Category Archives: Domestic Violence Defense

Colorado Domestic Violence Bail Bond Issues – No Difference Between States

 

By H. Michael Steinberg – Colorado Domestic Violence Criminal Defense Lawyer

Domestic violence cases in Massachusetts follow the same kind of knee jerk response to high profile cases in Colorado As a result of the conviction for murder of Jared Remy – the son of red Sox player Jerry Remy, ALL defendant’s in Massachusetts’ domestic violence cases will face extreme scrutiny before bail is set in their cases.

In August of 2014 Jared Remy was accused arrested and accused of assaulting his wife – Jennifer Martel. Upon his release without the setting of bail – the worst happened and he returned to beat her to death. Because of Remy’s actions – the DA instituted the kind of bail policies that have been a part of the Colorado domestic violence system for decades.

A More Aggressive Approach To Setting Bail In Colorado Domestic Violence Cases

There is no excuse for Remy’s attack on his wife – but to make every man accused domestic violence pay for Remy’s crime – is just unfair. Each case should turn on the facts of that case.

As a result of Remy’s acts – every domestic abuse case is treated differently from ever other criminal case on the issue of setting bond. Each case is rigorously screened – every police report is reviewed – every prior criminal conviction is reviewed – and a supervisor personally reviews every bail recommendation. All this takes a great deal of time.

Victim/witness advocates will call the alleged victim, and will have local police track them down if they cannot be found Web Site.

High Bails Are Now Set – Alleged Domestic Violence Victims’ Wishes Ignored

The result of one man’s actions has meant extremely high bails, or, in some cases, recommendations of no bail where the DA feels the accused poses a danger. This is true even where the domestic violence evidence is weak and the likelihood of success at trial is small.

Even where the alleged victim herself appears in the courtroom and testifies that they not only do not fear their significant other, they are literally begging the Court to release their significant others to come home, their pleas fall on deaf ears.

In cases where the recommendation is for no bail – the defendant is held without bail for up to three days. Known as “58A dangerousness detention” these defendants are held even where the prosecutor knows his or her chances of winning the case is minimal.

A Judge Speaks Out – DA Lacks Credibility

One judge sees this political grandstanding for what it is. Understanding the evidence was weak in a specific domestic violence case she cautioned the DA at his bail request and made the remarked that the bail request made her take all of the DA’s requests for bail and bail conditions “less serious.”

If Colorado’s Victim’s Rights Law Is To Mean Anything…

If Colorado’s victim’s rights law is to mean anything… it must mean that the wishes of alleged victims will be taken seriously in EVERY case. The fear of these alleged victims in most cases which involve very minor crimes – is not of the accused defendant – it is the loss of the defendant’s employment, the loss of the family home, the loss of their savings to fight the case, the creation of a criminal history that closes many doors for the accused, the loss of contact with the children of the accused and the dozens of collateral impacts on the life of the family as a result of “taking a hard line.”

Remy will spend the rest of his life in prison – fine – but the prison he has created for the thousands of domestic violence defendant’s in Massachusetts should not be his legacy to the state.

Colorado Domestic Violence Defense – Unveiling The ‘Real Abusers” and the “Real Victims”

By H. Michael Steinberg Colorado Domestic Violence Criminal Defense Lawyer – Please Email the Author at hmsteinberg@hotmail.com

Colorado Domestic Violence Defense – Unveiling The ‘Real Abusers” and the “Real Victims” – All experienced Colorado criminal defense lawyers understand that our legal system’s treatment of abuse is absurd. Law enforcement officers called to the scene of alleged domestic violence are poorly trained to fully understand the depth and character of the deep seated psychological problems and issues that underlie even the most outwardly simple acts of domestic violence.

Sometimes things are not as they seem. If you are a patrol officer dispatched to the scene of an alleged act of domestic violence, you may not understand that the “striking person” may NOT the “real abuser” in the relationship.  If a psychologist was with you  (obviously not possible) he or she might tell you that the real abuser is the person that has the real control in the relationship … that person we would call the “psychological abuser.”

The Psychological Abuser

The “psychological abuser” is usually polite, stable, manipulative and non-aggressive outwardly. They are much better at maintaining control in all instances. when the response from the less capable of the two – the “striking abuser” loses control – the “psychological abuser” is in control. .

The outwardly aggressive abuser- the one the police arrest – is made by society and the courts – to believe that since they are the “attacker,” they are the real abuser in the relationship. It is true that the person arrested for domestic violence is usually the person who has lost control over their emotions (usually the man) and may in fact be the attacker outwardly. But – in some cases – the  act of domestic violence – that striking out – may NOT be about control over the other person – on the contrary it may be about frustration – from a lack of or a loss of control.

Domestic Violence “Science” Is Sometimes Simplistic AT Times And May Be Mistaken About Outward Aggression and Abusive Control

When you read the so called “research” about domestic violence research, we are told know that domestic abuse is fundamentally about control. In abusive relationships, violence is supposed to be a manifestation of control. It is used by the aggressor to established and maintain control.

Such a reading is driven by a gender bias against men. The assumption is that the attacker is always the “abuser,” – he is the one who holds greater power and control in the relationship. This is the kind of simplistic analysis that drives the cottage industry of domestic violence therapeutic interventions.

The existing control theory fails to take into account the etiology of the aggressor’s violence.

