Today, the Boulder DA dismissed all charges, including 2 felony charges against my client. The DA never made a reasonable offer. It was basically to plea to the high charge with no sentencing concessions. We presented a good motion to suppress an issue that the judge denied, but left open good appeal issues. We investigated and prepared for trial. A week prior, the DA made a somewhat better offer, but not good enough. We asked for a misdemeanor that they denied. I learned the DA had witness problems that they were not disclosing. After fully informing my client, he decided to roll the dice with my approval. The DA dismissed because she knew she could not proceed. My client is free and clear. It is possible that the case can come back later as the statute of limitations has not ended. My client knows this. We will be ready if they try.
You can access my YouTube channel here:
My first video discusses the difference between a plea lawyer and a trial lawyer, as well as discussing how to protect yourself by not speaking to police without a lawyer:
The police came to my client's home after a 911 call where the wife needed help because her husband was acting strange and may need medical help.
My client drank some alcohol and took medication. This combination caused him to have a bad reaction. He could barely walk or talk and was loud and disruptive. His wife wanted an ambulance to come to check him out and see if he needed to get medical treatment. She could not get him into a car, worried she could not control him once he was in the car. She had kids at home that needed supervision. She needed medical help.
The police came and assumed domestic violence. They saw that my client had cut his head and blood was all over his face. They saw that his wife had a slightly swollen lip. They assume a physical fight even though no one said there was one, including an independent witness.
Upon running my client's name through criminal databases, police saw he had prior arrests for domestic violence and resisting arrest from another state.
Getting a dismissal on a case with priors is difficult. My client was out of the home for many months. He suffered greatly, as did his family. In working with his wife, we were able to learn how she injured her lip (not DV). We were happy to go to trial, but it is always best to get a guarantee.
We showed the prosecutor the story of the wife's injury and backed it up with the 911 call showing that she simply wanted medical help. The prosecutor tried to get evidence to support an assault, but could not. Dismissal.
The client was still on probation in the other state. A conviction would have meant revocation of that probation and a likely prison sentence.
A long term patient of my client accused him of inappropriate touching during a massage at Boulder County Massage Envy. She reported immediately.
We were able to show how the story developed from accidental touching to intentional penetration via a protective husband and a terribly suggestive investigation. The complaining witness likely was triggered by the accidental touching, causing a PTSD flashback. The flashback seemed real, but was not, as supported by the prosecution's sex assault expert. The complaining witness did not lie but instead believed a false accusation.
The biased and suggestive investigation prevented the truth from coming out until trial. The prosecution refused to consider this evidence. They did not know what hit them.
My client says I saved his life. Several jurors hugged him after trial, telling him to put this behind him - they were saying we believe you are innocent. Only a few months later, he is beginning to enjoy life again, rather than starting sex offender therapy and facing a lifetime of probation, parole or prison on a felony sexual assault.
February 2018 DUI trial win:
My client crashed into Boulder Creek on his way to Nederland at 3 AM after playing pool at the Dark Horse. He found himself upside down, belted, and underwater. Fortunately, he was able to extricate himself and swim to safety.
Once on the shore, my client wanted a cigarette but his lighter was soaked. He had purchased a pint bottle that was in his pocket. Shivering and angry with himself for crashing his brother's car by driving too fast and losing control, he drank half the bottle or more and set it down. The bottle fell in the creek.
His BAC was related to drinking after driving, not prior to. The jury may have been skeptical of the defense, but they believed in the presumption of innocence until and unless proof of beyond a reasonable doubt shows guilty.
A tough win that saved my client his job, his semester in school, and lots of time and money. He learned much simply by saving his own life from the creek.
On June 11, 2018, we received official notice exonerating my client from the university office of institutional equity at the University of Colorado - Colorado Springs (UCCS). She was on her way out of the country for several weeks to represent her country in athletics when she got the good news. She can enjoy the trip knowing that she will not lose her scholarship and will be able to graduate without “responsible for sexual misconduct” on her transcript.
A few months ago, I was called by parents concerned with how UCCS was handling an allegation of sexual assault. They wanted someone to jump on the case and protect their child. These cases need immediate work due to strict timing issues.
Here, my client got very intoxicated after exams. She was blackout drunk and her friends brought her to bed, gave her aspirin, Gatorade, and a bucket to vomit into. She was not able to take care of herself and she relied on others. One of the others was her girlfriend. She was sober. She is bigger and stronger than my client. And she has full control of her mental and physical abilities. She also took on the role of caretaker, in a position of trust. They kiss and fool around and both sleep in the bed until morning. They sleep together the next evening as well when both are sober.
The client realizes from her severe intoxication that she must deal with some prior trauma. Alcohol is not the answer. It is harming her growth and athletic ability. She decides to get into therapy, quit drinking, and end a destructive, co-dependent, and enabling relationship. This happens a week or so later.
The girlfriend is not happy about the end of this relationship. She is also dating someone else. This person hates the client because she worries the client will take her girlfriend back. This person has struck the client violently, causing a concussion, during team practice.
A month or two later, the girlfriend decides to report a sexual assault to UCCS. The report is a forced penetration claim – this equates to rape with force, a severe felony under state law if the case gets into the criminal courts.
