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.
Self-defense is a very common defense in domestic violence and charges of assault, menacing, harassment, homicide, or murder. Self-defense is often misunderstood. The statutes can be found at Colorado Revised Statutes §18-1-704 “Use of Force in defense of a person,” and §18-1-704.5 “Use of Deadly Force against an intruder,” also known as “Make My Day.” There are other affirmative defenses for these charges found at §18-1-703 “Use of Physical Force – Special Relationships” that include using force to maintain the discipline of a minor (child) or incompetent person, common carrier, suicide, physician. Force can be used to defend premises or property from intrusion, destruction or theft, or even in citizens’ arrest.
Self-defense and all force defenses tend to require a reasonable belief of imminent force or other provoking circumstances. This belief is subjective, meaning reasonableness is to be determined by someone in your circumstances, not objectively. So, if you are awakened in the middle of the night, at your home, and you are intoxicated, the jury must view your fear of harm from that perspective.
The response to the imminent force must be reasonable to end the threat of force. This means that a fear that someone will shoot a spit wad from a straw at ten feet does not justify shooting them with a gun. A slap across the face would probably be justified. If the spit wad was shot and the person was holding an actual gun and in some way threatening with it, then the amount of force to respond to the reasonable threat of being shot is much greater.
Another way to look at it is that if you are in a bar fight and you are now winning, you have to look at stopping. You cannot continue to pummel a helpless person. If you do pause, and the assailant rallies, trying to punch you, it justifies further force. Multiple assailants justify greater force.
The initial aggressor is a very important aspect of self-defense. If you start the fight, you will have trouble prevailing on self-defense. If the other person threatens and uses words to start the fight, but you punch first, you are likely OK. If on the other hand, you create the situation and take it from strangers or friends towards a fight, you are the initial aggressor and cannot claim self-defense unless, you retreat and withdraw, and the other person will not stop. This is tricky to prove. You should be on camera moving away, with your hands up, saying I do not want to fight, let's end this, I am done, and likely the person is following you, continuing to strike and threaten and refusing to stop. The more evidence of that, the better case for you.
In Colorado, you are not required to retreat to the wall or even retreat at all, we are essentially a stand your ground state. But, a jury determines the reasonableness of your actions and some jurors will not like that you quickly use force. As a human, I advise against using force unless you have to. As a criminal defense attorney, I know the law allows it and I feel strongly in protecting your statutory rights to live a life free of threats and violence. The better case has evidence that you acted reasonably, as well as within your rights.
Colorado’s Make My Day law allows deadly force when an intruder is in your home and you reasonably believe they will harm you or someone in your home. It also allows deadly force where you reasonably believe the intruder has committed a crime, is committing a crime, or is about to commit a crime, in addition to the unlawful entry. If the person enters the home lawfully and refuses to leave, it is unlikely that this statute applies. If the person is leaving, it is unlikely that the statute applies. This cannot be an automatic response, it must be a human making the decision, so any trap gun is not allowed. Make My Day is an immunity statute, meaning that it is argued to a judge and if the court finds the statute is met, then the charges are dismissed without a trial. If the judge does not find the statute has been met, then it can be argued to a jury, much like self-defense. This is greater protection than normal self-defense in that the jury does not have to believe it is reasonable that you believed “a lesser degree of force is inadequate” and reasonable belief a person may be killed or seriously injured OR occupant of dwelling or business during a burglary, OR reasonably belief of kidnapping – sexual assault – robbery – or assault.
No matter the type of defense, there is nothing you can tell the police today that you cannot say tomorrow with an attorney – just say, “I want a lawyer” and nothing else. This is especially true if someone is seriously injured or dead. No lawyer wants you to explain to the police why you should get self-defense or any other defense. If the police cannot see it by the time they talk to you, then they likely will not see it after they talk to you. Meaning, they are looking at you as a defendant, not a victim. Be quiet, and know your lawyer will help you tell your story. The prosecution cannot use your silence against you at trial unless you start talking and then stop. No matter when you realize you should not be talking to the police, just say, “I want a lawyer.”