While it is true that some “abusers” (outward aggressors) strike to regain control…they are not always the “controlling party” in the relationship. While their actions may, on the surface, appear violent, inappropriate and outwardly abusive, their behavioral actions may be reflexive in nature.

Many “outward aggressors” mindlessly seek a level playing field in their intimate relationships. At the core, these individuals remain under the psychological control of their partners and the violence they display is the result of inadequate conflict resolution skills, rather than a pathological addiction to control.

Which Is The Real Abuse – A Slap, A Push, or Constant Mental and Psychological Abuse?

An abusive relationship may have one party as the verbal aggressor while the other is psychologically controlling. Both individuals are abusers and both are victims in their abusive relationship.

A successful approach to any domestic violence prosecution -if the prosecution is truly seeking justice – must act with sensitivity to the complexities in almost all intimate relationships. Labeling the outwardly violence partner as “the abuser” ignores the true dynamics in play here.

Justice Must Be Blind – Domestic Violence “Abuse” Dynamics Are Never Simple

The prosecutions of Colorado domestic violence cases often reveal what turn out to be mutually abusive relationships. Our system of justice must be gender neutral and not simplistic or reductionistic in it’s approach these cases.

Stakeholders in domestic violence cases – the alleged victim – the defendant – eyewitnesses – family members or friends – must all approach any domestic violence criminal case with honesty and sincerity if our system of justice is ever to truly bring an end to the huge numbers of these cases crushing our courthouses in Colorado and across the country.

Colorado Domestic Violence Gun Ban Law Under Federal Law Strengthened By New Case

Colorado Domestic Violence Gun Ban Law

By H. Michael Steinberg – Colorado Domestic Violence Defense Lawyer – Attorney

Colorado Domestic Violence Gun Ban Law

Colorado Domestic Violence Gun Ban Law

Colorado Domestic Violence Gun Ban Law Under Federal Law Strengthened By New Case – A San Diego man, Daniel Chovan, was angry that a misdemeanor domestic violence conviction from 1996 deprived him of his second amendment right to bear arms.  He filed suit in the ninth circuit federal court challenging the constitutionality of a federal law making it illegal for a person convicted of misdemeanor domestic violence to ever bear arms under the second amendment again for life.

The law in question and under constitutional attack was (and still is) United States Code 18 U.S.C. § 922(g)(9). The federal law, passed by Congress in 1996 to “combat” domestic gun violence has resulted in millions of citizens losing their right to bear arms.

United States Code 18 U.S.C. § 922(g)(9)

Under 18 U.S.C. § 922(g)(9), persons convicted of misdemeanor domestic violence crimes are barredfrom possessing any firearm for life. Section 922(g)(9) establishes two exceptions under which the statute will no longer apply:

(1) “if the conviction has been expunged or set aside”;

or

(2) if the offender “has been pardoned or has had civil rights restored (if the law of the applicable jurisdiction provides for the loss of civil rights under such an offense).” 18 U.S.C. § 921(a)(33)(B)(ii).

History of United States Code 18 U.S.C. § 922(g)(9)

Originally passed to bar gun possession ONLY by those convicted of violent felonies, the law was amended and extended in 1996 to cover misdemeanor convictions of domestic violence.

Unlike Colorado, which has no method to seal – expunge a misdemeanor state conviction for a domestic violence “tagged” crime, Californians can get their convictions erased after they have completed their sentences AND persuaded the courts that they have “lived an honest and upright life” for a sufficient period of time.

The Facts of Chovan Are Simple and Familiar

The federal domestic violence gun ban was challenged by a San Diego man, Daniel Chovan, who was convicted in 1996 of assaulting his girlfriend in their mutual home. After more than a decade he attempted to buy a gun and was denied the right. Later, a new dv “complaint” was filed against him, the police went to investigate and they found several guns which they seized from his home.  He appealed.

Another case, decided in a 2008 U.S. Supreme Court ruling, held that “law-abiding, responsible citizens” have a constitutional right to possess and use guns in the home for self-defense. In that case, District of Columbia v. Heller, the U.S. Supreme Court held that the Second Amendment protects a responsible, law-abiding citizen’s right to possess an operable handgun in the home for self-defense.

The Holding Of Chovan And The Damage It Has Done To Second (2d) Amendment Rights

In a lengthy and complex decision, the Ninth Circuit Court of Appeals held, post Heller, that even a one-time perpetrator of domestic violence may no longer be considered the type of “law-abiding, responsible citizen” entitled to possess guns, based on evidence presented by the government.

The Court relied on “studies” showing that those who are considered “domestic abusers” have high rates of re-offending and often use firearms when committing their crimes and that if an invidual has been convicted of misdemeanor domestic violence assault, he or she is” likely to commit acts of domestic violence again and that, if they do so with a gun, the risk of death to the victim is significantly increased.’

A Colorado Criminal Lawyer’s View – H. Michael’s Take

Criminal attorneys in Denver, Colorado, have been criticizing the decision. This criminal lawyer in Denver believes that a federal lifetime ban on gun ownership for domestic violence misdemeanants violates the Second Amendment and that the Chovan court’s decision flies in the face of the Heller decision.

It is well known to experienced criminal attorney’s in Colorado and across the nation that when estranged wives and girlfriends call the police alleging threats of domestic violence- they are many tines false and motivated solely for reasons of vindictiveness.

