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 processes, 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 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.
I first saw this case when reading the Daily Camera last Fall. The prosecution was implying that a young man broke into a home with the intention to sexually assault a 5-year-old girl in the middle of the night with her father home. The father was a hero, hearing something on a baby monitor, running downstairs, and forcefully removing the man from the bedroom, and then detaining him by the front door for police to arrest. This is how the case was presented to me by the prosecutor on the case as well. They suggested he may have been planning this and stalking the victim.
It quickly became clear that this was a fantasy of the prosecutor, an ugly one without support that would drive their wrongheaded view of the case through trial and continues to drive it after acquittal. The judge even said, at the final hearing, that this was a chain of events that could have been broken in so many ways preventing the “crime” – unfortunate for all that it was not. Press cases are harder, not because the jury is tainted necessarily, but because the prosecutor is looking for fame and status. But always remember, someone in the prosecution wrote the press release in the form of a barely ethical arrest warrant affidavit.
Unfortunately, the father read this and was told this and believed this as well. It harmed him emotionally and blinded him to the facts.
The simple truth was what is somewhat common in a college town, a very intoxicated young man found an unlocked door and went in, disoriented and confused, he opened a door not knowing what was on the other side and said, “I am with the hotel.” Everyone assumed the worst because the door was a child’s bedroom.
When police arrived, the young man cooperated with them and thanked them for saving him from an attack (by the father). The father told police that after he told the young man to leave, he started towards the door, but turned for no reason and punched the father in the face hard and solid, a fight ensued. The physical evidence showed this to be a lie. The father had no injuries to his face. The child’s statements supported that the father struck first. It makes sense too – a father thinking the worst about the situation sees the perpetrator about to walk out the door to be seen again never or at the worst time, knocks him down to make sure the police can find him.
This night was the young man’s birthday. He was 2 weeks from entering the Marines. He had never been in trouble. He was drinking beer with his older brother and a few friends to celebrate, and not knowing when they could do this again. As everyone was leaving, the young man started acting strange – his brother tried to take care of him, to bring him home to a safe place. The young man said things like “who are you” and “where are you taking me” to his own brother. He fought to get out of the car. He forced his brother to stop the car and then ran away in fear of his brother. He found an open door in an area of town he never frequents.
It turns out that one of the people at the birthday gathering sells drugs and had a reason to drug the young man. He was jealous. He was left alone with the young man’s drink while the group smoked cigarettes outside. He placed a drug like LSD in the young man’s drink. Shortly after watching him drink it, he left. About 45 minutes later, the young man started acting strange.
The police all commented that the young man was on something, even suggesting LSD. They told the father that he would be tested for this drug (possible in the first few hours and specifically at this time). The police never tested him. The prosecution tried to cover this up at trial. The jury saw the truth.
When the young man woke up and came to in jail, he was seen by a nurse. Still groggy and having no memory of the prior night nor knowledge of his current situation or the charges, he told the jail nurse that “I must have been drugged because I do not remember anything after my second beer.”
This young man nearly had his life derailed by a person that place powerful drugs in his drink setting in motion events that landed him in jail. Involuntary intoxication is a complete defense to any crime. Whereas a woman is usually drugged so that a sexual assault can occur, a man is usually drugged to rob him or for a terrible joke or to cause terror. Here, it was to cause terror. This was not a funny joke.
Given what happened, the drug dealer would never admit it. He is a dealer that lives outside of society and the law. His ex-girlfriend was too scared of his violence to testify or even give a full statement. She told some people one thing but said differently when my investigator went to her. The drug dealer did get arrested again. He is currently being prosecuted for felony assault on a different woman in a case that reads somewhat like an effort to get someone to pay using force. Maybe it was harming someone for talking when they should not. I have a police report.
No matter what evidence we brought the prosecution, they could not see this as a random event, outside of the control of my involuntarily drugged client. The prosecutor was simply trying to learn my case for trial, not acting in good faith. I have seen this numerous times in my over 20 years of trying cases. I gave them enough to make decisions, promising more if they agreed with my offer. I held back some, knowing their ruse, saving it for a surprise at trial.
Even after a jury of 12 found in favor of the defense, approving of the story that he had been drugged, the prosecution fights. They object to the sealing of the case. They say the evidence was overwhelming, suggesting the jury got it wrong. All 12 agreed to the verdict. One juror said they were all in the agreement of not guilty within 5 minutes – one or two wanted to review the case deeply and may have been closer to guilty than the rest. But, we had ten out of 12 as soon as they walked into the jury room. The prosecution even suggested the young man will have “future victims.” They never recognized that my client could be a victim of the person that drugged him. The prosecution was told of the drugging prior to trial. We made a very reasonable offer. The prosecutor fought this case as hard as they could, believing no jury would find him not guilty. They were stunned by the verdict.
