Dateline:    Sunday, August 18, 2019
Regarding:    News articles referencing Wesley David Gilreath and Jason Savela

Please note Colorado Code of Professional Conduct Rule 3.6 and comments   

I recently received notice of news articles from various press outlets regarding Wesley David Gilreath.  In some of these articles, there was information about me that was inaccurate.  According to the article, the source of the information was a United States Government employee.  I have not searched for all articles on the topic, but I will update as I find additional inaccurate information.

I have no comment on where the information came from or whether it was reported accurately.  Questions regarding that are for the sources and reporters themselves.  I am not a source of any information to any news reporter or news outlet.  The list of inaccurate information is not necessarily exhaustive.

It was reported that I was present when the United States Government searched Mr. Gilreath’s home.  I do not know if his home was searched.  I have never been to his home.  I was not present during any search of his home.   I have never met nor spoken with Special Agent Justin Stern of the FBI, the reported source of information.

It was reported that I made statements about Mr. Gilreath’s beliefs to the United States Government.  I did not.  Mr. Gilreath is the only person that can speak to his beliefs.   I have never met nor spoken with Special Agent Justin Stern of the FBI, the reported source of information.

To view the press release in full, click here.

About a year or so ago, I took over a case from some out of state lawyers on a rear-ender car crash that caused my client some long-term injury.  The other personal injury attorneys got policy limits from the at-fault driver.  It was a very small amount.  It did not begin to cover the injury to my client. 

My job was to get my client’s insurance to pay for the rest.  This is called uninsured or underinsured motorist coverage (UM/UIM).  Fortunately, my client had plenty of coverage.  You should review your policy to make sure you have at least $250k in coverage.  It tends to be very cheap and will save you if a person without adequate insurance, or no insurance, hits you.  There are very few car crashes where your medicals will be under $50k.  If you have a broken bone or any kind of head injury, it can be well over $100k.

A UM/UIM case is very similar to any car crash case, except there are duties by my client to her own insurance company and duties of the insurance company to her.  We have to cooperate with them, which usually means that we have to provide a medical release and make a statement.  [Both should be done only at the direction of a competent car crash lawyer, no without one.]  The insurance company must pay the claim in a reasonable time following cooperation.  If we do not cooperate, they do not have to pay.  If they do not pay after cooperation, we can sue them for bad faith, meaning three times damages plus attorneys fees and costs.  Suffice it to say, the insurance company does not want to suffer a Bad Faith plaintiff verdict.

There were issues on this case and we had to litigate due to timing.  In the end, we were able to settle prior to trial for an amount with which my client was pleased.  I believe we got every dime the insurance company was willing to pay without a trial.  The client really did not want to go to trial. 

I was happy to help the client.  She continues to heal.  The money will help her.

Insurance companies, whether your own or the at-fault driver’s, want to pay as little as possible.  Adjusters get bonuses based on results.  When they make you an offer, it is because they think this will save them money.  An offer of $5000 or less is a low-ball offer to clear the case.  It does not represent your damage or injury.  It means the adjuster clears a case and gets closer to a bonus.  A higher offer usually means they fear the case is worth much more.

A personal injury lawyer can help maximize the offer.  A good personal injury lawyer will help to make sure you return to health.  I am not a doctor and I cannot diagnose, but if you are hurting and the doctor says nothing is wrong, we should discuss how to proceed.  You need help.

If you want a personal injury lawyer that will listen to you and work to help you get healthy, and get your bills paid, let’s talk. 

NCARDC

The NCADRC was founded to help innocent and overcharged people accused of crimes against children.  If you are charged with harming a child, you will be vilified everywhere you turn.  There are innumerable organizations only “thinking of the child” and ready to make sure you are convicted.  Many are run by folks that were harmed as children and cannot see that you could be innocent, whether sexual assault on a child, child pornography, child abuse, child death, SIDS, shaken baby or other false allegations.  Sadly, there are few groups concerned with making sure the science and other evidence is the truth.  NCADRC is one.  I went to this conference because I want to make sure the truth is told in court.

I love this conference because it focuses on science.  Nearly all of the presenters were experts in their field.  They present their argument and support it with the peer reviewed, scientific publications that show the truth.  And, we get the articles to read for ourselves.  A scientist expert is one part of the criminal defense of child abuse and sexual assault on a child.

