There is a lot to say about this case. I have seen people suggest we should change the law on self-defense based on this case. I disagree. I do not want my rights to change because one person was acquitted. The Rittenhouse case was about a lot more than self-defense. I watched some and found the prosecutor to be offensive to gun owners and generally over the top. The defense was funded at about $2 million dollars, likely including more mock trials than most in any case.
If you go looking for trouble, and find it, expect to be charged with a crime. You may have self-defense, but that is a trial defense for a jury to determine. If you are considered the initial aggressor, you do not have the right to self-defense (unless you properly withdraw from the confrontation. The jury will be from the community where the act took place – each jury will view the reasonableness of self-defense differently.
There is no duty to retreat in Colorado. You may stand your ground.
This is a tragedy no matter what. The victims and their families suffer regardless of the trial result and sentence. Convictions do not cure pain. Closure does not come in the courtroom. Dealing with the pain of losing someone, or the pain of being a victim of a violent crime or sexual crime (PTSD), 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 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 the so-called Make My Day (thank you Clint Eastwood) Law that allows a judge to dismiss cases where the person is defending themselves, their family, or guests from intruders. This law allows the use of deadly force in your home when you reasonably believe you or another person may be seriously harmed if you do not use force against an uninvited intruder. If the person is leaving, this won’t apply. If the person was invited into your home, it won’t apply. The defense can also be argued to a jury if the judge does not dismiss. The basic tenant of self-defense is that you 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.
Colorado Jury Instruction on Self Defense:
USE OF NON-DEADLY PHYSICAL FORCE (DEFENSE OF PERSON)
The evidence presented in this case has raised the affirmative defense of “defense of a person,” as a defense to [insert name(s) of offense(s)].
The defendant was legally authorized to use physical force upon another person without first retreating if:
- s/he used that physical force in order to defend himself/herself or a third person from what s/he reasonably believed to be the use or imminent use of unlawful physical force by that other person, and
- s/he used a degree of force which s/he reasonably believed to be necessary for that purpose. [, and]
- [3. s/he] did not, with intent to cause bodily injury or death to another person, provoke the use of unlawful physical force by that other person.]
- [4. s/he was not the initial aggressor, or, if s/he was the initial aggressor, s/he had withdrawn from the encounter and effectively communicated to the other person his/her intent to do so, and the other person nevertheless continued or threatened the use of unlawful physical force.]
- [5. the physical force involved was not the product of an unauthorized combat by agreement.]
The prosecution has the burden to prove, beyond a reasonable doubt, that the defendant’s conduct was not legally authorized by this defense. In order to meet this burden of proof, the prosecution must disprove, beyond a reasonable doubt, at least one of the above numbered conditions.
After considering all the evidence, if you decide the prosecution has failed to meet this burden of proof, then the prosecution has failed to prove the defendant’s conduct was not legally authorized by this defense, which is an essential element of [insert name(s) of offense(s)]. In that event, you must return a verdict of not guilty of [that] [those] offense[s].
After considering all the evidence, if you decide the prosecution has met this burden of proof, then the prosecution has proved the defendant’s conduct was not legally authorized by this defense. In that event, your verdict[s] concerning the charge[s] of [insert name(s) of offense(s)] must depend upon your determination whether the prosecution has met its burden of proof with respect to the remaining elements of [that] [those] offense[s].
- See 18-1-704(1)–(3), C.R.S. 2019.
- See Instruction F:36 (defining “bodily injury”).
- See People v. Garcia, 28 P.3d 340, 347 (Colo. 2001) (“the no-duty to retreat rule does not apply when a non-aggressor pursues an initial aggressor who has withdrawn because in that situation, the non-aggressor in fact becomes the aggressor”; however, the trial court erred in refusing to give a no-duty to retreat instruction in this case because the victim had not withdrawn, the defendant was not out of danger at the time that she killed him, and the jury could have mistakenly concluded that the defendant had a duty to retreat before using deadly force); Idrogo v. People, 818 P.2d 752, 757 (Colo. 1991) (because the question of whether the defendant did in fact retreat was vigorously disputed, the defendant was entitled to have the jury properly instructed on applicable law of nonretreat; trial court erred by not instructing the jury that an innocent victim of assault need not retreat before using deadly force if the victim believes the use of such force is necessary for self-protection and the belief is based on reasonable grounds).
- If the jury is given an instruction that utilizes the language of section 18-1-704, it is unnecessary to give a separate instruction concerning the concept of “apparent necessity.” See Beckett v. People, 800 P.2d 74, 78 (Colo. 1990) (a separate “apparent necessity” instruction is not necessary where jury instructions adequately informed the jury that it was required to consider the defendant’s reasonable belief in the necessity of defensive action).
