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.
Wednesday, June 6, 2012
Denver criminal defense lawyer / how to be your own lawyer
As a rule, it's a bad idea to try to be your own criminal defense lawyer. The law is simply too complicated, the rules of evidence too inane, and the complexities too difficult to figure out. In all but the most minor cases you should either hire a Denver criminal defense lawyer or apply for an attorney from the public defender's office. But in certain cases, you don't have the right to have an attorney appointed from the public defender. And some of these cases are simple enough that it may not add value to hire an attorney. You should probably get a consultation from a lawyer to see if they can help you, but if it's going to cost more to pay a lawyer than it would to be convicted (like is the case in a lot of pretty minor speeding cases) you may not want to hire one. Sometimes an attorney will know tricks they can use to get a case dismissed, which is why you need to do a consultation with a Denver criminal defense lawyer, but that's not always the case. So where do you go from there?
Basically, these minor cases are almost entirely traffic cases. Fortunately for lay people, the rules of evidence are much more relaxed for traffic infractions (as opposed to offenses, a distinction I'll get in to more later). Basically, the judge decides what comes in to evidence, and that means essentially everything comes in to evidence. So you want to marshal the evidence you can find, which means photographs from the scene of the ticket, pictures of what the officer might have seen, anything you can find that indicates the officer may not have had a clear view of the scene, and present that all to the judge. You won't be able to get discovery in advance of a hearing for a traffic infraction since again the rules are different. You will have the opportunity to examine the police officer's file, which will probably be confusing.
Just state your case concisely after the officer is done, and show the evidence you have brought. Technicalities relating to a radar gun or police equipment are unlikely to succeed in the hands of a layperson. Again, basically keep everything in the presentation very simple, as to avoid moving parts. That's probably the best way to be your own lawyer.
Basically, these minor cases are almost entirely traffic cases. Fortunately for lay people, the rules of evidence are much more relaxed for traffic infractions (as opposed to offenses, a distinction I'll get in to more later). Basically, the judge decides what comes in to evidence, and that means essentially everything comes in to evidence. So you want to marshal the evidence you can find, which means photographs from the scene of the ticket, pictures of what the officer might have seen, anything you can find that indicates the officer may not have had a clear view of the scene, and present that all to the judge. You won't be able to get discovery in advance of a hearing for a traffic infraction since again the rules are different. You will have the opportunity to examine the police officer's file, which will probably be confusing.
Just state your case concisely after the officer is done, and show the evidence you have brought. Technicalities relating to a radar gun or police equipment are unlikely to succeed in the hands of a layperson. Again, basically keep everything in the presentation very simple, as to avoid moving parts. That's probably the best way to be your own lawyer.
Tuesday, June 5, 2012
Denver criminal defense lawyer / should you turn yourself in?
As a Denver criminal defense lawyer, one of the most difficult parts of my job representing clients is helping people out who are under investigation. It is during this phase of the case that there is the most uncertainty, and frankly the least that a lawyer can do for you. Basically the police have broad discretion in deciding how they want to investigate the case and when and if they want to charge it. During the investigation, there is very little a person who's being investigated can do to help his or her cause. There are plenty of ways to screw things up though, including incriminating yourself in a variety of ways. But essentially if you don't talk to the police, there's not much else you can do.
This process can end in one of two ways. First, the charges can be dropped, which is great for everybody. Second, an arrest warrant can be issues. Although you can try to get a Denver criminal defense lawyer to try to get rid of your Colorado arrest warrant, most likely you will end up being arrested and charged. Obviously, if you are arrested without having known you had a warrant out for your arrest, there is nothing you can do. Just post bond and hire an attorney to try to fight the charge. However, if you find out there is a warrant out for your arrest before the police are at your door, you have to decide how to proceed. There are a number of reasons it might be a good idea to turn yourself in on the warrant. However, never ever do this without speaking to a Denver criminal defense lawyer.
First, turning yourself in is probably the best way to reduce the inconvenience resulting from being arrested and having to spend time in jail. Although you will almost certainly have to spend at least a night in jail, the time can be limited by surrendering at the right time so you are eligible for the earliest possible bond hearing, and so you can have all your ducks in a row prepared to post bond. Additionally, if you are arrested over the weekend you will have to spend the entire weekend in jail, because you will not be able to post bond and get out on a Saturday or Sunday, and the first advisement is generally on Monday morning.
Second, it allows you to control the circumstances of your surrender. Sometimes police officers do not exercise much discretion in deciding how to arrest you. So if you are arrested at your place of business or with friends, that could be incredibly humiliating.
