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 make 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 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 of 6 years on each count.  Motions were 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 for guessing. 

So, if the judge will not follow the law and reduce it 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 report always sounds 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 cop should know they cannot say in trial after 6 months on the job.  Mistrial required.  Mistrial ordered.  A new trial date is 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 win some counts, and 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 clients 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 sentenced 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 the 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 the 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 STDs.  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 council to send it to the Title IX office.  The frat did.  Equal Opportunity and Title IX at the 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 rumors 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.  The 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.  Do you think I am wrong?  Learn more about trauma-informed theory.  Once you spend time with it, let's 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, the 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

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.

http://www.dailycamera.com/news/boulder/ci_32043637/sexual-assault-case-against-former-cu-boulder-exchange

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 the 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, hold a gun, and ask 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 in 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.