Today, my client was sentenced to 2 days of jail and another 6 months of probation on his first DUI/DWAI because he did not get things done. If he would have done what I asked from day one, his probation would have been terminated with no more consequences. The best thing to do is complete your classes and community service.
My client failed to complete the MADD panel and failed to complete Level2 Therapy. He also owes some fines. This is despite 4 months of me asking him to get things done and setting over the case 2 times. I told him repeatedly that he would get jail if he did not get probation conditions done. In the last few months, he easily could have completed the MADD panel – it is held all over the state regularly. The Level2 therapy was dependent on his counselor, but he has 20 left at once per week. He would be almost done if he would have started when asked.
When the Court sentences you to probation, the Court orders you to do some things. Your promise to do these things is what keeps you from a jail sentence. The Court wants you to follow its orders and the Court wants you to learn some things. When you fail to follow the rules, the Court can re-sentence you to anything that it could have originally sentence you to – the sentencing range that the Court and your counsel discussed when you entered the plea. Judges do not like it when you do not follow their rules, they like order and they expect their orders to be followed.
Most people either fail to complete the classes or community service or payments or miss meetings or substance monitoring, or get a new offense.
A new offense is the most severe, especially if it is the same offense or a worse one. The new offense must be after the date the Court put the person on probation for it to be a violation. Often the new offense and its sentence will drive the result. Cases in different counties are more difficult.
Where a person fails to complete the conditions in a timely manner or does not properly work with probation, they usually come back to Court for re-sentencing and likely will get revoked and reinstated, extending the time to complete probation, including costs and sometimes get additional sanctions, like jail or work release or community service.
The best way to reduce your sentence, or even terminate your case without further consequences, is to complete the conditions of probation. I have seen Judges give a day of jail for each hour of community service that a person fails to complete or for each class missed. Get the classes done and you will be happy.
On the bright side, my client has a case set for sentencing in another county. Although he was not looking at jail in that case, we should be able to give him 2 days in that case concurrent. It will be easier for him to do it in his home county.
Almost a year later, he gets called into the equal opportunity and title ix office at University of Denver (DU). The year prior he had gone to a fraternity formal in the mountains with a girl that he was not interested in romantically, just friends. He did not even really want to go. She convinced him to take her so she could hang out with her girl-friends that were going, and to hang out with guys in the frat. So they go.
Once there, she acts like a typical young person at their first mountain frat party. Shots, beer, weed, cocaine, lap dancing, hot tubs, nearly naked, and lacking clear memory. In the morning, she feels terrible, both from all the intoxicants and some from guilt of what she must have done. She asked him what happened. You see, he was not happy about something. He was trying to avoid her. He told her that he fell asleep in the bed after midnight while she was watching Netflix. He said he woke up to her on top of him, grinding on him, she had taken his underwear off and put his penis inside her.
He did not know what to do, he did not show her he was fully away, she was still intoxicated. He moved a little, she got off of him and went to the bathroom. He rolled over and went back to sleep. He woke hoping it was a bad dream. He worried about STD. He did not like the friendship violation. He knew few would believe him or even care.
Being naïve and young, he told her what she did and that he was upset with her. They spent much of the day separately.
She had no memory. If he would have denied any sexual contact, there would never be enough evidence for him to be charged or even accused. But, he told the truth. She could not handle it and started telling a tale that allowed her to be a victim, in part because of her friend saying she was too drunk to make this decision. Wait, she has sex with a sleeping man and it’s the sleeping man’s fault. The friend did not get the full story, made assumptions and the story grows into him raping her.
This is what was said to the frat. The frat president was advised by national and counsel to send it to the Title IX office. The frat did. Equal Opportunity and Title IX at University of Denver did nothing for much of a year. It appears the girl did not cooperate or maybe Title IX was negligent in investigating. The young man’s reputation was soiled by rumor throughout his school. He had no ability to defend. It actually caused him post traumatic stress (PTSD) because he was the victim and was being blamed as the cause. Fortunately, he sought psychological help rather than hiding with drugs or worse.
Almost a year later, she goes to Equal Opportunity and Title IX at DU. She complains that the frat did nothing. She does not realize that it was actually Title IX that did nothing. She tells the tale that has been developing and growing over time with everyone saying she is a victim. In our culture, women are victims and men are perpetrators. It cannot be the other way.
How did we win?
We investigated. We took a statement from another participant at the party. He told us that he spent the evening with the girl the next night. He said they did LSD together and at one point he passed out. He came to with her on top of him having sex. He did not mind and continued with it. This was the night after she did the same to my client, the night after she claims to have been sexually assaulted by my client. This witness also told about a night a few months after the frat party where they again used drugs, he fell asleep and again he woke to her having sex with him. To him, this was OK, if a little weird.
We found that the girl had aggressively performed a lap dance on a frat boy that did not want it. He tried to get her to stop, some of it is on video. He was not interested. Her friend had to stop this and commented on how disturbed this boy was. Same friend as above.
We found that the friend was trying to make the girl go to bed, but she was complaining that everyone else was staying up and she would miss out.
We found that as she was being taken to her room, she was saying to the friend, I want to have sex and I do not care who it is.