As a criminal defense attorney in Colorado, I have investigated and argued self-defense, defense of property, defense of premises, and make my day for over 20 years. I know how to help you tell the true story of your innocence. I know how to find support for it. I know if and how to present it to a prosecutor for a deal or dismissal. And, I have won on these defenses numerous times. I have won gun cases in Boulder county, even though many of the jurors do not own guns and do not like guns. It is best to never need these defenses, but then, it is better to be judged by 12 than carried by 6.
In Colorado, there is a statute that says if a police officer has probable cause of domestic violence (DV) offense, then s/he must arrest the person and bring them to jail. CRS 18-6-803.6(1); see also 16-3-105(1.5) and 18-6-800.3(1). This law has been interpreted to mean that if the police are called in on a domestic violence complaint, then someone has to go to jail. Usually, this is the person who did not call the police (race to the 911 call), the person least injured or the man.
Another reading is that if the evidence is equivocal, then there is not probable cause and no one should go to jail. Police can separate the parties and provide contact information if further contact ensues. A report can be made to the prosecutor and they can decide whether to move forward with charges.
The statute allows provide police with factors to determine who should be arrested when the evidence is not clear: 1) prior complaints of DV, 2) relative severity of injuries, 3) likelihood of future injuries to each person, 4) the possibility that one of the people acted in self-defense. CRS 18-6-803.6(2).
Domestic violence charges have many collateral consequences, like loss of gun privileges, difficulty leasing an apartment, difficulty getting a job, and public shaming. These cases can result in deportation for non-citizens.
Domestic violence is defined in the Colorado Revised Statutes (18-6-800.3(1))as:
- “an act or threatened act of violence upon a person with whom the actor is or has been in an intimate relationship.”
- The intimate relationship includes a spouse, former spouse, past or present unmarried couples, or persons who are both the parents of the same child regardless of whether the persons have been married or have lived together at any time. CRS 18-6-800.3(2)
- this has been interpreted to mean any two people that have been intimate with each other, certainly any sexual relationship, but also any relationship that involved any level of sexual relations, including kissing.
- In People v. Disher, 224 P.3d 254 (Colo. 2010), the Court found there were 3 factors to determine intimate relationship: 1) length of the relationship, 2) nature of the relationship, 3) frequency of interaction of the parties. This means that a one night stand, followed weeks or months later, by a crime that otherwise fits, is not a domestic violence crime.
- “domestic violence includes any other crime against a person or against property, including an animal, or any municipal ordinance violation against a person, or against property, including an animal”
- The property portion of this means the theft or destruction of any property, even your own. Many years ago, an Avalanche goalie won his DV charges because he busted a door in the family home, but did not hurt anyone. The statute was changed shortly after.
- Harming a person’s pet or the family pet can be domestic violence.
- Breaking a phone will be charged both as DV criminal mischief and/ or DV Disruption of Telephone, basically preventing a person from calling 911.
- “when used as a method of coercion, control, punishment, intimidation, or revenge directed against a person with whom the actor is or has been involved in an intimate relationship.”
- This section is very important to establish Domestic Violence and is often overlooked.
- There are cases where at first look, it appears to fit in the domestic violence statute, but the proof does not establish the act was done for coercion, control, punishment, or revenge, but instead for a different reason.
- It is arguable that the language of this section establishes a specific intent element for coercion, control, punishment, or revenge. It does not appear this has been litigated. Voluntary intoxication is a defense to specific intent crimes.
As with any crime, there are defenses to domestic violence acts or threats. Self-defense, defense of others, defense of property, and provocation can be affirmative defenses to the charges. This means that if there is any evidence to support the defense and proper notice is given, then the prosecution must disprove the defense beyond a reasonable doubt.