- The above instruction does not include multiple assailant language from People v. Jones, 675 P.2d 9, 14 (Colo. 1984). More recently, the supreme court has explained “that Jones does not require a trial court to give a specific multiple assailants instruction in every case involving both multiple assailants and self-defense.” Riley v. People, 266 P.3d 1089, 1094 (Colo. 2011). Instead, Jones stands for the principle that a jury must consider the totality of the circumstances, including the number of persons reasonably appearing to be threatening the defendant, (1) when evaluating the reasonableness of the defendant’s belief that he needed to use self-defense in the given situation, and (2) when evaluating the reasonableness of the actual force used by the defendant to repel the apparent danger. See Jones, 675 P.2d at 14. The purpose of this rule is to ensure that the jury understands that it may consider all relevant evidence when assessing the reasonableness of the defendant’s actions. Thus, so long as the given instructions properly direct the jury to consider the totality of the circumstances during its deliberations on reasonableness, those instructions will satisfy Jones.
Riley, 266 P.3d at 1094 (the instructions given, when read together, accurately described the law of self-defense in the multiple assailants situation, in that they described the law of self-defense and broadly provided that the jury should consider the totality of the circumstances when evaluating the reasonableness of the defendant’s actions); + cf. id. at 1097 (Coats, J., concurring in the judgment) (arguing that the defendant’s tendered instruction was improper because it simply “amplif[ied] the statutory definition of self-defense itself” rather than “explain[ing] the defendant’s theory of the case by relating the circumstances as he perceived them to be to the law of self-defense”).
- Participation in an unauthorized “combat by agreement” is a disqualifying condition that, like initial aggression and provocation, establishes an exception to the affirmative defense of self-defense. Although section 18-1-704(3)(c) requires proof that the agreement was “not specifically authorized by law,” this language does not establish a separate defense. See also Instruction H:04 (defining the affirmative defense of consent, under section 18-1-505(2), where “the conduct and the injury were reasonably foreseeable hazards of joint participation in a lawful athletic contest or competitive sport”). “Colorado case law makes clear that there must be a definite agreement before a court can instruct a jury on the mutual combat limitation on self-defense.” Kaufman v. People, 202 P.3d 542, 561-62 (Colo. 2009) (“Nowhere in the [self-defense] statute does the General Assembly define ‘combat by agreement.’ Rather, the elements of this self-defense exception have been developed through case law.”). Accordingly, in a case where there is an evidentiary basis for including language defining the combat by agreement exception, draft a supplemental instruction specifying the relevant principles of law that the jury should apply to decide whether the combat by agreement was “unauthorized.” See, g., § 12-10-103(15), C.R.S. 2019 (defining “tough person fighting” as including nearly all types of combat by agreement, other than sanctioned boxing and martial arts training that is conducted in specified circumstances); § 12-10- 107.5, C.R.S. 2019 (“tough person fighting” is a class one misdemeanor); § 18-9-106(1)(d), C.R.S. 2019 (making it a class three misdemeanor to engage in public fighting, other than in an amateur or professional contest of athletic skill); § 18-13-104, C.R.S. 2019 (dueling statute, prohibiting (1) agreements to fight in a public place, except in sporting events authorized by law; and (2) agreements to engage in a fight with deadly weapons, whether in a public or private place).
- When submitting an offense that is defined with the alternative mens reas of “knowingly” and “recklessly,” see, g., § 18-3-204(1)(a), C.R.S. 2019 (third degree assault), use separate instructions to define self-defense (1) as an affirmative defense to an elemental instruction that defines the offense with only the mens rea of “knowingly”; and (2) pursuant to section 18-1- 704(4), with respect to a separate elemental instruction that defines the offense with only the mens rea of “recklessly.” See Instruction H:13 (affirmative defense of “use of non-deadly physical force (defense of person—offense with a mens rea of recklessness, extreme indifference, or criminal negligence)).
- In a case where more than one exception is submitted (e.g., initial aggression and provocation), include a conjunction.
- In determining what exception(s) to instruct the jury on, the Committee notes that, to warrant an instruction, the exception must be supported by the evidence. See Castillo v. People, 2018 CO 62, ¶ 4, 421 P.3d 1141, 1142 (concluding that the trial court reversibly erred in instructing the jury on the initial aggressor exception because it was unsupported by the evidence).
- See People v. Tardif, 2017 COA 136, ¶¶ 38, 433 P.3d 60, 68 (holding that, because “none of the elements of conspiracy require the use of physical force,” self-defense is not an affirmative defense to conspiracy).
