If you haven't been living under a rock since November you know that Colorado voters chose to make marijuana "legal" in the state in November's elections. While apparently somewhat reluctant, the legislature and governor Hickenlooper have promised to respect the wishes of the voters on this matter.
However, the marijuana issue lies in a strange dark area. While Colorado has legalized marijuana (as has Washington, and also a number of other states if you have basically a sham prescription) it's still considered a schedule one drug for the purposes of the federal controlled substances act. That means at the federal level, it's still illegal not only to grow, process and sell the stuff, it's also illegal to just have it in your possession. But as a practical matter federal prosecutions make up a tiny portion of total law enforcement actions.
There's a reason for this. The DEA and FBI which are responsible for most federal prosecutions employ a tiny percentage of total law enforcement employees. Their job is mostly to deal with big problems that cross state lines or cases that are too big for state governments to deal with. Well, that and cases where the federal prosecutor has an axe to grind. But really that's not going to get most end-users in trouble.
What could really limit the legalization scheme is if the federal government decides to start going after the shops that traffic marijuana in Colorado and Washington. Additionally, Colorado's statute specifically calls for tax money from marijuana to be collected and used for schools. How will the federal government choose to treat a state agency with the specific mission of profiting (or collecting tax money, is there a difference?) from something it believes under the schedules is a harmful drug with no redeeming value? This is the real question. It's not about the end users who probably have little to fear in terms of prosecution.
Thursday, January 17, 2013
Wednesday, January 16, 2013
Denver criminal defense lawyer / sealing a DUI?
One possible resolution that a Denver criminal defense lawyer can negotiate for you is a deferred judgment. With a deferred judgment, the defendant pleads guilty to a crime, but the judge does not sentence him immediately. The defendant generally has to complete a few conditions of the judgment--generally pay restitution, and perform community service while staying out of trouble for a period of time. If at the end of that time all the conditions of the judgment are fulfilled, the defendant can petition to seal the record so the arrest does not show up on future background checks or other inquiries into the defendant's record. This works for most minor cases, particularly things like shoplifting where the court is more interested in an elaborate apology and some act of penance rather than a pound of flesh.
However, there is a major exception. The legislature considers a guilty plea to be a conviction. Although the conviction can actually be wiped clean through the record sealing process in most cases, there is an exception where the public good and public safety would be better served having that information publicly available. This primarily applies in two situations. The first is sex offenses. Although most sex offenses are serious enough such that a deferred judgment and subsequent record sealing would not be offered, some are relatively minor. And in those cases, even if it is a misdemeanor, the legislature and courts have determined that the public safety and public interest is better served having that information remain on the defendant's record.
The second main and specific exception to the ability to clear deferred judgments from your record is for DUIs. In the case In Re Harte the Court of Appeals determined that the public safety and public interest caveat to the law allowing for record sealing was intended to exclude deferred DUI judgments from record sealing. That means if you plead guilty to a DUI and the court issues a deferred judgment, even if you comply with all the rules and conditions of the deferred judgment and the case is dismissed, the guilty plea will remain on your record and there is nothing you can do about it. The broader upshot of this is if charged with a DUI, you really ought to speak to a Denver criminal defense lawyer; the consequences can be extremely serious to both your driving record and your (irreparable) criminal record. Although the case may have been dismissed after fulfilling the terms of a deferred DUI judgment, the arrest and guilty plea will remain on your record permanently.
However, there is a major exception. The legislature considers a guilty plea to be a conviction. Although the conviction can actually be wiped clean through the record sealing process in most cases, there is an exception where the public good and public safety would be better served having that information publicly available. This primarily applies in two situations. The first is sex offenses. Although most sex offenses are serious enough such that a deferred judgment and subsequent record sealing would not be offered, some are relatively minor. And in those cases, even if it is a misdemeanor, the legislature and courts have determined that the public safety and public interest is better served having that information remain on the defendant's record.