I have represented numerous, if not thousands of people on domestic violence charges in Boulder, Broomfield, Longmont, Adams County, Jefferson County, Denver, Larimer County, Colorado Springs, Gilpin County, Eagle County, and throughout Colorado. I will work with you to learn what happened, find any defenses, investigate to determine the truth and the value of the prosecution case, and present the case at trial the best way possible. I have worked out many valuable plea bargains, argued for and won dismissals, and tried cases to juries with excellent results.
It does not matter if you were arrested because the police thought someone had to go to jail. We will find the best way through the mess. Beware of the deferred sentence deal on your first DV case, it is often the worst thing you can do, especially when you are innocent.
No matter the facts, I recommend that you say nothing to the police without a lawyer. Just say, “I want a lawyer.” Remember, there is nothing you can say to the police today, that you cannot tell them tomorrow with a lawyer.
College Students Accused of Sexual Assault Entitled to Due Process in Disciplinary Proceedings, Says Sixth Circuit
False allegations of sexual assault are life-changing for the accused. They face felony criminal charges, the potential for years of their life in prison, loss of employment, loss of friends, ridicule in the community – and that is often based on the allegation alone.
University students falsely accused of sexual assault often face another layer of difficulty. When a report of sexual assault is made on campus, the accused is often investigated both by the police and by the university; specifically, the university’s Title IX office. Even if criminal charges are never brought, the accused student is subject to disciplinary proceedings through the university, and navigating that process can be incredibly difficult.
University disciplinary proceedings don’t have the same protections as a criminal jury trial. Students often are not allowed to have an attorney represent them at the hearing. They are not allowed to confront their accuser, to engage in cross-examination, or present testimony from their own witnesses. Any statements made at the disciplinary proceedings can be used against the student in a criminal trial. The standard of proof is frequently a preponderance of the evidence standard, meaning that the disciplinary committee deciding the student’s case has to find only that it is more likely than not that the student violated the university’s code of conduct. Compared to the standard of proof at a criminal trial, beyond a reasonable doubt, the accused faces an uphill battle.
The Sixth Circuit Court of Appeals recently held, however, that students facing suspension or expulsion from a university based on sex assault allegations which required the university to make a credibility determination (he said/she said case) are entitled to additional due process in confronting their accuser through cross-examination. John Doe v University of Cincinnati (UC), et al. provides for a version of cross-examination of the accuser in cases where the accused is denying the conduct described by the accuser.
Confrontation of one’s accuser is an important trial right. However, in university disciplinary proceedings, the ability to confront one’s accuser is often non-existent. In Doe v UC, the university provided for some cross-examination of the accuser through written questions submitted to the disciplinary committee ahead of the accuser’s testimony, per their policy. However, UC’s policy did not require the accuser to attend the disciplinary hearing. Therefore, if the accuser chose not to show up at the disciplinary hearing, any mechanism for questioning the accuser was lost.
That’s precisely what happened to John Doe. His accuser failed to appear at the hearing, and the disciplinary committee relied upon the accuser’s statements to university investigators to make a determination that John Doe was responsible for a sexual assault that he denied committing. Even though the disciplinary committee was not able to hear directly from the accuser, and despite being unable to present the accuser with the proposed written questions from the accused, the university made the decision to find John Doe responsible, and suspended John Doe for two years.
Situations like that in Doe v UC happen far too frequently. Students are falsely accused of sexual assault, and there are severe consequences. Even when students win their separate criminal cases, the consequences imposed by the university disciplinary committee often change the course of these students’ lives. The students have to put their schooling on hold. They can’t transfer to another school because of the disciplinary history. They struggle to find employment, because they have to explain why they haven’t finished school. Even when they are able to return to school after a suspension, it leaves them with a hole in their resume that they forever have to try to explain to employers. They often are not permitted to live on campus, increasing the expense of continuing to attend school. A student’s future that may have once held a promising career often turns into a struggle to simply maintain any employment at all.
The Sixth Circuit, in Doe v UC, held that John Doe, when he was denied any opportunity to cross-examine his accuser in the disciplinary proceedings, did not receive sufficient due process such that the university could be justified in issuing a suspension.