- See People v. Koper, 2018 COA 137, ¶ 18, __ P.3d __ (holding that, where the evidence showed that the defendant acted in self-defense against a third party, he was entitled to a “transferred intent” self-defense instruction as to the victim because the victim “was a bystander incidentally affected by [the] defendant’s asserted attempt to defend himself against what he perceived as a threat posed by” the third party).
- See People v. Coahran, 2019 COA 6, ¶ 27, 436 P.3d 617, 623 (holding that the defendant was entitled to a self-defense instruction “[b]ecause the charged criminal mischief arose out of her use of force upon the [victim] (albeit indirectly)”)
- In 2018, the Committee added Comment 9.
- In 2019, the Committee added a supplemental citation to Riley in Comment 5, and it also added Comments 10, 11, and 12.
December 1, 2021 Boulder is Different – Handing a Case in Boulder Requires Local Knowledge
I try cases all over Colorado. Every court is a little different, but Boulder is a special case. I opened my practice in Boulder in 2002. It is different. What is common in other places, such as an aggressive style of arguing and gamesmanship, causes difficulty in Boulder. Rebukes from the judges. [DAs seem to get to play by different rules, maybe that is my bias talking.]
It is common to meet Judges, prosecutors and defense attorneys in Boulder who never practiced outside of Boulder County. They have their own way. Violating these unwritten rules causes problems. It does not matter if you do not know them, because many folks assume their way is common around the state.
Does you know the Boulder unwritten rules? We do, and we know how to get our arguments across effectively without offense.
November 24, 2021 - Jury Selection – Is Boulder Different? How To Pick a Jury Without a Jury Consultant, No Bull
Jurors in Boulder have a way too. Some is cultural, some is socio-economic and education based. Of the first 12 jurors placed in the jury box in Boulder, you will have 3 PhD educated scientists, 6 engineers of some type, and maybe 3 people without a college degree. It is uncommon in most jurisdictions to have a majority jury with a college degree. Boulder also has a lot of college students under 25 years of age. Many of these jurors have money and make money. I rarely see a black or brown face on a jury panel in Boulder.
Does your lawyer regularly pick Boulder juries? We do, and we win with them too.
Many believe that Boulder jurors are biased against gun owners, and the use of guns for self-defense and self-defense in general. I agree that many in Boulder county would support significant gun restrictions and some may even have negative view of guns in general. But I have tried and won gun self-defense cases and general self-defense cases here. Most of the county is not in the City of Boulder, with a significant portion in the western mountains, and eastern farming communities and Longmont.
Recently, a potential client called and asked, can you win a sex assault in Boulder? I said yes, and I have often and recently. The potential client said a very famous Colorado lawyer forced him to take a deal because the lawyer did not think anyone could win a Boulder Sexual Assault due to the jury pool. I heard the facts and knew is it was winnable.
Many lawyers rely on demographic speculation, guesses based on how a person appears to them, to choose a juror. This may work in politics where you only need 50.1%, meaning you can be wrong 49.9% of the time. It does not work in jury selection. If anyone has made assumptions about you and you had to deal with that assumption over time, you know how it feels. I like jurors that are honest with me, even if I do not like the answer. I have friends across the spectrum. We find commonality and that keeps us together. I find if you treat a juror like an individual, listen to them, and be fair honest and decent, they will give my client a great trial and verdict.
In learning about this community, I have come to know how to go around the state and meet jurors where they are emotionally and philosophically. They may make assumptions about me (of course), but usually by the end of jury selection, we both know our initial impressions are only a slice of truth of the two of us. If I can accept them, they will accept me. If they accept me, they will accept you and our case.
December 8, 2021 Are you Innocent? Not Just Not Guilty, but Innocent? We Want Your Case.
I used to think the hard cases were ones where the client was innocent. I have heard it from other lawyers a lot. For me, it stems from a fear of losing a case at trial and knowing an innocent person would go to prison. When I was a public defender, this fear was in part because I did not think I had enough time to find the evidence nor the skill to show the truth at trial. Winning where your client was guilty was fun, a thumb in the eye of the prosecutor who made a bad plea offer and the system that was often so unjust. But losing an innocent person’s case was an indictment of me, my failures.
Not anymore. Over my 25+ years of practicing law, and especially since training at www.triallawyerscollege.org (including being an instructor since 2017), I know how to find the evidence and tell the true story of innocence in your case. It’s not just a feeling. I have backed it up with numerous trial acquittals and dismissed cases.
Are you scared to go to trial?
Is your lawyer scared to go to trial?
Is your lawyer trying to get you to take a deal when you are innocent?
