Thursday, July 28, 2011

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.

Friday, July 22, 2011

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.

Thursday, July 21, 2011

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.

Wednesday, July 20, 2011

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.

Tuesday, July 19, 2011

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.

Monday, July 18, 2011

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.

Friday, July 15, 2011

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.

Wednesday, July 13, 2011

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.

Monday, July 11, 2011

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.

Thursday, July 7, 2011

Denver criminal defense lawyer / how attorney client privilege works

The courts in Colorado and across the country understand that in an adversarial system, the defendants Denver criminal defense lawyer needs to be informed of all the facts to best mount a defense for his client. If the attorney could be forced to testify against his client as to facts that were disclosed during a meeting, the client would not want to be candid, and the attorney would be forced to guess as to what really happened. Even though the court could find out more in the short term, in the long term it would harm the adversarial system. That's why attorney client privilege is a crucial element of the system, and critical in protecting the defendant's rights.

However, there are several crucial elements for the client to know about attorney client privilege. First, it is the client's privilege. That means as the defendant in a case, your Denver criminal defense lawyer cannot share the things told to you in confidence with anybody else. However, it also means if the defendant tells a friend or family member something secret, it's not protected: it is your privilege after all. That not only means you can get in trouble if the person you tell is a gossip, it also means if the prosecution finds out about it, they can subpoena the person you told and force them to testify.

Additionally, remember that the attorney-client privilege isn't blanket protection that allows you to tell your attorney anything. It is limited to situations where you are seeking legal advice within an attorney client relationship. So if no relationship has been established, you won't be covered. Additionally, the attorney has the discretion to disclose where he believes information covered by the privilege will prevent imminent bodily harm or death, or if he believes his legal advice has been used to perpetrate a fraud scheme. Despite these exceptions, the attorney-client privilege offers very strong protection to those seeking legal advice, and you shouldn't hesitate to disclose most everything without fear that your Denver criminal lawyer will tell anybody else.

Tuesday, July 5, 2011

Denver criminal defense lawyer / how do expungements work?

In some cases, even where your Denver criminal defense lawyer is able to negotiate a reasonable charge in exchange for a guilty plea, the defendant may be subject to pretty serious after-the-fact consequences. Just by having a conviction on your criminal record, it becomes much more difficult to get a good job, find a place to live, and generally lead a normal life. Additionally, later convictions will be met with steeper penalties.

How can you avoid these consequences? In the case of certain, more minor, offenses, they simply fade off the record over time. At a certain point, they will stop appearing on background checks, and therefore stop affecting the person's ability to lead a normal life. However, in other cases, this period of time is quite long (up to 10 years or more) and the defendant wants to get out from under the record hit earlier. In other situations, the conviction stays on the defendant's criminal record forever, unless affirmative action is taken.

This affirmative action takes the form of a motion to expunge, or a motion to seal records. A Denver criminal defense lawyer can evaluate your case to see if it is a good candidate for expungement. Typically judges have a good deal of discretion in determining whether to expunge a conviction from the record. They will consider a number of factors. These include the severity of the initial conviction, whether the defendant has demonstrated rehabilitation after the conviction was entered, and the length of time passed since the conviction. Since the decision is so heavily influenced by subjective factors, it is important to choose an attorney who can marshal all the evidence in your favor, and present that evidence in a manner that is heavily persuasive to the judge (expungements are never heard before a jury). Although they may be difficult to obtain, an expungement can be a valuable tool for people who made a mistake and want to make a fresh start where that mistake will no longer impact them.