Once in the room, the lap dance guy was there, the girl took off her shirt and tried to flirt with him.
She told Title IX that she was unaware if she had sex with other men that night. She may have. Yet, she claimed to wake up to the fear that someone had sex with her when she did not want it. She cannot even remember the consensual sex she thinks she had.
She was out of control. But, in a situation like this, the guy is to blame no matter what. That is what the college orientation materials suggest, that is what trauma informed sexual assault investigation training suggests, that is what we all know from popular culture. Women need to be taken care of, and men are bad. She made every choice that night, but she was in no way responsible for her actions. Is that feminism? I suspect Camille Paglia would say no. I am not trying to say she deserves to be raped – no, not never. But she is responsible for her actions. And when she does not like her choices, it is not his fault and no one else should pay for her actions.
We won by showing the truth. We had to fight hard to win. In the end, the school would never consider him to be a victim of her – this is bias, prejudice. In the end, they ruled that the evidence is not strong enough. They would not give her any blame or responsibility. They are not investigating the frat for having a drug party that Hunter Thompson would feel home at. They clapped their hands and walked away.
My young client will survive. His college memories will be about this one event and not much else. He is and always will have trust issues with potential dates. He has learned lessons about life. Has she? His transcript will not say “Found Responsible for Sexual Misconduct.” Many people he went to school with will always think of him as a possible rapist, even those that believe him and are his friends.
It is an uphill battle to fight Title IX cases. There is no presumption of innocence. The investigators and decision makers are trauma informed trained. [This means they excuse all actions of an accuser, all inconsistencies, all actions that do not make sense. No matter what an accuser says or does, it supports that they were sexually assaulted. You think I am wrong? Learn more about trauma informed theory. Once you spend time with it, lets talk.] The burden of proof is preponderance, which means who do I believe more. There is no burden of production once the claim is made. So, accuser reports and gives a basic story. At this point, the investigators and decision makers believe it and the accused must disprove the claim with solid direct evidence that they will believe. The current process is for the accused to disprove something. A year later. And by the way, the Equal Opportunity and Title IX office refused to accept any evidence we developed through independent investigation.
The deck is stacked against you if you are accused. But we can win. I know how. Of the last 10 Title IX cases I have worked on, we won 7, one had a very reduce charge and sentence and one we admitted to avoid an angry complainant that would bring a felony criminal charge. Only one was a true loss. In this one case, my client found a way to finish undergrad and go to graduate school. Despite having a good Federal Civil suit, he decided to stop and forget it.
I started my career as a Colorado Public Defender, practicing in Colorado Springs, Adams County and a short stint in the Steamboat Springs office. Former training director and now Jefferson County Court Judge, Susan Fisch gave me the nuts and bolts of being a lawyer. I am grateful. I learned much from the many great trial lawyers in the Public Defender’s office. I tried a bunch of cases.
After I left the PD, I went to a Trial Lawyers College regional in Estes Park, Colorado. I met Gerry Spence and a bunch of wonderful TLC staff members. It excited and scared me. I wanted more. While waiting for a verdict on a 1st Degree Murder case in Boulder, I started my application for the 3 week Trial Lawyers College. I did not know the verdict, but I knew I could have done a better trial. The following summer, I went to Dubois, Wyoming for TLC (July 2010). https://www.triallawyerscollege.org/
It was amazing. I saw the process work wonders at helping my friends lose what weighed them down and prevented them from being the best lawyer they could be. I tried to get that too, but I was not quite ready. After the glow faded, even though I won the next two trials using some of the process, I knew I did not get what I needed from TLC. So, I worked on going back for other programs.
I have been to regionals, several Graduate programs and local events. I gave up my ego and just tried to get better. I gave up on any specific agenda and just tried to absorb, learn, be open and honest. I worked on the horse.
This process helped me to lose anxiety in my life and in court. It helped me to be comfortable with myself regardless of the scary facts of a case – the fear of the possible outcome, the loathing of an ugly sentence. I was able to be in the moment. I did not hide myself from the jury. I am authentic. I help my client to be the same. The results show – I have won many tough cases that surprised clients, judges, prosecutors and colleagues.
At the same time, I have become comfortable with the TLC process. So much so that it has been noticed by TLC staff. About a year ago, I was invited to come to staff training. I went and learned and succeeded. I have taught at Psychodrama for Lawyers last summer and will teach in Alaska at the constellation in Aleyska in February. You can learn more here - https://tlc-staging.azurewebsites.net/register-for-a-course/alaska-regional-seminar-2019-voir-dire/ I will teach this summer at the July 3 week college in Dubois.
I am extremely proud of the work I have done. I am grateful for the help of my mentors and friends at TLC. I could not get here without their help. I have more work to do and will always try to get better. I am thrilled that I get to help others on this path as a Trial Lawyers College faculty, sometimes called Trial Lawyers College staff.
If some lawyer tells you that you have to plead guilty because no one will believe your story, call me. If some lawyer says s/he believes you are innocence, but you cannot win, call me. I cannot guarantee an outcome. I will work with you to tell the truth as best as it can be told. If you are innocent and no one believes you, I will. We will work to find the truth and support it, telling the jury the truth in a way where they can believe it and you can win. TLC has taught me these skills.
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