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. 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 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 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 were 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.
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