FALSE CONFESSIONS

I enjoyed learning from Dr. Richard Ofsche on False Confessions.  I had seen him testify as an expert in a Colorado Springs homicide trial when I was a young public defender about 20 years ago.  He shows how police can make a person feel that the only way to avoid a lengthy prison sentence or the death penalty is to confess, even if you did not do it.  The popular documentary Making a Murderer shows Brendan Dassey’s “confession,” and it seems to have all the hallmarks of Dr. Ofsche’s presentation.  The Central Park Five “confessions” exhibit the same pressures and police lies.  The police present false and misleading evidence to get a confession, regardless of any actual evidence.  They break down all defenses to the crime, often using “evidence” they know is false.  Helplessness is the goal.  Once a person is helpless, they will do just about anything.  Much of this is taught to all police officers in Reid Method training, but usually not by Reid certified trainers.  I own "Criminal Interrogation and Confessions" by Inbau, Reid, Buckley and Jayne, as well as the response by Ofsche.  The first time I read it, I could not believe how closely it mirrored most of the interrogations I had in my cases.  How do innocent people end up in prison, false confessions obtained by poorly trained police (and snitch testimony).

In most criminal defense cases, including child abuse and child sex assault, the police want a confession because they know the science is lacking and these cases can turn on the word of a child.  A confession, even a false one, will convict many.  If the police are asking you questions, it usually means their case lacks something that they can solve with your statement.  Just say, I want a lawyer and nothing else.

If you are innocent, you need a criminal defense lawyer trained in spotting and fighting false confessions.  I will listen and help you show the truth.

CHILD ADVOCACY CENTERS AND FORENSIC INTERVIEWS

In any case where a child is a victim, the police will arrange a forensic interview at a child advocacy center.  Nearly every sexual assault on a child or child abuse case will have a forensic interview of the child.  I have studied these interviews and the proper protocol for over 20 years.  I have seen very few forensic interviews where the protocol was followed.  This conference added to my knowledge.

Good interviews can get accurate information from children.  Bad interviews put innocent people in prison.  A proper forensic interview of a child, following the accepted protocols, will often get the most accurate information.  Studies show forensic interviewers will revert to bad habits within weeks of training and correction.  If the child has been coached, or more likely, inadvertently suggested that certain things are true when they are not, a biased forensic interview will not show it.  Too many forensic interviewers believe abuse prior to the interview and fail to properly explore coaching, suggestion or contamination.  The reason for an unbiased investigation is to ferret out the ways innocent people get accused.  At the October 17, 2019 NCADRC conference, Dr. Michael Lamb and Dr. Kamala London discussed forensic interviews, and the science behind them.  While I support Blue Sky Bridge and other organizations that help abused children, my experience shows that they can do better.  I can spot their errors in interviewing. 

If you are innocent of sexual assault on child or child abuse, and a child has told a forensic interviewer that you are guilty, you need a criminal defense attorney that knows the science of forensic interviews.  You need a lawyer that will listen to you, and help you win.  I will.

SEXUAL ASSAULT NURSE EXAMINERS AND PHYSICAL EVIDENCE OF SEXUAL ABUSE

Wow, what I learned that I did not know.  Sexual Assault Nurse Examiners (SANE) collect evidence when a person comes to the hospital after a claimed sexual assault, whether it is date rape, rape, sexual assault, sexual assault on a child or any other form of sex crime.  The evidence is often inconclusive of anything.  But, the Sexual Assault Nurse Examiner always seems to want to testify that it is consistent with a crime.  The NCADRC taught me a lot of about the injuries they claim show a crime.  The truth is peer reviewed, published, scientific articles show much of this “evidence” is common in all people, and common in consensual sex.  Sure, it is consistent with a crime, but it is not inconsistent with innocence.  The evidence does not disprove innocence to any degree of medical certainty, let alone beyond a reasonable doubt.  Dr. Steve Guertin reviewed the relevant studies to help us better understand what the SANE evidence actually means. 

If you are accused of a sex crime like sexual assault or rape, you need a criminal defense attorney that knows the truth about SANE evidence.  You need someone that can help the jury see that truth (the prosecutor never will).  I will listen to you and we will find a way to not guilty.