We love innocent clients. It is extraordinary to fight these fights. The consequences remain the same. This drives the effort. The system does not see what I see, at first. Judges often treat innocent clients as if they are guilty. Prosecutors are often thoroughly convinced innocent clients are guilty and might get away with it. Police officers and witnesses are the same. For some reason, the more we show innocence, the more they try to show guilt. It seems to be a reaction, likely subconscious, to questioning their opinion and power. It feels like they think their opinion is fact. It’s not.
If a prosecutor is working for an unjust cause or in a system that could get a case this wrong, does cause them to question all their beliefs?
Is it easier to suppress this belief and double down on prosecuting?
Do they want to show their power by winning every case, even one where the person is innocent?
I am not a therapist for the system. I am just here to find the true story of innocence in your case and find the best way to show it so we can get a dismissal or acquittal. If you are innocent. If you are falsely accused. If you are unjustly charged. If you are over-charged. We want your case.
Not Guilty on Fraternity Sexual Assault 2017
When regret gets you thrown out of school and asking why gets you charged with a serious felony with lifetime prison consequences.
About a year after a Thursday night party at a University of Colorado Boulder fraternity house, I get a call from a distraught father looking for help. He had hired a very confident attorney nearly a year prior. This attorney spent the entire first phone call talking about himself and how great he is. In fact, he never stopped talking about how great he is. Later I will show why that attorney needs to focus on his clients more than himself. The father had learned by now that he made the wrong choice initially.
This time, he contacted an attorney friend in Glenwood Springs who sent him to me.
The first meeting included the now 19 year old accused, his father and his father’s best friend. We started with learning from them anything they wanted to tell me (for a portion, speaking with client alone to protect confidentiality). I wanted to know these people and learn about their lives. I needed to understand the family. How they got here.
When they asked, I spoke about my process, the process I learned at the Trial Lawyers’ College at Thunderhead Ranch near Dubois, Wy. I started my career as a Colorado Public Defender in Colorado Springs and Adams, County. They taught me the nuts and bolts of criminal defense and I won many cases using their training. I will always be grateful.
The Trial Lawyers’ College taught me how to love my jury, how to empathize with complaining witnesses (according to Colorado statutes, if you claim an assault, you are a victim), the police and other witnesses. We learn to reverse roles with all the people we meet to better understand who they are and what their motivations might be. Other tools are taught and were used in this case.
I discussed the process and we started working immediately.
The University of Colorado Office of Institutional Equity and Compliance starts to investigate. This is CU’s Title IX office created to comply with the “Dear Colleague Letter.” Responding to schools and police departments failing to properly investigate sexual assault cases, the Obama administration created a process to solve the problem. The process took away almost all rights to due process of the accused. The process lowers the standard of proof to preponderance of the evidence, the scales of justice, 50%-50%. On the accusers side is not just the weight of any evidence found, but also the threat by the government to take away all Federal money, all student loan guarantees, all grants, all aid. The accused, has no power. He cannot even ask a single question to the person calling him a rapist. [New rules allow cross examination in certain circumstances, but not always. CU has ruled that any claim that takes place off campus is does not get cross examination. This is a due process violation that will take some time to get overturned.]
A year earlier, CU OIEC met with the complaining witness, a college freshman from the mid-west coming of age at a school where everyone appears to be very thin, social, popular, drinks alcohol, may use drugs and is sexually promiscuous. She did not report it initially. The University of Colorado Office of Victim Assistance received an anonymous report from a fraternity member. She states that seeing the word victim was the first time she considered that she might be a victim.
In her first meeting with OVA, the CU counselor/therapist/victim advocate told the complaining witness that she was raped. From this point, the complaining witness would push to get my client punished as a rapist, even after a Boulder County jury found him not guilty. Had she never encountered this CU employee, she may never have suffered the consequences of believing she was a victim.
A note about the process of any rape counselor. They do not question or investigate anything about the story told by the person sitting in front of them. The current theory is that you always believe the victim. They assume she is a victim and telling the truth, and no matter what, they will support her as a victim. During meetings, including therapy, they repeatedly tell her she is a victim and that all feelings and contradictions are just signs of being a victim. All changes in story or “fact” are the result of being a victim. A vulnerable 18 year old walks into an office not knowing what to expect, feeling bad about getting drunk and hooking up in a public way, feeling shame of lots of people knowing her worst choice. She is told it is not her fault. That feels much better. She might be pissed about being treated like a anonymous hook up rather than a girlfriend. The rape counselor that sees all things through one lens tells her to stand up for others who cannot and that he will do it again. How many people in this situation could truly stand up and say no, I was not raped. After a few weeks of indoctrination, anyone would start to believe. It gets really hard to admit the truth the farther the case gets.