The second main and specific exception to the ability to clear deferred judgments from your record is for DUIs. In the case In Re Harte the Court of Appeals determined that the public safety and public interest caveat to the law allowing for record sealing was intended to exclude deferred DUI judgments from record sealing. That means if you plead guilty to a DUI and the court issues a deferred judgment, even if you comply with all the rules and conditions of the deferred judgment and the case is dismissed, the guilty plea will remain on your record and there is nothing you can do about it. The broader upshot of this is if charged with a DUI, you really ought to speak to a Denver criminal defense lawyer; the consequences can be extremely serious to both your driving record and your (irreparable) criminal record. Although the case may have been dismissed after fulfilling the terms of a deferred DUI judgment, the arrest and guilty plea will remain on your record permanently.
Denver criminal defense lawyer / lawyer responsibility and your money
When you hire a Denver criminal defense lawyer, you are trusting them with many things. Frequently it's your freedom or your criminal record. If your attorney screws up your case, it can be extremely costly in many ways. Another thing you will always be trusting them with is your money. Whether you pay your defense lawyer an hourly or a flat fee, you will be trusting them with your money. Why is that?
In the case of the hourly fee, you will give a sum of money called a retainer which the attorney will bill against as he accumulates hours. However, even in the case of a flat fee, the attorney can't just collect and keep the money up front. That's because you have the right to choose your attorney. If you don't like your attorney, you can fire them in the middle of the case (court permitting, more on this later) and get some of your money back.
Due to this rule, a lawyer must not simply take your flat fee and deposit it in his personal checking account. They have to break it up into chunks which are paid out of the trust account when milestones are achieved. So if a DUI costs $3,000 to defend, the attorney might get paid $750 at the outset, $750 at arraignment, $750 on receiving discovery, and $750 at the conclusion of the case. But while the money sits in the attorney's trust / escrow account, that money is still technically the client's and the client is entitled to get it back should the relationship be terminated.
As you can imagine, a lawyer's responsibility to correctly account for client funds in his trust account is a very serious thing. That's why stuff like this story is a little bit scary:
This cuts to another very important issue. Attorneys need to be responsible for the actions of their subordinates. The rules of lawyer ethics are absolutely clear on this. So when an attorney turns over the keys of his trust account to a legal secretary he's also taking responsibilities for the secretary's action and needs to be sure to monitor that activity more closely.
In the case of the hourly fee, you will give a sum of money called a retainer which the attorney will bill against as he accumulates hours. However, even in the case of a flat fee, the attorney can't just collect and keep the money up front. That's because you have the right to choose your attorney. If you don't like your attorney, you can fire them in the middle of the case (court permitting, more on this later) and get some of your money back.
Due to this rule, a lawyer must not simply take your flat fee and deposit it in his personal checking account. They have to break it up into chunks which are paid out of the trust account when milestones are achieved. So if a DUI costs $3,000 to defend, the attorney might get paid $750 at the outset, $750 at arraignment, $750 on receiving discovery, and $750 at the conclusion of the case. But while the money sits in the attorney's trust / escrow account, that money is still technically the client's and the client is entitled to get it back should the relationship be terminated.
As you can imagine, a lawyer's responsibility to correctly account for client funds in his trust account is a very serious thing. That's why stuff like this story is a little bit scary:
Because the payment was a private deal between the plaintiff, Daniel Burrage, and legal secretary Susan Pack, Mobile County Circuit Judge Michael Youngpeter ruled Tuesday, the attorney for whom Pack had worked for 27 years, Johnny Lane, wasn't responsible for Pack's theft of the money, Burrage had planned to use the money to pay off the mortgage on Pack's home, which was in foreclosure, and then split the proceeds with her when it was subsequently sold by Pack at fair-market value after she fixed it up. But due to a drug issue, Pack was fired by Lane, and when Burrage asked for his money back, it was missing from the client trust account, along with another $115,000 or so, the Birmingham News reports. She is also accused of forging signatures on client settlement checks to obtain the money for herself.The client is somewhat at fault here for engaging the legal secretary in an illegal and under the table deal to use the trust money for this scheme. But on the other hand this is an ugly episode for the attorney. Attorneys are responsible for keeping correct accounting on the trust account. There's no excuse for that amount of money to simply go missing.