Section 922(g)(9) was passed with good intentions… that guns were be kept away from domestic abusers, but the Court’s holding that the government interest extending the law to lifetime convictions – (and ignoring Heller). thus denying the right to prove an individual convicted of domestic violence can change and attain rehabilitation, is just wrong.

The important government interest of preventing domestic gun violence is not served by denying good citizens the right to bear arms, in Chovan’s case, more than 15 years after a misdemeanor conviction for dv.

The Restoration Of Gun Rights And Colorado Domestic Violence Cases

As noted above, Colorado does not have a method to restore gun rights in domestic violence convictions unless the conviction was for a municipal code domestic violence conviction.

The civil rights restoration exception under § 922(g)(9) provides legal mechanisms for which both misdemeanants and felons can qualify for restoration of their gun rights. These include pardon, expungement, and the setting aside of convictions.” In California, not Colorado, there exists a state based restoration process of civil rights that meets the requirements of the federal ban under 922(g)(9) and that process has been upheld by the Supreme Court as constitutional

In short, the fastest way to restore gun rights under federal law – would be to enact legislation in Colorado to give Colorado citizens the right to try to seal – expunge domestic violence and all other misdemeanor and felony convictions for that matter through a procedure that places in the hands of competent and elected officials the right to reverse and seal ALL misdemeanor and felony convictions more than 10 years old. Contrary to the Chovan court.

When Police Officers Lie About Domestic Violence – False Allegations in Colorado Springs

By Denver Colorado Domestic Criminal Defense Lawyer – Attorney – H. Michael Steinberg

When alleged domestic violence victims lie to obtain revenge on a former boyfriend that is a tragedy of enormous proportions. When that person – the alleged domestic violence victim – is a police officer using her office to persuade authorities that her boyfriend attacked her – that is a felony deserving of prison.

Domestic Violence - False Allegations

Domestic Violence – False Allegations

As a result of the lies of Colorado Springs police officer Sydney Huffman’s against her former boyfriend Jarrott Martinez – Martinez would sustain more than six months in jail, two jury trials ending in two acquittals and the loss of his job as a Manitou Springs police officer.

The Facts – False Allegations in Colorado Springs

In June of 2010 – Huffman told the police that Martinez – while driving – caught up to her in her vehicle, drove her off the road and then attacked and choked her. In the absence of excellent criminal defense work – which proactive investigation proved that that was a lie – this case may have ended very differently for Martinez.

Surveillance video located as a result of further investigation – proved that Martinez was at a local mall at the time of the alleged assault.

As a result of a plea agreement – Judge Larry Schwartz sentenced Huffman to 90 days of house arrest, 200 hours of community service and four-years of supervised probation. He also ordered  a mental health evaluation

Huffman was originally charged with six counts of attempting to influence a public official –18-8-306 – as a result of lying to the police in multiple attempts to obtain arrestwarrants against Martinez. The plea deal was for a guilty plea to only one count.

Under Colorado Law the crime of a attempting to influence a public official 18-8-306 is a class 4 felony punishable by two to six years in prison.

A Civil Settlement For Damages

As a result of almost two years of litigation – the City of Colorado Springs agreed to pay $480,000 to Martinez for the city’s role in the prosecution of this case.

Two Different Trials – Not Guilty Verdicts

Even after Mr. Martinez was acquitted of domestic violence charges by Huffman’s – the police sought yet another arrest warrant based on new allegations that he sexually assaulted her. These new charges were later dropped by prosecutors and a third trial was averted.

An Unbelievable Last Attempt To Withdraw From The Plea Agreement

Just before she was sentenced – Huffman tried to withdraw from her plea agreement claiming she pled guilty because she learned she was pregnant and could not go to trial. Another lie – the prosecutor had agreed to delay the trial until after Huffman had given birth.

As you might expect – Huffman, it was reported, showed no emotion in court on the day she pled guilty.

Domestic Violence – False Allegations – H. Michael’s Take

This case examines the disastrous consequences of false allegations in a Colorado domestic violence case and the result of a system that always sides with the alleged victim in the case and does not carefully scrutinize her credibility as would be the case in almost every other Colorado criminal charge.

New Push In Colorado Domestic Violence Cases To Obtain Permanent Restraining Orders – Take These Orders Very Seriously

By Colorado Domestic Violence Criminal Defense Lawyer – Attorney – H. Michael Steinberg

The impact of a domestic violence restraining order cannot be understated – this article attempts to educate you – the Colorado citizen – on the issues pressing on the target of such an order

False allegations of domestic violence are common in divorce, legal separation and child custody cases. The strategy of seeking a permanent restraining order is so commonplace today – it is almost expected as standard warfare.

New Push In Colorado Domestic Violence Cases To Obtain Permanent Restraining <a style=alcoholism Orders – Take These Orders Very Seriously” width=”150″ height=”150″ />The Consequences of A Colorado Based Allegation Of  Domestic Violence Are Widespread

False allegations of domestic have BOTH civil and criminal consequences.

The violation of so called  “Protective Orders” in criminal cases often involve incarceration or heavy fines, “no contact” orders entered which may force the alleged perpetrator to vacate the family residence and to have “no contact” with their children.

