courts incorrectly applied the federal or state constitutions, or ignored Colorado statutes. However, the Supreme Court need not even hear the case in the first place. That's because only the initial appeal to the Court of Appeals is considered an "appeal of right." The remaining ones are a privilege. As such, the Colorado defense attorney charged with going to the Supreme Court can not skip straight to briefing the case. First, he must write a petition (a one or two page argument) telling the Colorado Supreme Court why it should even take briefs on the case. Generally the Court is looking to make a legal statement, not simply reverse the error. So the best lawyers will attempt to make an argument that the individual case represents a good opportunity for the Court to either change the law or make a statement. Of course, the odds of even having the case heard are extraordinarily slim.

However, if the court does decide to hear the case, then the real work begins. The briefing process described in the previous post happens all over again. Since the Court has already decided the case was important enough to hear, they are almost certain to have oral arguments, again as described in the post on direct appeals. If the Colorado Supreme Court does decide to hear the case, the chances of getting the appeals court's decision reversed are fairly good. However, this happens in a miniscule fraction of the cases. For all intents and purposes, the defendant should simply begin planning for the post-conviction relief process. But going through the formalities of the appeal to the Supreme Court is crucial for reasons I'll detail in the next post about habeas corpus.

After the petition to the State Supreme Court is (in all likelihood) turned down, the defendant has one last option: appeal to the United States Supreme Court. Appeals from the state supreme court do not go through the federal process with the district and circuit courts. That's because those courts only have jurisdiction over federal law cases and certain civil law cases. A petitioner from a state must go directly to the U.S. Supreme Court with an argument for why his constitutional rights were violated. Of course, this is exceedingly unlikely, since the Court hears only about 100 cases per year from the entire United States, including federal law cases, certain civil cases where people are from different states, and direct appeal cases. As I said, after the initial appeal, it is probably time to start planning for post-conviction relief.

Denver criminal defense lawyer / direct appeals

Before someone convicted of a crime can file an action for post-conviction relief and argue that his Denver criminal defense lawyer performed inadequately, he must go through the direct appeals process. This means hiring a lawyer to review the original case and find the issues that are appealable. First things first, though, the defendant must decide relatively quickly whether to file an appeal. The time limit for filing a notice of appeal is generally just 30 days. Once the defendant decides to appeal, hires a Colorado appeals attorney, and files the notice of appeal, the real work starts. First, the most important aspect of appeals, unlike the initial trial, is written advocacy. The judges do not even hear argument on the majority of cases, simply deciding them on the basis of the filings made by the parties. So the first step for the defendant and his lawyer is to review the case and look for places where the trial court may have made a mistake. Although there may be a large number of these, the defendant should focus the argument on just a few arguments, and make those arguments highly persuasive. A brief that stretches too thin and is not selective in its arguments is much less likely to succeed.

The attorney will then file a brief outlining the points where the trial court erred. The state then files a response brief with the court. The defendant hand his or her attorney may ask for the chance to bring a rebuttal, where they address new points that were brought up in the state's brief. At this point, the court may decide to decide the case or schedule it for oral argument. Oral argument only takes place where the court sees the case as exceptionally important or wants further clarification as to some of the issues in the case. Nonetheless, it is crucial that a good appellate attorney be able to both read and speak clearly to be at his most persuasive.

Denver criminal defense lawyer / what is post-conviction relief?

As a Denver criminal defense lawyer, one question I hear a lot is what sort of options a person has after being convicted of a crime. Although the vast majority of those who are convicted of crimes will end of just serving out their sentence and being released, paroled, or fined, the State of Colorado does offer a few options for those who want to challenge their convictions to the end. The first option is direct appeal, which I will talk about in a later post. After defeat on direct appeal, the convicted person may bring an action in Colorado District Court for post-conviction relief. Generally, this action will cover anything that he was not able to raise on appeal, including violations of rights under the Colorado and United States Constitutions. Post-conviction actions take two main forms.