This cuts to another very important issue. Attorneys need to be responsible for the actions of their subordinates. The rules of lawyer ethics are absolutely clear on this. So when an attorney turns over the keys of his trust account to a legal secretary he's also taking responsibilities for the secretary's action and needs to be sure to monitor that activity more closely.
Tuesday, January 15, 2013
Denver criminal defense lawyer / Aaron Swartz and shots fired
Even though I'm a Denver criminal defense lawyer I keep up with stuff in the national news because national and non-Colorado news can be relevant to my clients. Something that's been all over the news is the Aaron Swartz case. This case has huge implications for the practice of criminal law all over the country. It's not so much that there is anything new in the case. There are no novel legal developments here. It's the lessons of the case that are important.
I've mentioned that prosecutors have a huge amount of power over a particular in many circumstances. In most of the cases that I handle as a Denver criminal defense lawyer, none of this really comes into play. The Denver district attorney or other district attorney's office has a set guideline for what a DUI or other case will bring as a sentence. Within the set range, the deputy has discretion based on a variety of factors (including how strong he thinks the case is) to offer a plea bargain with a certain sentence, then seek a certain sentence if the trial results in a conviction.
Of course not all cases are so run-of-the-mill. A simple traffic ticket or something similar does not involve much in the way of political implications. Something that can involve real political implications is copyright infringement or intellectual property issues. That's what Aaron Swartz got himself involved in.
Now whether Mr. Swartz committed a crime at all an how severe the crime was (if you believe it was a crime) depends on how you frame the issue. Swartz's supporters and his lawyer say that he simply downloaded information that was freely available over MIT's wireless network. At the time of his arrest, Swartz had not distributed the journal articles he downloaded from the network (though it's pretty apparent that he intended to do so at some point). Swartz did not intend to gain monetarily from such a distribution.
The prosecutors say the articles were disseminated by JSTOR, a non-profit publisher, and point to the number of articles downloaded (more than 4 million) before stating the usual tripe about how intellectual property can be stolen just like regular property. We can go into this later.
However, the main point is that Swartz did not deprive anybody of the use of the articles. He only deprived JSTOR of the profit they potentially could have made distributing the articles (which I suppose is also use). It's not even all that clear that anything he did up to the point where he was arrested was illegal, since he hadn't distributed it yet.
To the extent it was illegal, he broke an incredibly obtuse and difficult to parse law which could be applied to such a huge number of people it is nearly meaningless as an enforcer of order. When people are prosecuted under the law Swartz was prosecuted under they are essentially at the mercy of the prosecutor. For more on this see the Bazelon article linked above.
Prosecutors always have a lot of discretion, but when the case is unique and prosecuted under a broad and rarely used law, their power becomes almost absurd. In this case, the prosecutor threatened a person who had really harmed nobody with up to 30 years in prison, before offering his lawyer a plea bargain of 6 months in prison.
Swartz's suicide makes the issues here more emotionally complex. However, even beyond that is the underlying issue of a prosecution to send a message. There are lots of ways to view how justice should be meted out. A deterrent rationale is certainly valid even though it would appear to punish someone more than the individual crime would warrant.
However, what's going on here is much more than a deterrent to people who might commit a crime. The determination here is that it would be too difficult administratively to punish everybody with the lighter sentences they deserve. As such, we'll just bring the wood on the few people we do choose to prosecute. That brings a level of arbitrariness to the prosecution process that should make everybody extremely uncomfortable.
With a crime like murder, we can't punish everybody because we can't catch them. With shoplifting, sometimes the store will choose not to press charges and then not much can be done. There are valid reasons for prosecuting apparently similar crimes differently. The point of the Swartz case and many other intellectual property cases however appears to not only undercut ANY rationale for choosing which cases to prosecute, but to do so deliberately and as a means of deterrent.
This seems to me to undercut the very foundations of justice. The idea of justice is that people are treated the same way, and if they are not there is a good reason for it. It is not just to hammer some law-breakers randomly in order to send a message to other lawbreakers. Could we cow people into more law-abiding behavior by following a small percentage of the population around with clandestine cameras, with the threat to the general population that any criminal act at any time might be caught and punished severely?