In Divorce – Dissolution – Child Custody Cases – the “civil” context consequences can be:

  1. A “Presumption” for Custody – If an act of domestic abuse has occurred, the perpetrator may  not win physical placement or physical custody.
  2. There May NOT Be A Mediation of Disputes –  In the context of such allegations – mediation is often suspended and family law disputes are taken out of the civil system.
  3. No Contact Orders – If an act of domestic abuse has been found have occurred, a Judge will enter a civil restraining order prohibiting the target of the order from contacting the alleged victim directly or indirectly, whether through letters, e-mail, phone calls or messages through third parties. In Colorado – a violation of those restraining provisions, irrespective of who initiated the contact is a criminal violation known as a Violation Of A Protective Order (VPO) which can result in jail.
  4. Eviction From The Family Home – The no contact provisions of a domestic abuse restraining order, will evict the target of the order from the family residence. A “civil assist” may be allowed for the target of the order to have the supervised removal of some personal belongings.
  5. Parenting Time Restrictions – A Colorado domestic abuse restraining order will restrict the target’s contact with his own children. This results in limited or the completed cessation of parenting time or it may compel humiliating “supervised” parenting time.
  6. Anger Management Classes May Be Ordered – A Divorce Court may require the target of a permanent restraining order to take anger management classes or other kinds of therapies as a condition of “normalizing contact” with his or her own children.
  7. A Restriction of Civil Liberties Such As Gun – Second Amendment Rights  – The entry of a domestic violence based permanent restraining order is precluded from owning or possessing a firearm for any purpose.

As you can ee – if false allegations of Colorado domestic violence are made, the stakes are very high but getting a permanent restraining order – has never been easier.

Closely Examining And Understanding The Colorado Permanent Restraining Order Process

Although the stakes are high – the actual burden on proving the case in court  – that is – the low burden of proof necessary for obtaining a civil restraining order involving allegations of domestic abuse and the fast track methods used to obtain the order itself -are a scandal in Colorado.

The Low Burden Of Proof For Winning A Permanent Restraining Order

The person seeking a Colorado Permanent Restraining Order need only prove their claim by  a “preponderance of the evidence.” A “preponderance” means that the petitioner must ONLY PROVE that it is “more likely than not” that the type of abuse alleged occurred.

This is the lowest legal standard of proof in the court system.

Judges will often will issue a permanent restraining order very weak and questionable evidence. They will err on the side of caution because of the fear of unwanted attention to their decision should actual violence follow a decision NOT to issue the order.

No Time To Prepare For The Final – Permanent – Restraining Order Hearing

After the temporary restraining order is issued and served – the permanent restraining order hearing is set within 14 days. There is little or no time to prepare. This is true especially for someone who has never been in court. Crowded court dockets require inexperienced respondents to these hearings little time to prepare a solid and just response to false allegations of abuse.

Unfair Limits On The Court Time Allowed To Conduct The Permanent Restraining Order Hearing

Even when the hearing is held, the judge – often with a dozen hearings to conduct – will limit the introduction of testimony and the evidence to help fit all of the pending cases into the Judge’s  busy court schedule. The legal ramifications of the entry of this permanent order may be a lifetime of complications – but the time afforded the defense of false allegations is often less than an hour or two to present the case and since the defendant presents his case after the petitioner presents her case – the time nay be limited even more so.

The Ex Parte Process Imposing A Temporary Order On Little To No Evidence

In Colorado – the issuance of a Temporary Restraining Order – is ex-parte.. that means only the person seeking the temporary restraining order is present in court.

The ex parte restraining order is usually entered with the assistance of a so called “battered woman’s shelter advocate.” Although ex parte relief is supposed to be emergency relief  – the allegations made in court are often gross exaggerations or even outright lies. They are singularly one sided without and without testing or rebuttal by the person who is the accused.

As a result of this one sided submission, most judges issue a temporary restraining order that wreaks havoc on the target’s life. It removes him from the family home, ends contact with his children, and compels the setting of a permanent order or final order hearing in two weeks time.

Your Options At The Final – Permanent Restraining Orders Hearing – What The Judge Will Ask You

At the “return hearing,” the judge will call the case – advise you of the issues to be decided and give you the following options:

(1) Agree to the Restraining Order but with no factual findings that abuse has occurred or

(2) Proceed to final – contested evidentiary hearing to defend against the allegations in the temporary order.

Remember:

(1) In Colorado – unlike many other states – a permanent restraining order is just that – PERMANENT – unless it is later modified by a subsequent court order – and that is VERY difficult.

(2) ANY violation of the restraining order results in a new criminal charges for domestic violence no matter how insignificant the violation. That means mandatory arrest, no bond holds, and can be used in divorce court in later civil proceedings. 

If You Can Afford One – Get A Lawyer Experienced In Defending These Cases

Yes it is expensive but so is the impact on your life if you lose. If you cannot afford a good lawyer then contest the allegations in court and present an aggressive defense. Anyone can be the victim of false allegations of domestic violence in Colorado.

The weak laws defining what abuse is – it is what the judge says it is – and the low burden of proof at the hearings and standards of proof set out in Colorado law – place the target of the restraining order at a considerable disadvantage.  You must be “aggressively proactive” in fighting the charges – do NOT give up and concede defeat.

Denver Colorado Domestic Violence Criminal Defense Lawyer

ABOUT THE AUTHOR: H. Michael Steinberg – Email The Author  hmichaelsteinberg@hmichaelsteinberg.com or call his office at 303-627-7777 during business hours – or call his cell if you cannot wait and need his immediate assistance – 720-227-7777.