By far the most common form of post-conviction relief action is a suit claiming the original Denver criminal defense lawyer performed ineffectively. Many times the trial attorney can make it impossible to properly appeal a case because he didn't object on the record. That means the Court of Appeals can't review that potential mistake by the trial court. Or it's also possible the Denver criminal defense lawyer didn't do a good job investigating the case. The standard in these cases is that the lawyer's conduct must fall below a reasonable standard of professional conduct. If the attorney had limited resources and made a reasonable decision on what to investigate, the court won't grant relief. Additionally, the defendant must prove at post-conviction that absent the attorney's mistake, there would have been a reasonable probability of a not-guilty verdict. So if the potentially beneficial avenue of investigation would not have changed the outcome, no relief is available.

The other common form of post-conviction relief action is against the prosecutor for misconduct. Generally this relates to evidence that was not disclosed during the discovery phase of the investigation. Since non-disclosure of relevant evidence is very serious, the burden here isn't quite as high. However, it also doesn't happen very much. Prosecutors know their convictions can be thrown out if they don't disclose, so they are scrupulous.

Next post will be about direct appeals. Stay tuned.

Denver criminal defense lawyer / the mechanics of payment

One of the misconceptions I frequently hear as a Denver criminal defense attorney is that a retainer is simply a fee that you pay to your lawyer at the beginning of the case that you'll never see again. While it's true that it's unlikely that you'll get much of your retainer back, this is not true for important reasons. In reality, the retainer is a security that you will pay for the legal services. It's like a deposit for your rent. The attorney is not allowed to use the money for anything until he earns the money. That means the money must be kept in a separate account until the attorney "earns" the money, or actually does legal work to the value of the money. Technically, the money in the trust account is still yours until the attorney bills for the work, on either an hourly or fixed fee basis (attorneys that represent clients in contingency fee cases generally do not take a retainer since they front the costs of the case until the judgment comes down). It's an extremely serious ethical violation to take money from the trust account before it is earned, or mingle it with personal funds.

An additional question many Denver criminal defense attorneys get is whether you have to pre-pay for everything. Generally, attorneys vastly prefer that you give a retainer for the cost of the entire case. That's because we're lawyers, not bill collectors! However, you may be able to negotiate some sort of payment plan. This will typically involve paying half the fee up front, then an equal second payment. To secure the second payment, the lawyer will usually ask for a credit card to authorize up front, or a post dated check. Additionally, you'll usually get a discount for prepayment. However, if it's not possible, be sure to ask your defense lawyer about the possibility of a payment plan.

Denver criminal defense lawyer / free consultations deconstructed

Most Denver criminal defense lawyers offer some sort of initial consultation free of charge. Does that mean we're just giving our services away? A client could go to 30 consultations, ask the right questions, and have all the information he needs to defend his own case without paying a red cent to a lawyer? Unfortunately, this isn't exactly the case.

The initial consultation frankly has more to do with money than anything else. The lawyer wants to figure out if he can help you out with your legal issue, what a fair fee will be, and whether you can pay that fee. If the Denver criminal defense lawyer gets the idea that he can't help you with the legal issue, or that you can't or won't pay his fee, he'll probably advise you to go elsewhere. The "free consultation" is really just a quick way for him to get a look at the case and decide exactly what to quote you. The legal advice you get will probably be a pretty bare bones explanation of what's going to happen in the case (and what the lawyer can do for you--basically that is a sales pitch).

None of this is going to be remotely useful to a defendant stepping into a court room against a trained and experienced prosecutor. The defendant will basically be totally lost in this situation. The consultation provides a nice road map for the case, but little in terms of actual advice. However, there are ways the client can use the consultation to his advantage.

Since the lawyer is interviewing you, you should be interviewing your Denver criminal defense lawyer. Make sure he's organized. Check what he says against what other lawyers tell you (you should still do a few consultations, just not 30). If one is way out of line with the others, he's probably wrong. Ask what he's going to do about your case (just don't ask him to guarantee an outcome, that's unethical). In the end, the consultation probably isn't as great as it seems, but it can be a very useful tool for the prospective client.