Of course, but such an outrageous discrepancy made at random in order to make a point strikes most everybody as outrageous. That's because it is. Prosecutorial discretion exists to make the hard choices about law enforcement's resources. If a prosecutor's office can't do everything, they can make choices about how to handle it. It shouldn't be used to make a gigantic political point, and prove the government is tough on hackers. Doing so is arbitrary and capricious to the point where it should offend people's basic sensibilities of justice.
I've mentioned that prosecutors have a huge amount of power over a particular in many circumstances. In most of the cases that I handle as a Denver criminal defense lawyer, none of this really comes into play. The Denver district attorney or other district attorney's office has a set guideline for what a DUI or other case will bring as a sentence. Within the set range, the deputy has discretion based on a variety of factors (including how strong he thinks the case is) to offer a plea bargain with a certain sentence, then seek a certain sentence if the trial results in a conviction.
Of course not all cases are so run-of-the-mill. A simple traffic ticket or something similar does not involve much in the way of political implications. Something that can involve real political implications is copyright infringement or intellectual property issues. That's what Aaron Swartz got himself involved in.
Now whether Mr. Swartz committed a crime at all an how severe the crime was (if you believe it was a crime) depends on how you frame the issue. Swartz's supporters and his lawyer say that he simply downloaded information that was freely available over MIT's wireless network. At the time of his arrest, Swartz had not distributed the journal articles he downloaded from the network (though it's pretty apparent that he intended to do so at some point). Swartz did not intend to gain monetarily from such a distribution.
The prosecutors say the articles were disseminated by JSTOR, a non-profit publisher, and point to the number of articles downloaded (more than 4 million) before stating the usual tripe about how intellectual property can be stolen just like regular property. We can go into this later.
However, the main point is that Swartz did not deprive anybody of the use of the articles. He only deprived JSTOR of the profit they potentially could have made distributing the articles (which I suppose is also use). It's not even all that clear that anything he did up to the point where he was arrested was illegal, since he hadn't distributed it yet.
To the extent it was illegal, he broke an incredibly obtuse and difficult to parse law which could be applied to such a huge number of people it is nearly meaningless as an enforcer of order. When people are prosecuted under the law Swartz was prosecuted under they are essentially at the mercy of the prosecutor. For more on this see the Bazelon article linked above.
Prosecutors always have a lot of discretion, but when the case is unique and prosecuted under a broad and rarely used law, their power becomes almost absurd. In this case, the prosecutor threatened a person who had really harmed nobody with up to 30 years in prison, before offering his lawyer a plea bargain of 6 months in prison.
Swartz's suicide makes the issues here more emotionally complex. However, even beyond that is the underlying issue of a prosecution to send a message. There are lots of ways to view how justice should be meted out. A deterrent rationale is certainly valid even though it would appear to punish someone more than the individual crime would warrant.
However, what's going on here is much more than a deterrent to people who might commit a crime. The determination here is that it would be too difficult administratively to punish everybody with the lighter sentences they deserve. As such, we'll just bring the wood on the few people we do choose to prosecute. That brings a level of arbitrariness to the prosecution process that should make everybody extremely uncomfortable.
With a crime like murder, we can't punish everybody because we can't catch them. With shoplifting, sometimes the store will choose not to press charges and then not much can be done. There are valid reasons for prosecuting apparently similar crimes differently. The point of the Swartz case and many other intellectual property cases however appears to not only undercut ANY rationale for choosing which cases to prosecute, but to do so deliberately and as a means of deterrent.
This seems to me to undercut the very foundations of justice. The idea of justice is that people are treated the same way, and if they are not there is a good reason for it. It is not just to hammer some law-breakers randomly in order to send a message to other lawbreakers. Could we cow people into more law-abiding behavior by following a small percentage of the population around with clandestine cameras, with the threat to the general population that any criminal act at any time might be caught and punished severely?
Of course, but such an outrageous discrepancy made at random in order to make a point strikes most everybody as outrageous. That's because it is. Prosecutorial discretion exists to make the hard choices about law enforcement's resources. If a prosecutor's office can't do everything, they can make choices about how to handle it. It shouldn't be used to make a gigantic political point, and prove the government is tough on hackers. Doing so is arbitrary and capricious to the point where it should offend people's basic sensibilities of justice.
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