METABOLIC BONE DISEASE AND FALSE ALLEGATIONS OF CHILD ABUSE

Dr. Marvin Miller presented on bone diseases that can appear, to many doctors, as if it were child abuse.  Medicine has many answers, but each individual is different.  Each case must be reviewed individually to make sure the truth comes out.  Often times, a biased investigation, sometimes with an inadequately experienced, or even biased doctor, will result in felony child abuse charges where a person is completely innocent.  There are often injuries to a baby in child-birth that are never known, including broken bones.  A year or two later, an X-Ray is done which shows healed fractures and this is used to suggest long term abuse.  The truth is it occurred in normal child-birth.  And it is common – so common that many babies have the same injury and no one will ever know it, unless they go to the hospital after an innocent fall and the wrong doctor calls it child abuse.  Dr. Miller showed us how this happens and what to do about.  I will never be fully competent to examine an X-Ray, but he shows things that anyone can see that prove innocence.  I learned what to look for, and to make sure someone that knows the science looks at the evidence before even considering a plea. 

Has your criminal defense lawyer said you have to plea even though you are innocent?  Do you want someone that will listen to you and find a way to show the truth?  Let’s talk. 

CHILD PORNOGRAPHY – WHY?

How does a person go from an average upbringing and sexual experiences to viewing child pornography?  There are reasons.  Dr. Kevin McGovern and Dr. Thomas Brewer presented their studies on how this happens.  Porn addiction is a big reason, and as with any addiction, there is often a source of addiction other than porn.  They exposed myths of those that have viewed child porn, including the common fear that all will eventually perpetrate on a child and that they cannot stop – most never will touch a child.  Sadly, there seems to be a connection between the isolation resulting from trauma and viewing child porn – our soldiers with post-traumatic stress disorder (PTSD) sometimes find themselves in this trouble.  [Anyone with trauma can get here, and MOST soldiers will never find themselves in this spot.]  Proper PTSD treatment may have avoided this result.  If you are getting deep into porn, get some help before you keep looking for a new thrill from the taboo. 

If you have been accused of child porn, you need a criminal defense lawyer that can fight the computer evidence and, if guilty, fight for a reduced sentence.

SHAKEN BABY SYNDROME

This was one of my most anticipated presentations at the NCADRC conference.  Dr. Waney Squire spoke about Shaken Baby Syndrome and destroyed it.  It is not that a baby cannot be shaken and harmed, this happens.  It is that the science that has put many people in prison is faulty. 

Dr. Squire exposed the truth and paid the price of losing her medical license.  She then won it back by showing she was right all along.  In the beginning, doctors were studying the symptoms of a class of baby deaths.  A doctor, almost offhandedly, suggested this could be the result of shaking the baby.  Others heard this suggestion, and the syndrome was born.  Years later, this same doctor revisited his shaking suggestion and was appalled that he was responsible for so much faulty “science.”  He fought against the faulty science.  The triad of symptoms that only occur in shaken babies?  Well, that is a myth – two of the three are common in babies.  The third can come from sources other than child abuse, other than shaking a baby.  The truth is there is no triad proving shaken baby syndrome. 

If you are falsely accused of shaken baby, lets talk.  You are going through a tragedy and a biased investigation is accusing you or your family member.  You need a criminal defense lawyer that will listen and find a way to show the truth.  It starts by listening to you, and not simply believing the police.

CHILD ABUSE PATHOLOGY – THE AUTOPSY

No one wants to be a pathologist in this country.  Most doctors spend very little time learning this field, and even the board-certified pathologists often have very little experience, less than 25-50 death examinations.  Almost no pathologists have experience with a child death, let alone are experts.  Dr. Kris Sperry has that experience.  He laments that the crisis of having too few pathologists is causing people to go to prison wrongly.  This presentation was designed to help criminal defense lawyers to know what to look for in the autopsy so we can decide if we need an independent pathology expert.  I learned a lot.  I already knew it starts with listening to you and working to find the truth of your case. 

If your child has died and the police are investigating, you need a lawyer that can help prevent charges.  If you have been charged with child homicide, you need a criminal defense lawyer that can fight and win. 

DNA

I have learned about DNA at various conferences over the years.  It affects numerous cases, but especially sexual assault, rape, and sexual assault on a child.  I even have a hit and run case with DNA on an airbag.  Touch DNA has changed the way we view all evidence – it allows very little DNA to be discovered.  But it also means that any contact or contact with something in contact with you, can put your DNA at a location – it’s so powerful, it almost makes DNA meaningless. 

Dr. Greg Hampikian of the Idaho Innocence Project expanded my knowledge of the science, but also how inclusions and exclusions happen.  The meaning of the DNA evidence can be more complex than CSI leads us to believe.  It is always to learn more about this every changing field. 