Helping Clients To Make Informed Decisions In the Defense of Colorado Criminal Cases.

2013 Colorado State Law Impacts Unfair Plea Bargaining By Prosecutors In Misdemeanor Domestic Violence And Other Colorado Cases – CRS § 16-7-301

Unfair Plea Bargaining By Prosecutors In Misdemeanor Domestic Violence and Other Colorado Cases

By Colorado Domestic Violence Criminal Defense Lawyer – Attorney – H. Michael Steinberg

Unfair Plea Bargaining By Prosecutors In Misdemeanor Domestic Violence and Other Colorado Cases has occurred for decades.. A little known statute – CRS § 16-7-301 – provided not only the opportunity – but the obligation – of Colorado District Attorneys to plea bargain directly with defenseless and confused unrepresented persons just arrested and most of the time held overnight.

 Unfair Plea Bargaining By Prosecutors In Misdemeanor Domestic Violence And Other Colorado Cases

Unfair Plea Bargaining By Prosecutors In Misdemeanor Domestic Violence And Other Colorado Cases

These individuals have been denied the right to have lawyers present when they are making some of the most important decisions of their lives. The new law – Colorado House Bill 13-1210 – stops this unfair practice. It is effective on January 1, 2014.

The United States Supreme Court Sends A Message To The State Of Colorado – “Stop This Practice”

House Bill 13-1210 makes Colorado criminal law consistent with recent U.S. supreme court decisions (Missouri v. Frye and Lafler v. Cooper, (U.S. 2012)). These decisions have reinforced the 6th Amendment right to counsel during the critical stages of plea bargaining. The new law repeals subsection 4 of CRS § 16-7-301 and provides the right for a person charged with a misdemeanor, petty offense, or motor vehicle or traffic offense to obtain counsel before plea bargaining with the prosecuting attorney.

Remember the Sixth Amendment provides that “in all criminal prosecutions, the accused shall enjoy the right to . . . the Assistance of Counsel for his defence.”

Three distinct threshold limitations must be satisfied for the right to a lawyer under the Sixth Amendment:

First, the right to counsel must have attached;

Second, the stage during which the alleged harm to the defendant occurred must be deemed a “critical” stage;

and

Third, the defendant must able to be sentenced to actual incarceration following his trial or plea.

The OLD Colorado Plea Bargaining Law – Unfairness And Unjust Unequal Negotiations

The old law – to be changed in January of 2014 – provided that an initial appearance under Colorado Rule 5 was insufficient to trigger the attachment of the right to counsel. During the initial appearance in Colorado, referred to as a Rule 5 Advisement – (“the Crim. P. 5 proceeding,”) – the defendant is advised of the nature of the charges against him. These rights, including the right to counsel, to a jury, and the right against self-incrimination—and the terms of his bail, if he is bailable, are set at that time.

Under the Old Law – for misdemeanors, petty offenses, or offenses under title 42, C.R.S. [traffic offenses], the prosecuting attorney is obligated to tell the unrepresented defendant any plea offer at the first appearance in court that is based on the facts as known by the prosecuting attorney at that time.

These plea discussions are actually required to occur before the appointment of a lawyer.

The law states that:

“[t]he application for appointment of counsel and the payment of the application fee shall be deferred until after the prosecuting attorney has spoken with the defendant” about potential plea offers.

Here’s the trick that had thousands to plead guilty before consulting a lawyer.

The person detained in jail is led to believe that his immediate release will be based on a guilty plea – and – if he or she – asserts his or her right to counsel, the prosecutor informs that person that – if they cannot post bail – ( sometimes this is NOT explained by the DA) – they may have to remain incarcerated until the second appearance. Many defendants cannot stand another night in jail. Colorado’s system of requiring misdemeanor defendants to talk with prosecutors about possible plea options before the appointment of counsel is wrong at many levels.

Unfair Plea Bargaining By Prosecutors In Misdemeanor Domestic Violence and Other Colorado Cases – The Procedure – An Example In The Denver County Courts

1. The First Advisement

In Denver’s county courts – the plea bargaining process starts with the accused viewing a standardized set of recorded warnings. All defendants watch a video advisement, listen to an audio advisement, or read a written advisement of their rights before speaking to the district attorney.

The advisement contains an explanation of the initial appearance and provides an overview of the individual constitutional and statutory rights, including the right to counsel, to which each defendant is entitled. These other rights as described in the advisement include the right to bail, the right to a jury trial, the right to a speedy trial, and the right to remain silent.

2, The Meeting With The DA

Following the advisement, and before the judge comes out to conduct the hearing, a district attorney speaks directly with each defendant in the manner that is presently (again to be changed on Jan 1 2014) required by CRS § 16-7-301.

The plea offer occurs just before the judge comes out and is told to the defendant in the courtroom in the immediate minutes immediately prior the formal advisement an arraignment on the complaint.

3. If The Plea Bargain Is Accepted

If the unrepresented defendant accepts the plea offer – the defendant is given a written advisement of their constitutional rights known as the “Rule 11” advisement form. This form explains the enumerated constitutional and statutory rights the defendant waives by pleading guilty as well as the possible penalties for the criminal conviction agreed to.