Finally, if you are arrested in your own home, the police may damage a substantial amount of property. A person who suffers property damage along with being arrested will have little recourse for a lawsuit against the state.
These are three reasons that it may make sense to turn yourself in if there is a warrant out for your arrest. They don't apply in every case. Please, please, please speak to an attorney for advice on your particular case before deciding how to proceed.
This process can end in one of two ways. First, the charges can be dropped, which is great for everybody. Second, an arrest warrant can be issues. Although you can try to get a Denver criminal defense lawyer to try to get rid of your Colorado arrest warrant, most likely you will end up being arrested and charged. Obviously, if you are arrested without having known you had a warrant out for your arrest, there is nothing you can do. Just post bond and hire an attorney to try to fight the charge. However, if you find out there is a warrant out for your arrest before the police are at your door, you have to decide how to proceed. There are a number of reasons it might be a good idea to turn yourself in on the warrant. However, never ever do this without speaking to a Denver criminal defense lawyer.
First, turning yourself in is probably the best way to reduce the inconvenience resulting from being arrested and having to spend time in jail. Although you will almost certainly have to spend at least a night in jail, the time can be limited by surrendering at the right time so you are eligible for the earliest possible bond hearing, and so you can have all your ducks in a row prepared to post bond. Additionally, if you are arrested over the weekend you will have to spend the entire weekend in jail, because you will not be able to post bond and get out on a Saturday or Sunday, and the first advisement is generally on Monday morning.
Second, it allows you to control the circumstances of your surrender. Sometimes police officers do not exercise much discretion in deciding how to arrest you. So if you are arrested at your place of business or with friends, that could be incredibly humiliating.
Finally, if you are arrested in your own home, the police may damage a substantial amount of property. A person who suffers property damage along with being arrested will have little recourse for a lawsuit against the state.
These are three reasons that it may make sense to turn yourself in if there is a warrant out for your arrest. They don't apply in every case. Please, please, please speak to an attorney for advice on your particular case before deciding how to proceed.
Denver criminal defense lawyer / Twitter and Facebook
While I try to keep you abreast of the latest happenings in the criminal law world and why those might matter for you, sometimes we need to go to the basics. One such basic, as any Denver criminal defense lawyer will tell you, is your right against self incrimination. This is a pretty damn useful right, considering you can use it to avoid making statements that might harm you, and force the prosecution to prove its case against you. One problem here is that not everybody understands what could incriminate them.
Many people seem to think something posted on Facebook is private. It's not. We should all know that by now. And while it would be a violation of ethics to "friend" someone under false pretenses to gather information, there are a number of ways that information can get to your not so friends in the District Attorney's office. First, if you are posting incriminating information on Facebook, you are probably not so conscientious about your privacy settings. That means feed updates could show up on a Google search. Not every prosecutor or police officer will Google your name as part of the investigation, but they probably should.
Second, if anybody that is privy to your newsfeed is a witness in the case, they'd have to testify about that stuff or face contempt. This would generally be considered hearsay, but since it's an admission of the defendant, it would definitely be allowed in. And again, it's not the witness's (your "friend's") right against self-incrimination. That's your right, and you've waived it by admitting something willingly. This isn't supposed to be something groundbreaking. Just a friendly reminder from a Denver criminal defense lawyer to make sure you aren't screwing up your own case. If you've been charged or are being investigated for a crime, it's already hard enough with the police and the prosecutors on your back. You don't need to be your own worst enemy.
Many people seem to think something posted on Facebook is private. It's not. We should all know that by now. And while it would be a violation of ethics to "friend" someone under false pretenses to gather information, there are a number of ways that information can get to your not so friends in the District Attorney's office. First, if you are posting incriminating information on Facebook, you are probably not so conscientious about your privacy settings. That means feed updates could show up on a Google search. Not every prosecutor or police officer will Google your name as part of the investigation, but they probably should.
Second, if anybody that is privy to your newsfeed is a witness in the case, they'd have to testify about that stuff or face contempt. This would generally be considered hearsay, but since it's an admission of the defendant, it would definitely be allowed in. And again, it's not the witness's (your "friend's") right against self-incrimination. That's your right, and you've waived it by admitting something willingly. This isn't supposed to be something groundbreaking. Just a friendly reminder from a Denver criminal defense lawyer to make sure you aren't screwing up your own case. If you've been charged or are being investigated for a crime, it's already hard enough with the police and the prosecutors on your back. You don't need to be your own worst enemy.
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