If the police say they found your DNA, or are asking you to submit to a DNA Swab, you need a criminal defense lawyer that knows DNA.  I do.  Collection, type of DNA, contamination, multiple donors, and more affect the meaning of DNA evidence.  I will listen to you and we will find the proof of your innocence.  I do not accept the police investigation at face value.  I will expose its weakness and show the truth. 

 There is a lot to say about this case.  If the roles were reversed, Mr. Botham Jean would probably face the death penalty for shooting a white, female cop in her apartment.  Heck, the only reason anyone considered the defense at all is because she was a police officer.  If it were two citizens, accident would not have been much of a consideration.  And it would not have made the news.  It is also unlikely a citizen would have been so quick to shoot and kill.

This is a tragedy no matter what.  Mr. Jean and his family would suffer regardless of the trial result and sentence.  Convictions do not cure pain.  Closure does not come in the courtroom.  (There will be appeals, too.)  Dealing with the pain of losing someone, or the pain of being a victim of a violent crime or sexual crime takes more than any court can give.  I recommend therapy.  If anyone promises you closure through a conviction, they are lying to you and they know it and you should seek other sources for your healing.

As a person tired of seeing police shoot black and brown people (and poor white people), and people with mental disabilities, I am happy for any conviction of a police officer.  Some might say this is a form of lynching.  I hope officers work to avoid shooting.  Police need training on de-escalation and ways to avoid shooting/killing.  They need to be trained on how to distinguish true life and death situations from the other 99.99% of situations in the world.  The true perpetrator was bad training leading to bad thinking. 

As a criminal defense attorney, I hear people say the castle doctrine or self-defense should not be allowed to be argued to a jury.  This I cannot abide.  Self-defense in all its forms is a protection for the individual when the government tries to second guess decisions, tough ones, that result in harm.  When the press is involved, prosecutors start thinking like politicians and stop caring about the facts as much as a future election.  Justice is not found in the press.  The press is about selling papers.  The press will make the facts seem a certain way to get more eyeballs, more clicks, more advertising dollars.  Politician prosecutors will think their name and photograph means they can go to Congress or the Senate or maybe even President.  But, at least they become a judge. 

In Colorado, self defense is allowed to be argued even if there is only a scintilla of evidence.  Very small.  A judge excludes the defense only very rarely because they know the appellate courts will overturn the conviction.  The law is designed to allow a citizen accused of a crime to present their defense.  It is up to the jury to decide if the defense is viable.  I believe in this theory.  And, in the case, it appears the jury found the defense to be lacking.  In another case, they might say this defense was viable.  I am not in favor of limiting self defense, a right of the people.  I favor the wisdom of the jury that sees and hears all the evidence.

Colorado has a make my day law that allows a judge to dismiss cases where person is defending themselves, their family or guests from intruders.  The defense can also be argued to a jury if the judge does not dismiss.  The basic tenants of self defense is that your reasonably believe you are facing danger, and that your response is reasonable to stop or prevent the danger you face.  The greater the danger, the greater the force you can use to prevent it. 

While I hope I never have to use force against a person, if I do need to, I want self defense to be a strong, fully developed personal right so I do not get convicted for protecting myself or my people.  These rights may not be perfectly applied or argued, but when we need them, I want them there.  Most of the time, a jury will do the right thing.

I have read about police officers saying it is illegal for a suspect or witness to record their contact with police, or for a bystander to record a police contact with others.  I was threatened with jail myself when I attempted to do this a few years ago.  I have seen in police reports that officers confiscate telephones used to record, or to throw them or destroy them.  This is illegal.  In the state of Colorado, you are allowed to record any incident involving a police officer.  Colorado Revised Statutes §16-3-311 is the law specifically allowing this.  It is reproduced in full below. 

As a practical matter, I suggest not telling the police you are recording them.  If they were going to act in a bad manner, they will change their ways.  If they want to violate the law, they will destroy your phone.  Just start recording as you see the emergency lights behind you or when you see them approaching.  Video will be difficult, but audio should be easy.  If you can, put the phone with the microphones pointed up towards your face in a pocket that allows the microphones to be exposed.

Remember to be polite, not to incriminate yourself, and to assert your rights not to talk, to have an attorney, and not to be searched without a warrant.  Then, do not answer any questions other than identifying information. 

If it’s a DUI, refuse all Roadside tests “because your lawyer told you Roadsides are BS.” Once arrested for DUI, choose a blood test for accuracy, and only refuse if you are certain to have a very high number.  See my website for more information.