While the court found that cross-examination of the accuser is not always required in university disciplinary hearings, due process requires that some form of cross-examination and confrontation of the accuser must be permitted in a case where credibility of the accuser and the accused is a key issue in the hearing. Further, the more serious the possible discipline, the more due process is required.
So, what does this mean for those currently facing sexual assault allegations in a university setting?
First, if a student is accused of sexual assault at a college or university, he or she needs to hire a lawyer. One, anything said to university investigators or to the disciplinary committee can be used to bring criminal charges against the student, in addition to the disciplinary proceedings. The disciplinary proceedings need to be carefully navigated by the student to try to prevent discipline from the school, while still protecting themselves from criminal prosecution. Also, the accused student will need assistance in ensuring that the university provides them with the maximum due process available. While the university rules may not permit a lawyer to represent an accused student at a disciplinary proceeding, the lawyer can still guide the student through the process, and help the student formulate cross-examination questions that can be submitted to the accuser. If the student is disciplined by the university, his or her attorney can seek relief in federal court when the university has failed to provide the accused student with sufficient due process.
While students accused of sexual assault face a very difficult battle, the courts are beginning to recognize that the schools cannot take away a young person’s education without providing them with a genuine opportunity to defend themselves.
Keeley Blanchard, Michigan Trial Lawyer and TLC Faculty member, and Jason Savela, Colorado Trial Lawyer, on TLC’s Winning Methods that helped win Freedom For Their Client!
|You two just had an amazing win! Jason, can you tell me about the case?
Sure. Back in January of 2015, there was a party at a fraternity house in Boulder where a young woman met our client. The two flirted and ended up kissing fairly aggressively in a crowd of people before going to a more private location, a closet, in the house. The young woman said later that what happened then was against her consent. Our client argued that it was an extension of what had been happening in the hallway, only more private, and that it was completely consensual. At the end of that event, he left and she walked out into a room full of people she didn’t know, she felt used and angry, and she was drunk. A little while later she was crying and upset and told her friends she was not happy about what happened. So that is basically what happened that night but eventually, the college got involved in the case. Their Office of Victim Advocacy contacted her and, as she said, it was the first time she had ever connected herself with the word “victim.” So the first time she ever thought she might be a victim was after talking with the Office of Victim Advocacy and they told her she had been sexually assaulted.
The college investigated but did not report it to the police for nearly a year. They threw our client out of school, he lost his friends, he was thrown out of his fraternity. He was living at home, working in a restaurant and he was very depressed. So he basically sent her a note saying, “Why did you lie and cause so much trouble in my life? I don’t understand.” This made her angry and she went to the police, which is when we got involved. It wasn’t until he contacted us that anyone challenged her story.
The prosecutor wanted him to have a felony sex crime on his record for the rest of his life, with a lengthy period of probation, and we were not interested in that so we started investigating the case more thoroughly to see what we could do to prepare for trial. One of the major things we did was build a replica of the closet where this happened.
|In order to help the jury understand that certain things the young woman said could not have happened, we had the closet built to scale and brought into the courtroom. It was an important piece of evidence because it showed that it was a small space, a pantry in the fraternity house kitchen. The door to the closet opened into the closet so getting in and out was difficult. According to the complainant, she was able to get out because our client had moved to a certain spot in the closet and then she was able to “escape.” But with the closet, we were able to show that was essentially impossible, that she could not get out of that closet unless he allowed her to. He physically had to move so if he didn’t want her to get out, she wasn’t getting out. That was a big piece of deciding consent.
Keeley, tell me about how you thought to build a closet and why you believed it would help win your case.
Well, what made the closet important is that we were able to convince the judge to let us get our client up off the stand and use TLC techniques to show the jury what happened, rather than simply telling them. And because we had this giant closet admitted as an exhibit, everybody was interested, including the judge, in seeing in what we were going to do with it. So it allowed us a little more freedom inside the courtroom to utilize the Trial Lawyer’s College techniques that sometimes we get push-back from judges on. One other important factor is that I did the direct examination and I think it was important for the jury to see a woman inside this closet with our client. I think we projected an image of someone very different than what the complainant described in her testimony. The jury was able to see what type of person he was, that he wasn’t aggressive and that he was really a sweet, gentle kid. I think being able to give that visual to the jury was very important.