After the defendant signs the “Rule 11 form,” the district attorney informs the court of the proposed plea bargain which includes the agreed upon penalty, and then the form is given to the judge.

The judge then gives an oral advisement of the same Rule 11 rights and makes the ironic finding on the record that the defendant’s plea was entered knowingly, voluntarily, and intelligently; and that there is a factual basis, or valid waiver of the establishment of a factual basis, for the plea.

The NEW Colorado Plea Bargaining Law – Welcome Changes To The Unfairness Of The OLD Colorado Plea Bargaining Law

New Constitutional Cases decided this year – 2013 – have held that “the right to counsel guaranteed by the Sixth Amendment applies at the first appearance before a judicial officer at which a defendant is told of the formal accusation against him and restrictions are imposed on his liberty.”

The initial appearance of the defendant, where the defendant is informed of the “formal accusation” against him, triggers the attachment of the Sixth Amendment right to counsel.

The OLD Colorado law does not provide for the appointment of counsel at the defendant’s first appearance even in cases where the defendant has a right to counsel.

These new cases held – what we – in the criminal justice know only too well – “[p]lea bargaining is [a] critical stage, not only because it is ‘an essential component of the administration of justice,’ but also because ninety-five percent of convictions end in plea bargains.”

The NEW Law Strikes The Language (Section 4) In The OLD Statute (CRS § 16-7-301) That Permitted the Unjust Procedure Outlined Above

The striking of the language of Section 4 of CRS § 16-7-301 means – in Colorado – that the Sixth Amendment now applies to the critical stage of any criminal case – the process of evaluating a plea offer AND therefore – the appointment and presence of counsel are constitutionally required. The entire plea bargaining process is a critical stage to which the full protections of the Sixth Amendment apply.

Justice Anthony M. Kennedy writes that the “Criminal justice today is for the most part a system of pleas, not a system of trials,”wrote for the majority. “The right to adequate assistance of counsel cannot be defined or enforced without taking account of the central role plea bargaining takes in securing convictions and determining sentences.”

Some 97 percent of convictions in federal courts were the result of guilty pleas. In 2006, the last year for which data was available, the corresponding percentage in state courts was even higher.

“In today’s criminal justice system the negotiation of a plea bargain, rather than the unfolding of a trial, is almost always the critical point for a defendant.”

§ 16-7-301. [Effective 1/1/2014] Propriety of plea discussions and plea agreements

(1) Where it appears that the effective administration of criminal justice will thereby be served, the district attorney may engage in plea discussions for the purpose of reaching a plea agreement. The district attorney should engage in plea discussions or reach plea agreements with the defendant only through or in the presence of defense counsel except where the defendant is not eligible for appointment of counsel because the defendant is not indigent or the charged offense does not include a possible sentence of incarcerationor because the defendant refuses appointment of counsel and has not retained counsel.

(2) The district attorney may agree to one or more of the following, depending upon the circumstances of the individual case: (a) To make or not to oppose favorable recommendations concerning the sentence to be imposed if the defendant enters a plea of guilty or nolo contendere (no contest);

(b) To seek or not to oppose the dismissal of an offense charged if the defendant enters a plea of guilty or nolo contendere (no contest) to another offense reasonably related to the defendant’s conduct;

(c) To seek or not to oppose the dismissal of other charges or not to prosecute other potential charges against the defendant if the defendant enters a plea of guilty or nolo contendere (no contest);

(d) To consent to diversion, as provided in section 18-1.3-101, C.R.S.;

(e) To consent to deferred sentencing, as provided in section 18-1.3-102, C.R.S.

(3) Defendants whose situations are similar should be afforded similar opportunities for plea agreement.

(4) [Repealed by 2013 amendment.]

(5) Any plea agreement in a case involving a plea to a violation of article 18 of title 18, C.R.S., may not require a waiver by the defendant of the right to petition to have the defendant’s criminal conviction records sealed pursuant to part 3 of article 72 of title 24, C.R.S.

The Law (That Will Be) Stricken As Of January 2014:

(4) (a) In misdemeanors, petty offenses, or offenses under title 42, C.R.S., the prosecuting attorney is obligated to tell the defendant any offer that can be made based on the facts as known by the prosecuting attorney at that time. The defendant and the prosecuting attorney may engage in further plea discussions about the case, but the defendant is under no obligation to talk to the prosecuting attorney. The prosecuting attorney shall advise the defendant that the defendant has the right to retain counsel or seek appointment of counsel. The application for appointment of counsel and the payment of the application fee shall be deferred until after the prosecuting attorney has spoken with the defendant as provided in this subsection (4). Upon completion of the discussions, the prosecutor shall inform the court of whether a plea agreement has been reached, and:

(I) If a plea agreement has been reached, the prosecutor shall inform the court of the terms of the proposed plea agreement and the recommended penalty. If the court determines that the proposed plea agreement is acceptable, the court shall, in addition to any other advisement required by law, advise the defendant of the right to a court-appointed attorney prior to acceptance of the defendant’s plea. The court shall also advise the defendant prior to acceptance of the defendant’s plea that the court exercises independent judgment in deciding whether to grant charge and sentence concessions made in the plea agreement and that the court may therefore sentence the defendant in a manner that is different than that discussed during the plea discussions.