So, a sober person goes into the room of a severely drunk person and claims she is forced to penetrate the drunk one she is caretaking. Here, it is two women. Can you imagine a sober male student reporting that a blackout drunk girl forced him to penetrate her while he took care of her? I suspect most would assume he is trying to cover for his bad behavior. The chance that an investigation would focus on the guilt of the drunk woman is zero.
It may seem this was an easy case.
But, in Title IX cases, there is no presumption of innocence. There is no burden of production on the accuser. Once a claim is made, if you do not defend yourself, you lose. The burden of proof is by a preponderance (50.1%). Prior false accusations are not relevant, prior bad behavior by the complainant is not relevant and other similar valid evidence may not be considered. There is no right to cross-examination of any witness, including the accuser. There is often no hearing, meaning that you do not get to see the testimony or face them. The school often requires a statement from the accused as to what happened prior to providing any specific information as to what is claimed – here we were only informed of the name, the charge, and the approximate date only despite policies requiring specific information. There is no subpoena power to force a witness to give a statement or provide other evidence. Although you can have a lawyer, the lawyer has limited or no ability to speak for the client or communicate in the case. Appeal rights are limited and only to specific issues. AND, all evidence in the Title IX case will be turned over to police and prosecution if requested.
The Title IX investigators have no prior police or criminal investigation experience. They are trained by Title IX trainers that believe all accusations are true and victims never lie. The school's goal is to avoid scrutiny by the Federal government that could result in withdrawing all Federal funds, including loan guarantees. If a school cannot get student loan guarantees, they will lose half or more of their students and tuition.
A better system would require clear and convincing evidence and presume a person innocent while allowing for attorney cross-examination after an investigation by retired police detectives. Due process requires this as well as other protections.
Fortunately, here we prevailed.
In other cases, we have won at appeal (Colorado State University – CSU) or found a way to limit the collateral consequences (University of Colorado – Boulder – CU) or made a deal with University legal counsel after appeal but prior to filing a Federal lawsuit. There are times when it is best to accept school consequences to keep the complainant satisfied so a criminal case is never filed. The worst result is a criminal filing, potentially resulting in Felony Sexual Assault charges with a potential for a lifetime of probation, parole, or prison and sex offender registry.
This past week, I began my tenure as faculty at the Trial Lawyers’ College. I helped teach the 2018 Psychodrama for Lawyers program at Thunderhead Ranch outside DuBois, Wyoming. In this program, students learn the tools of psychodrama while working on personal issues that may prevent them from being the best lawyer and person they can be. Following this portion, we use these skills to teach the student how to work with their client to put their case into action. We practice on student cases. The goal is that the student can get as much information from the client and others, including motives and relationships.
I have been learning these skills for many years, attending the 3 week Trial Lawyers’ College in DuBois, Wyoming in July 2010, and following up regularly with many graduate programs and regionals. I practice with our local working group. I used these skills in my office and in the trial.
It is a great honor to me that I have been chosen to be faculty. I thoroughly enjoy getting better and helping other lawyers grow. Last week, I saw students enter the program scared and with limited emotions. After working, an emotional weight has been visibly lifted. Their confidence grows. They see how they can better help their clients. I get great joy from teaching, but I also learn the skills in a deeper and fuller way.
I will be back in DuBois in August as a student and in Alaska in February as faculty.
Thank you Gerry Spence and all of the great trial lawyers that have put together this college - https://www.triallawyerscollege.org/
A few months ago, my client had a bad reaction to a prescribed medication called amitriptyline. As a result, he was not in his right mind. If you have ever had this experience, then you know how scary it can be. His family sought medical help for him through paramedics. This resulted in the police coming and "investigating." The police arrested him for hitting his significant other while the other was trying to calm him down physically. Through proper investigation and seeking the help of a toxicologist, we were able to prove that my client was not responsible for his actions because of the bad reaction. This is known as involuntary intoxication and it is a complete defense to any criminal act. Involuntary intoxication can happen if someone slips you a "mickey" or drugs you without your knowledge. It can also happen if you take prescribed medication as indicated, but it does not react as expected. Happily, my client is no longer facing charges and can live his life without the interruption of the government.
Today, I was able to return a good person's drivers' license after winning a DMV hearing. The way to win at DMV is rarely to argue the substance or facts. I won this one by getting the DMV to violate their procedures, recognizing it and knowing what to do. The hearing officer was not happy, but he knew he had to dismiss.
In the last part of August, I got to do one of my favorite things. I spend about 10 days at Thunderhead Ranch, outside of Dubois, Wyoming, practicing trial skills with some of the best trial lawyers in the country. This is Gerry Spence's Trial Lawyers' College. Gerry built the college and still teaches at his advanced age. Each day, we wake up early, often going for a hike and then getting breakfast at the cookhouse. We work from 9am-9pm with breaks for lunch and dinner. This is not a lecture series. Instead, we work in small groups and practice skills with staff trainers and other attorneys. The goal is to best tell the story of your case. There are also break out sessions where attorneys teach things they have learned. I taught about DUI Jury Selection. It was lots of hard work, but I feel more invigorated than ever. I cannot wait to try my next case.