My client, the young man, is free. He is working and living with his brother. He is preparing again to enter the Marines. He will not let a prosecutor’s myopic view of the world stop his life. I am proud that I could help him. I believe in the jury system. I know it the only place to get justice.
Voting and jury service is your most powerful way to tell your government how you feel. Do not let anyone tell you it is a waste of time.
This week, hard work and persistence paid off. The Boulder District Attorney filed to dismiss the felony sexual assault case against my client and the Court signed the order. Dismissals on sex cases are rare. It helps if you are righteously confident in your ability to try your case to a jury. I am.
My guy was vilified in the press when the charges were filed. The information released by the prosecution was woefully incomplete and suggested that he fled the country because he was guilty. The truth is much different. He returned home only after his prior attorney relayed word that no charges would be filed. He did not run. He always planned to return to the US and did so, getting arrested as he entered the country.
Despite the arrest warrant affidavit suggesting that the complainant immediately left the dorm and sought help, the truth was that she and her friend chose to stay with my guy and his friends. The friend reported to police she immediately learned of the assault, and yet they chose to stay. Both reported they just wanted to get into the sober friend’s car and drive to a safe place, they chose to stay. Videos show that they roamed the dorm freely, they did not leave. Videos show they walked into the parking area within feet of their car. They chose to stay, smoke marijuana and drink alcohol with a large group of students, including my guy. They chose to continue to spending time with my guy and his friends, even attempting to find and return to the boys’ room later that night after separation. At the end of the night, the complainant and her friend rode up and down an elevator, at the dorm, alone, for a significant amount of time, laughing and using social media, rather than leaving. When police asked why, they reported they could not find the ground floor to leave.
While these facts do not completely reveal what happened, they do beg the question of why did they lie, why did they act this way, why do they continue to lie to the police? One answer is that there was no crime.
There is more to this case. A future post may address that.
The complainant will not face charges nor even be identified. She suffers no consequences. Many people will believe she is a victim and he is a perpetrator. There is no database of false accusers. If she falsely accuses someone in the future, there will be no way to learn of this case and use it to assess her credibility. If you want to avoid someone like this, you cannot run a background check and learn what she did. This is true of all cases like this, even the ones that do not get filed.
Compare that to my guy. It will take several weeks to seal this case from public view. The defense must file a motion, pay fees and wait. In the meantime, his official record will suggest he is a rapist, preventing him from getting jobs or renting apartments or living a normal life. A background check is cheap. After sealing, the case will remain in the police and DA files indefinitely. If granted, sealing will not affect any news articles or other internet content. Therefore, this false claim will be findable on the internet forever. We only hope that those that find the initial article, will also find the one showing it was dismissed. Even so, some will think he got away with it. This is in part due to the recent publicity of a statistic that only 2-8% of sexual assault allegations are false. That just is not true.
To say only 8% of sexual assault claims are false suggests 92% are true. The study does not support that. If you review the literature of False Allegations of Sexual Assault, the type that victim advocates, prosecutors, detectives, prosecution experts and title IX investigators are trained on, this case would not be called a false allegation. (See https://www.nsvrc.org/sites/default/files/Publications_NSVRC_Overview_False-Reporting.pdf and https://atixa.org/wordpress/wp-content/uploads/2012/01/Lisak-False-Allegations-16-VAW-1318-2010.pdf). The misleading statistic is based on a contrived definition of false allegation. In the studies, a false allegation must be proven false by police investigation. Of the 136 cases reviewed, almost 45% percent did not proceed and could not be determined whether they were false or not. Another 14% did not have sufficient information for a determination. Only 35% proceeded, and some of those were probably false, just not proven. The study’s authors suggest only 2-8% of sexual assault claims are false where of the remaining 92%, only a third were likely true reports of sexual assault. If you have to rig the statistics to make your point, you are probably wrong. Lies, damn lies and statistics. If you do not like the results, change the definitions.
As with prior exonerations where the case was reported in the press, I requested a follow up article (with my client’s approval). I respect the need for a free press and the public’s right to get this information. Certain facts help to sell papers – fear is a powerful motivator. At the same time, I see the damage that this can do to an innocent person. I give great credit to Mitchell Byars and the Daily Camera for telling the rest of the story.
I started learning to surf a year ago. I plan to schedule a trip after each significant trial. This trip was set after a trial, but it was continued to September. My goals were to have a quicker, smoother pop and to immediately turn onto the wave, riding the face down the line.
While traveling, I read Allan Weisbecker’s In Search of Captain Zero: A Surfer’s Road Trip Beyond the End of the Road and started William Finnegan’s Barbarian Days: A Surfing Life. These are both wonderful books for the surfer. I am looking for more. Weisbecker’s descriptions of his dog made me miss the pup I left at Pet Camp in Golden. How can I bring my pup?