Do not argue with police about what is legal or not.  It serves no purpose.  The place to discuss the legality of any police action is in Court with a lawyer, not on the street alone with a police officer that can use his authority to make your life difficult.  Just wait, the joy will be much better when we win.

BTW – recording a conversation you are not a part of, meaning you are not present for and/or the speakers cannot see you to know you could hear them, is the crime of eavesdropping.  You can record any conversation you are a participant in, or that the participants would believe you could hear (think – a conversation at the next table at a restaurant or bar).

C.R.S.A. § 16-3-311

  • 16-3-311. Peace officer incident recordings

Currentness

(1) A person has the right to lawfully record any incident involving a peace officer and to maintain custody and control of that recording and the device used to record the recording. A peace officer shall not seize a recording or recording device without consent, without a search warrant or subpoena, or without a lawful exception to the warrant requirement.

(2)(a) If a peace officer seeks to obtain from a person a device used to record an incident involving a peace officer in order to access the recording as possible evidence in an investigation, the officer shall first:

(I) Advise the person of his or her name, his or her badge number or other identifying number, and the name of the law enforcement agency;

(II) Identify the legal reason for which the information is requested; and

(III) If practicable under the circumstances, inquire whether the person will voluntarily provide the officer with a copy of the specific recording that is relevant to the investigation either by voluntarily providing the device to the officer or immediately electronically transferring the information to the officer or the law enforcement agency so that the person may retain possession of his or her device, the recording, and any personal non-evidentiary private information contained on the device.

(b) If the person consents voluntarily to the transfer of the device to law enforcement, the peace officer shall limit his or her search of the device to a search for the recording that is relevant evidence to the investigation, and the device shall be returned to the person upon request and with all convenient speed.

(c) If the person consents to an electronic transfer of the recording, the electronic transfer shall take place as soon as possible and without unnecessary delay.

(d) In circumstances when the immediate electronic transfer is not practicable or if the person does not consent to the electronic transfer of the evidentiary information or to the seizure of the device, the peace officer may arrange for the transfer or delivery of the information or device with the person to the peace officer or to the law enforcement agency by any alternative means consistent with any policies and procedures of the law enforcement agency.

(e) Notwithstanding the provisions of this section, a peace officer has the authority to temporarily seize and maintain control over a device that was used to record an incident involving a peace officer for no longer than seventy-two hours to obtain a search warrant when exigent circumstances exist such that the peace officer believes it is necessary to save a life or when the peace officer has a reasonable, articulable, good-faith belief that seizure of the device is necessary to prevent the destruction of the evidentiary recording while a warrant is obtained.

(3) The provisions of this section do not apply to devices seized incident to arrest.

(4) Nothing in this section shall be construed to allow a person to interfere with a peace officer in the lawful performance of his or her duties.

Credits

Added by Laws 2015, Ch. 212, § 2, eff. May 20, 2016.

  1. R. S. A. § 16-3-311, CO ST § 16-3-311

Current through legislation effective Sept. 1, 2019 of the 2019 Regular Session. Some statute sections may be more current. See credits for details.

He flew in from Texas early in the morning, saving hotel costs for a small business.  After dinner, he headed to the hotel and was very tired in a strange land.  Driving slowly, tentatively, he turned onto a road towards his bed.  A Colorado State Patrol did not like something he did, saying he did not come to a complete stop at the sign.  He disagrees, but . . . .

Being from out of town, he does not know what to do when accused of DUI and innocent.  I say, “refuse everything at the roadside, agree to take the blood test (or breath if you hate needles).”

He refused everything.  The Trooper arrested him for DUI and brought him to Detox.  Once he dropped him off, the Trooper left. 

Upon entry to Detox, they gave him 2 breath tests a few minutes apart.  Both came up at 0.000 BAC.  This was less than 2 hours from driving.  The legal limit is 0.050.  The human body does not eliminate alcohol faster than 0.020 BAC per hour.  Therefore, when he was driving, he was no more than 0.040 BAC, well under the limit.

Two keys to this case: 

  1. The Trooper testified that he had no reason to suspect any drugs.
  2. The client kept the 2 receipts from Detox showing the BAC (there are no records at Detox if a person is not admitted, and they are not admitted if not intoxicated).

To the best of my knowledge, I have never had an indecent exposure case prior to this one.  Many criminal attorneys call these “weeny wacker” cases.  No one likes to handle them.  For some reason, the client is looked down upon more than a person that harms another.  The guy is creepy, right.  The case is gross.  How can you defend . . . .