Jason, was bringing new and interesting ways to tell the story part of what you and Keeley thought about when you were building your case?
Well, certainly we wanted the jury to be interested and to that point, we were already seeing some issues with attention based on the length of the trial. So when the jury walked in the next morning and saw the closet, their heads kind of popped back in surprise. It definitely got their attention. But we always want the jury to visualize things. We always want them to look at things in ways that help them to see the story the way that we would like them to see it. I think the closet helped us to show what our client had said all along, and literally what he said within a month of this event to the university investigators.
We just wanted to show, using whatever evidence we could find, that this was a consensual hookup with somebody who was upset with how she was treated afterwards. That was our story from the very beginning. Our story was told in opening and it was told through our client’s testimony. Those TLC methods we used got us the Not Guilty verdict for our client.
So Keeley, how did you convince the jury?
I think the biggest thing that we take away from using Trial Lawyer’s College methods is that you have to stay with your story. We very much believed our client’s version of the story was the truth and we had to always be telling his story, and not trying to answer the prosecutor. There were times during the trial that the prosecutor would try to bait us into making arguments. He had the complainant testify about the effects of the top she was wearing and the cleavage that was showing and to try to get us into a “well, she was asking for it because of how she was dressed” kind of argument. This, of course, was ludicrous but the prosecutor wanted us to be answering that story, rather than talking about the true story, that this was a consensual act and that she got upset later. So we tried very hard to continue to do that through all the evidence. We held firm on sticking with our story and not answering the prosecutor’s case. Because once you’re talking about their story, I think it’s a lot easier for the jury to go their way.
It was also important that we left room for the jury to have empathy for the complainant. I think the way the case was handled through the university encouraged her to exaggerate some things and I think she had a difficult time going through this process. The university investigator sort of pushed her into a story where she considered herself a victim, rather than the true story of what actually happened. And by working together on the methods and skills we had each learned at the Trial Lawyer’s College, we were able to collaborate and figure out how to tell this story to the jury in a way they could hear it and could understand.
What is your final takeaway about TLC and how it helped you win this case, Keeley?
I would say that whether it’s about winning a case or improving your skills, it’s not something that’s fixed in 3 weeks at the Trial Lawyer’s College or in a week in a Grad program. It’s a constant work in progress and it’s the reason Jason and I keep returning to TLC and why we continue to seek out people and local groups to work with on these methods. That’s why we continue to call each other and work with other people who understand this process. The hope is that I continue to get better, and better, and better. But it’s not a process that ever ends.
And Jason, your final thoughts?
I concur with all of that. The other thing I would say is that when I’m having trouble being in my TLC self when I’m having trouble working on a case because my brain isn’t doing what I think it should, I get a podcast or email from TLC and I listen to it or read it and it might not be on the subject that I’m working on but by the end of it, I took a mental trip to the Ranch for a few minutes and it makes a big difference.
|About Keeley Blanchard:
Keeley D. Blanchard is a highly-rated Michigan criminal defense attorney who has been practicing with Blanchard Law since 2005. Keeley prides herself on providing the best representation to each and every one of her clients, focusing primarily on defending serious felonies including criminal sexual conduct, child pornography, child abuse, and assaultive crimes. She is an active member of the Criminal Defense Attorneys of Michigan, including being a former member of the Board of Directors and a featured speaker at their annual training event and an instructor in their Evidence Boot Camp program. She is also a three-time graduate of the CDAM Trial College. Keeley is a graduate of the prestigious Trial Lawyer’s College and in 2016, joined its faculty team. She has also been recognized for her excellent work in the area of criminal defense, being named in Super Lawyers® Rising Stars in the area of criminal defense in 2011, 2012, 2014, 2015 and 2016.