When I arrived, I felt strong, albeit a little fat, from a few weeks of swimming laps and dirt biking. The first week, I enjoyed just being in the water and trying to get my timing. I felt great with no pain, but no improvement either, riding directly down the face and stalling before the wave caught me again. The second week, I took lessons at Witches Rock Surf Camp – my second visit. In the first lesson, I was so frustrated that I overcooked my arms. I woke with elbow tendonitis and shoulder pain. I did my best, remembering a famous football coach who told a player, you aren’t injured, that is just pain. Advil helped some.
If I could not ride as much as I wanted, I could still learn how to read the waves better, deciphering close outs, lefts and rights, and where it will break first. I watched others and tried to emulate them. Pain made me slow and weak and tentative. Baby steps. As each day passed, I got better, even if it was hard to see. On the Wednesday, I finally started quickly popping up and turning immediately, even if it was unbalanced and sometimes the wrong way. Confidence grew.
The following day, I worked on what I had started to feel. Feel is what they all say – you have to feel it. The words are just markers for the feel. You search the words for how, but until you feel, you do not know. I caught many waves early on, with a smooth turn away from the break. On one wave, I turned the wrong way, into the break, and immediately changed direction to the face. Confidence, excitement, progress. I got so confident that I stopped thinking and forgot to turn, regressing. Taking stock, I focused on my turn again. The rest of the day I did it right.
The last day. I woke ready to go. The teens from San Diego seemed sleepy on the bus. One of the group did not show at all. I paddled out with my tendonitis dulled by ibuprofen. Lots of waves, turning to the face, slight cut backs and then into it again. This is long boarding. I was not trying to ride the nose, just turning. I am sure I missed some, but I do not remember those. After a short water break, I went back out. The older SD teen, crushing a short board with cut backs, riding the crest and cool drops, had just rode a nice one. I took the next, catching it perfect, smooth, balanced. It was a left, about shoulder high. My best yet. As I move on the face, a little up and a little down, I see the teen ahead. He is paddling out. I am headed right for him. His face is excited, no fear. As much fun as I am having, I do not want to run him over. So, I do what feels natural. A hard cut to the left, rear foot planted, toe side rail deep into the wave, avoiding the kid, I go perpendicular to the wave, right over the top.
A good surfer would have turned right immediately after the cut, missing the teen, and continued down the line. I am not a good surfer. I hope the next time I do that. That cut was my best ever. It was hard and clean. I care not that the ride was over. Next time. It was fun. As my head bobbed above water, SD teen complimented my ride – his first real words to me in a week. Acceptance.
In the next 30 minutes, my group headed in, getting ready for the bus ride back. I did not. It was my last day and I did not know when I would get to go again. Despite being older than anyone by decades, I was the last out of the water. I do not remember any other good waves. My arms were screaming. I just did not want to get out of the leave.
A few years ago, I was appointed to represent a man that lives in the Western, Mountainous, and Remote area of Boulder County on a charge of Felony Menacing. The prosecution says that my client threatened a temporary census worker with a gun.
My client was standing on his porch when the person passed 4 no trespassing and private property signs to get to his home. He was asked to leave politely. The person did not identify as a census worker. The person appeared to be casing the vacant homes on the property. And, the gun was specifically pointed in the opposite direction of the trespasser. My client’s home has marks on the outside where bears have tried to break in. He keeps a gun close by when he is outside due to the bear activity. He also knows that it takes a minimum of 20 minutes for police to arrive at his home. If he is facing an attack, he must defend himself. He never said the trespasser was attacking, but he was concerned that the person was on the property, refusing to leave and rude. My client simply watched and kept the gun nearby for protection.
This case went to trial. The prosecutor would not dismiss when it is a clear case of self-defense and defense of property to stand on your own porch, holding gun and asking someone to leave your property. I suspect the prosecutor was hoping a Boulder jury would not like that my client owned and possessed a gun, an AK-47 style rifle at that. I suspect they were hoping the jury would be so scared that they would convict, despite the law. The jury did their job correctly and acquitted.
With the affirmative defense of self-defense, the prosecution must disprove that my client was acting in self-defense beyond a reasonable doubt. They raised their voices and called my client’s lawfully possessed guns an “arsenal.” Only one gun was ever seen by the complaining witness, so why did the judge allow the rest of the guns into evidence? Two of the 5 guns were old and not operational. The client kept them because they were passed down by his grandfather. They tried to use emotion to get the jury to hate my client and convict him when he was simply standing on his own porch asking someone to leave his property while in possession of a gun. That is not a crime, not even close.
In Colorado, the state constitution provides:
Article II, § 13 of the Colorado Constitution provides that “[t]he right of no person to keep and bear arms in defense of his home, person and property, or in aid of the civil power when thereto legally summoned, shall be called in question, but nothing herein contained shall be construed to justify the practice of carrying concealed weapons.”