Well, my guy has many prior convictions and many pending.  And despite years of evidence, he has never escalated, never touched anyone, never done more than read the paper in public with his dick hanging out.  The DA wants to put him in prison for the rest of his life. 

His prior attorneys just wanted him to take a deal as soon as possible.  They never reviewed the statute or possible defenses.  They had no problem setting him up with a felony.  They never attempted to help him how to succeed on probation, or for that matter, get the treatment that would actually work.

I noticed in the current case that he was aggravated to a felony based cases from the statute as it existed prior to amendments.  The amendments added an element.  This means the priors are not priors, according to law.  If there are no priors, then it is a misdemeanor with a maximum of 2 years, rather than a habitual criminal felony with a mandatory prison 6 years on each count.  Motions filed, and while a trial judge may not grant it, the appellate courts likely would.

In reviewing that new element, and the facts, there is a defense.  The facts do not satisfy that element, at least there is no actual evidence of it.  There is speculation, which is a fancy word guessing. 

So, if the judge will not follow the law and reduce to a misdemeanor and the DA wants to put my client in prison for the rest of his life, then we will set it for trial.  And we do.  Even where you do not have a great case, weird things happen at trial that can help the defense.  I have never had a case that tried worse than it read – meaning, the police reports always sound worse than the actual evidence.  This case fits on both counts.

The witnesses gave conflicting testimony on key facts and some even gave evidence showing that they were not victims.  Just like attorneys, most people think this stuff is gross.  In the #metoo era, helping your friend, empathizing with their experience, may mean that you believe you had the experience too.  Fortunately, cross-examination is the greatest engine of truth known to man. 

After all the lay witnesses had finished testifying, a professional witness, an experienced Jefferson County Sheriff Investigator in child crimes, testified.  In response to an innocuous prosecution question (something like, “how did you get involved in this case?” normally answered by “I was dispatched” or “my boss assigned it to me”), the experienced cop answered with many words.  So many words, they were in paragraphs, and not just one paragraph, but at least three.  Somewhere in the third paragraph, the experienced cop said things that every cops should know they cannot say in trial after 6 months on the job.  Mistrial required.  Mistrial ordered.  New trial date set, everyone has to come back, well except with a new jury. 

Some might say this cop should be fired or demoted.  The cop certainly needs training.  On the other hand, a mistrial means my client is still not guilty and still not being sentenced to prison. 

The next trial would be better for the defense.  But, just prior to it starting, the DA finally made an offer that the client could accept. 

As much as I wanted to try the case, possibly winning some counts and to prove my motions issues in a higher court, I also knew that my client would spend more time in prison waiting for appellate rulings than under this deal.  I might be wrong about the appeal issues as well (doubtful).

Even where the facts or client are undesirable, unpleasant or gross, the job is the same.  If you cannot verify what the cops and prosecutors are saying is true due to your feelings, you should not take the case.  The job of a criminal defense attorney is to challenge their claims – as Vincent Gambini said in his opening statement, “Everything he just said is Bullshit.”

A close friend referred his nephew to me.  The nephew is an executive and was pulled over for his 2nd DUI, the first more than 20 years ago.  He was foolish and made a mistake that many of us have, he thought he could drive after drinking alcohol. 

We did not have much to work with. The stop was for failure to display headlights at night – he was coming out of a well lit parking lot in his wife’s car.  Once stopped, alcohol was obvious and he was arrested.  The blood test came out over 0.150 BAC without real problems.

The DA said no DWAI (the lesser) because the BAC was too high.  We wanted the DWAI to keep his license because we did not lose the DMV hearing – many expensive aspects to losing your license on a DUI over 0.150.  All other sentencing would be the same.  Despite completing Level 2 education, some therapy and a MADD class, no deal.

So, we set it for trial.

At the first trial setting, the DA filed to continue because the toxicologist was in training.  There is a due diligence argument that can prevail in front of the right judge, but it was denied here.  Essentially, the trial had been set for months, the witness issue was found out a week prior to trial, and likely, the training was not set until after the date we set trial.  No deal.

Speedy trial keeps running.

At the 2nd trial setting, there are 7 trials scheduled to go.  They cannot conduct 7 trials in one week.  Some need to get pled out.  Some will be continued, if there is time left on speedy.  Some could be dismissed.  Certain cases, due to subject matter, in custody status, or age, have priority over other cases. 

A week prior to trial, we got the deal we needed.

Happy client, happy friend.

This is why we set for trial.

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 to 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