(II) If a plea agreement has not been reached and the defendant chooses to retain an attorney, or the defendant meets the requirements of section 21-1-103, C.R.S vytorin 10 20., the court shall appoint counsel and all discussions with the defendant outside of the presence of counsel shall cease.

(b) After completion of discussions as described in paragraph (a) of this subsection (4), if counsel is retained by the defendant, or if counsel is appointed for the defendant, when it appears that the effective administration of justice will thereby be served, the prosecutor may engage in additional plea discussions with the counsel for the defense for the purpose of reaching a plea agreement.

Unfair Plea Bargaining By Prosecutors In Misdemeanor Domestic Violence and Other Colorado Cases

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Contact A Denver, Colorado Domestic Violence Criminal Defense Lawyer on the issue of Unfair Plea Bargaining By Prosecutors In Misdemeanor Domestic Violence and Other Colorado Cases.

2012 – Colorado Law Changed For Failure To Obey A Subpoena – Refusal To Testify In Colorado Trial

I am often asked as a Colorado Domestic Violence Lawyer – ” what if I refuse to come to trial and testify?” Ethically – ALL lawyers know they MUST urge their clients and ALL witnesses to obey court orders and testify – even when they do not want to ..this is because the criminal justice system would collapse if witnesses could pick and choose when they will obey a Court Order of any kind.

Trials are intended to vindicate the innocent and convict the guilty.  So there are punishments allowed to be meted out by a judge of a witness or victim refuses to obey a lawfully served subpoena.

This new change in the law – governs the conduct and power of a trial judge where a witness refuses to appear and – or otherwise obey a subpoena in Colorado.  This law makes

Criminal Procedure Rule 17(h) Revised for Failure to Obey Subpoena

The Old Law – 17(H)

17 (h) Contempt. Failure by any person without adequate excuse to obey a subpoena served upon him may be deemed a contempt of the court from which the subpoena issued.

The New Law – 17(H)

The Colorado Supreme Court has amended Rule 17(h) of the Colorado Rules of Criminal Procedure – Failure to Obey a Subpoena.

The new rule reads:

(h) Failure to obey subpoena.

(1) Contempt. Failure by any person without adequate excuse to obey a duly served subpoena may be deemed a contempt of the court from which the subpoena issued hop over to this site. Such contempt is indirect contempt within the meaning of C.R.C.P. 107. The trial court may issue a contempt citation under this subsection (1) whether or not it also issues a bench warrant under subsection (2) below.

(2) Trial witness—bench warrant.

(A) When it appears to the court that a person has failed without adequate excuse to obey a duly served subpoena commanding appearance at a trial, the court, upon request of the subpoenaing party, shall issue a bench warrant directing that any peace officer apprehend the person and produce the person in court immediately upon apprehension or, if the court is not then in session, as soon as court reconvenes.

Such bench warrant shall expire upon the earliest of:

(i) submission of the case to the jury;

or

(ii) cancellation or termination of the trial.

(B) Upon the person’s production in court, the court shall set bond.

This amendment was adopted on April 23, 2012 and is effective July 1, 2012.

Here is a LINK to the New Law: 

The comments to the rule – that help explain the decision to create the new rule are as follows:

The Advisory Committee on Rules of Criminal Procedure has recommended two changes to Crim. P. 17(h), which deals generally with a subpoenaed witness’ failure to appear at a trial or hearing:

1.A clarification that such a failure to appear is indirect contempt that may be dealt with under C.R.C.P. 107; and

2.An addition codifying, but also limiting, what many trial judges across the state have always believed was their inherent power to issue bench warrants when witnesses fail to appear for a criminal trial.

The Committee recommends four limitations to this power to issue arrest warrants:

1.That it be limited to trials, and not apply to hearings;

2.That the arrested witness must be brought directly and immediately to court;

3.That a bond be immediately set; and

4.That the authority to issue the bench warrant automatically expires, and any already-issued warrant automatically is vacated, when the trial is either continued or concluded.

H. Michael’s Take:

This represents a sea change in what most lawyers thought about bench warrants issued for witnesses who fail to appear.

Here is the committee’s thinking on the reasons for the law:

..there is no Colorado rule or statute giving a trial judge any express authority to issue bench warrants when subpoenaed witnesses fail to appear for criminal trials.

“After  wide-ranging discussions over many months, a substantial majority of the Committee concluded that the uncertainties surrounding this inherent power should be formally addressed by modifications to Crim. P. 17(h), and that those modifications should expressly recognize the trial court’s power to issue bench warrants for the arrest of non-appearing criminal witnesses, as a practical alternative to indirect contempt  proceedings  under C.R.C.P. 107.”

The one dissenting member of the committee had this to say about the process:

“… the legislature has not authorized  a court to proceed with a bench warrant. [And] …there is a good reason for the indirect contempt process:  it allows for the witness to have some modicum  of process without being grabbed by law enforcement.  Perhaps service of process did not occur as relayed by the serving party, or the witness had a valid excuse (such as a belief that the witness  was placed “on  call”.)  Rather than expanding the opportunity for a peace officer to take someone into custody, the process of indirect contempt allows for a less aggressive avenue to address the problem of a missing witness, one that is much less threatening to civil liberties. For these reasons,  I am strongly against adopting a rule-based framework for issuance of a bench warrant when a criminal trial witness is alleged to have failed to appear on a subpoena.”