Despite this clear language that is directly related to the defense of this case, the prosecution objected to me putting this amendment into evidence, as a jury instruction nor even arguing it in closing. The judge, insensibly, agreed with the prosecution, stating that it was not relevant. It is hard for me to understand what could be more relevant than the founding document of our state supporting my client defending himself and his property. Fortunately, jurors can see when a trial does not seem fair.
A few months later, I was at a party and a man approached me. He was the foreperson of this jury. He told me that when he got home after the first day, being selected as a jury member and hearing opening only, he got very ill. He likely had food poisoning. His wife tried to convince him to call in sick and get off the jury. This gentleman responded, “if do not go back and I find out that man was convicted, I will not be able to live with myself.”
Neither the foreperson nor most of the rest of the jury was gun people. They were not members of the rocky mountain gun owners (RMGO) nor the national rifle association (NRA). They were not comfortable with firearms. But, they were willing to follow the law on self-defense and defense of property. They were not going to punish my client for exercising a right that they themselves did not choose to exercise. Just like any trial, choosing the jury is very important.
A few years ago, I was appointed by the court to represent a woman accused of possession with intent to sell drugs and distribution of drugs in Longmont. My client had lots of contacts with the criminal justice system. The Longmont Drug Taskforce was watching her and a few people she lived with. They wanted to get her bad. She had previously beat a drug charge at trial in Weld county. We suspect someone in the house was working with the Longmont Drug Taskforce because someone left the house at about 530AM and SWAT busted in about 6 AM.
Yes, SWAT. There were about 30 police, a fire truck, hazmat, etc. The house looked like the house in ET The Extraterrestrial after the government came in. They spent many hours and 1000s of dollars on this raid.
In the end, they found a little marijuana, some baggies, a small ledger, and one bindle of methamphetamine. All that time/money and they get one tiny, single-serving size, a bag of meth. Egg on the face, embarrassed, the Longmont Task Force felt stupid. They did everything they could to charge her with as much as possible to justify this expensive, embarrassing raid. Some of what they did was a lie.
My biggest problem in the case was that the bindle of meth was found in my client’s underwear drawer, on top of her checkbook. This is what is known as a bad fact. At trial, I wanted to make sure the jury understood that proximity does not equal possession. Possession must be knowing and must be proven beyond a reasonable doubt. To possess drugs, or anything else, you must know you have it. Prior to jury selection, I placed a bindle of fake drugs between the cushion and armrest of a juror’s chair. No one knew it was there but me. When discussing this issue, I asked the juror if he possessed meth. He said no. I asked him to look in his chair. When he did, he pulled out the bindle and showed it to the room. It was a clear example of the knowledge requirement of possession. This gave the jury the lens with which to see the case, but we need much more.
During the testimony, several Longmont Police and Drug Task Force members testified. These are seasoned detectives tasked to root out meth and meth dealers. I was able to show that their reports showed the unused baggies were different colors in different reports and were found in different rooms. We showed how their evidence collection system did not mesh with the police reports. There were other issues as well. One of the detectives was very honest and hurt the police case. We showed sloppiness, if not outright lies. The basic argument is that with a sloppy (or worse) investigation like this, can we be sure the bindle of meth was actually found in the client’s underwear drawer on top of her checkbook? Is it possible the likely snitch put it there for the police to find? Were the police so embarrassed at finding nothing that they cooked up the evidence a little?
The jury found my client not guilty. Afterward, they asked to speak with me. After thanking them, I listened. The jury all believed my client was a drug user and dealer. They made me promise to try to get her to get help. (I tried, but I do not know how much she did.) They told me that they found her not guilty because the police failed to do their job correctly and therefore they did not trust the investigation beyond a reasonable doubt. The jury fully believed my client guilty, just not enough to convict.
I hope that police and prosecutors learn from these cases. If they do their job correctly, they get convictions, as they should. If they do not, the community is not being served. If not, we waste money on police and trials.
I am proud of this jury for coming to this result. It is not easy for a juror to tell the police and prosecution to do better, especially when they believe a person guilty. I am proud because if my client were found guilty, the only lesson the police learn is that they can get away with sloppy work. There are many reasons for the jury system and for the prosecution burden of proof beyond a reasonable doubt. The most important is to protect the innocent. Another important reason is for the community to tell the government whether they are doing their job correctly. If you do not trust the investigation as neutral, unbiased, and complete, a not guilty verdict is appropriate. If you do not trust the investigation due to sloppiness or possible lying, then the only appropriate verdict is not guilty. If the prosecution does not foreclose all reasonable possibility that my client is innocent, then the verdict is not guilty. It is our job, mine to show it to the jurors, and theirs to act, to correct bad investigation. Anything less is sanctioning poor police work. Poor police work results in innocent people convicted and imprisoned.