However – this lawyer believes that the expiration of the bench warrant for failure to appear at trial – – if the trial proceeds to verdict – or if the trial is canceled or terminated for some reason – makes complete sense and is a good fix to the present state of the law.

Indirect Contempt of Court in Colorado

Contempt of court is governed by Colorado Rules of Civil Procedure Rule 107. Rule 107 indicates that there are two types of contempt, direct and indirect. Direct contempt generally relate to actions taken in the court and contempt brought by the judge. Our attorneys rarely deal with direct contempt, as they are just not that common. Indirect contempt are contempt generally brought by one party against the other for violating the court’s order, which can be “indirectly” offensive to the court.

Contempt are further categorized as being either “remedial” or “punitive.” With punitive contempt, pure punishment is sought, whether fines or jail time (which can be up to 180 days). With remedial contempt, individuals seek an order remedying the violation of court orders. In a remedial contempt situation, the person bringing the action can also seek attorney fees. In the punitive situation, they cannot. However, C.R.C.P. Rule 107 allows a person to seek both remedial and punitive sanctions in the same action.

Woman’s False Domestic Violence Allegations Exposed In A Trial In San Francisco Court

Introduction – One of the reasons more domestic violence cases should go to trial is to have a “crack: at the lying victim…the victim who, motivated by an intent to harm the accused, tells multiple versions of her “story.”  There has never been a more critical use of the tool of cross examination than exposing the fraudulent “victim” at trial!

Here is the Story

False Allegations in California Case Illustrate Danger of Domestic Violence Laws

On the heels of a challenge to child custody, a young woman in California complained – and the District Attorney’s office charged  – a felony assault for smashing her head into a wall several times and threatening to kill she and her child.

As often happens in these cases, the prosecutor never truly “grilled” the victim about her story.  On the witness stand, the “victim” changed her story several times.  The District Attorney, embarrassed at the woman’s lack of credibility, dismissed the charges two weeks into the trial!

It was too late, the accused a 24 year old kitchen manager – already had lost everything he had, his job, and his reputation.  He demanded a trial – even though he was facing 5 years in prison – yes he was vindicated by a jury that actually clapped when the case was dismissed by the DA.

It is unknown in this recent case – February 2011 – whether the young lady was charged with making false charges.  She should face the kind of fear and anxiety the Defendant felt.

H. Michael’s Take:

The kind of travesty of justice that this case represents barely touches the surface of the problem of overreacting to allegations of sex assault or domestic violence by an individual without “testing” the truth of her story before the case goes to trial..

Read more at the San Francisco Examiner:

2012 Stand Your Ground Defense Fails In Florida Domestic Violence Case

In one of the most tragic results of a Florida Stand Your Ground defense case, a young woman has been sentenced to 20 years in prison. After the Trayvon Martin case, Florida’s Stand Your Ground law has received close scrutiny by the media.

In this case, Marissa Alexander received a 20-year sentence for firing a shot in what she claims was self-defense.

This case is the “perfect storm” for the intersection of THREE huge criminal justice risks – plea bargaining, mandatory minimum sentencing for crimes of violence, and failed affirmative defenses. In the Alexander case Marissa Alexander ran the gauntlet and her case is exemplary of:

1. The dangers of NOT plea bargaining and taking a case to trial where..

2. The Defendant faces mandatory minimum sentencing for violent crimes and

3. Is not given the shelter and protection of ancient self defense concepts by a judge who rejects the immunity offered by the state’s Stand Your Ground ….

The judge in this case rejected Alexander’s “Stand Your Ground” defense, saying she could have escaped instead of firing. Florida courts have often recognized a common law doctrine that says when someone is acting in self-defense in their home, they don’t have a duty to retreat to first.

A plea bargain of three years was rejected by Marissa by the special prosecutor assigned to try the case, Angela Corey. Alexander, hoping the jury would accept her self defense theory, instead rejected it, apparently not believing that she had been in fear for her life.

Further complicating the case is the “ex” Rico Gray, 36, had been arrested twice for domestic battery, and there was a restraining erectile dysfunction order against him in effect that night. Also, again complicating the case Ms. Alexander had a history of DV in an assault on Gray four months after the shooting.

The Mandatory Sentence Twist

The gauntlet here was the defendant’s decision to take the self defense theory to the jury after it was rejected by the judge, turning down the plea of three years, and running the risk of a mandatory minimum sentence of 20 years -(mandatory minimum sentences like the one applied here – were also passed in the 1980’s in Colorado prevent judgse from modifying the sentence to fit the crime.)

“If we want to protect self-defense in Florida, we can’t have a 20-year mandatory minimum hanging over the heads of people who fire warning shots instead of just killing their attacker,” said Greg Newburn, Florida project director for Families Against Mandatory Minimums.

And domestic violence advocates say the criminal justice system is biased against women who fight back.

“It’s not feminine for women to defend themselves,” she said. “In the minds of most people, women ought to be protected, not protect themselves.”

She Was Angry

The DA argued In court that Alexander’s shot could have hit her husband or his children and that she “was angry” when she fired the shot and “not in fear.”

But Rita Smith, director of the National Coalition Against Domestic Violence replies with this thoughtful response.

“It’s not feminine for women to defend themselves,” she said. “In the minds of most people, women ought to be protected, not protect themselves.”

“Ms. Alexander exhibited great courage and restraint in protecting herself while also not killing anyone,…”