There is a lot to say about this case.  I have seen people suggest we should change the law on self-defense based on this case. I disagree. I do not want my rights to change because one person was acquitted. The Rittenhouse case was about a lot more than self-defense. I watched some and found the prosecutor to be offensive to gun owners and generally over the top. The defense was funded at about $2 million dollars, likely including more mock trials than most in any case.

If you go looking for trouble, and find it, expect to be charged with a crime. You may have self-defense, but that is a trial defense for a jury to determine. If you are considered the initial aggressor, you do not have the right to self-defense (unless you properly withdraw from the confrontation. The jury will be from the community where the act took place – each jury will view the reasonableness of self-defense differently.

There is no duty to retreat in Colorado. You may stand your ground.

This is a tragedy no matter what.  The victims and their families suffer regardless of the trial result and sentence.  Convictions do not cure pain.  Closure does not come in the courtroom.  Dealing with the pain of losing someone, or the pain of being a victim of a violent crime or sexual crime (PTSD), takes more than any court can give.  I recommend therapy.  If anyone promises you closure through a conviction, they are lying to you and they know it and you should seek other sources for your healing.

As a criminal defense attorney, I hear people say the castle doctrine or self-defense should not be allowed to be argued to a jury.  This I cannot abide.  Self-defense in all its forms is a protection for the individual when the government tries to second guess decisions, tough ones, that result in harm.  When the press is involved, prosecutors start thinking like politicians and stop caring about the facts as much as a future election.  Justice is not found in the press.  The press is about selling papers.  The press will make the facts seem a certain way to get more eyeballs, more clicks, more advertising dollars.  Politician prosecutors will think their name and photograph means they can go to Congress or the Senate or maybe even President.  But, at least they become a judge. 

In Colorado, self-defense is allowed to be argued even if there is only a scintilla of evidence.  Very small.  A judge excludes the defense only very rarely because they know the appellate courts will overturn the conviction.  The law is designed to allow a citizen accused of a crime to present their defense.  It is up to the jury to decide if the defense is viable.  I believe in this theory.  And, in the case, it appears the jury found the defense to be lacking.  In another case, they might say this defense was viable.  I am not in favor of limiting self-defense, a right of the people.  I favor the wisdom of the jury that sees and hears all the evidence.

Colorado has the so-called Make My Day (thank you Clint Eastwood) Law that allows a judge to dismiss cases where the person is defending themselves, their family, or guests from intruders.  This law allows the use of deadly force in your home when you reasonably believe you or another person may be seriously harmed if you do not use force against an uninvited intruder. If the person is leaving, this won’t apply. If the person was invited into your home, it won’t apply. The defense can also be argued to a jury if the judge does not dismiss.  The basic tenant of self-defense is that you reasonably believe you are facing danger and that your response is reasonable to stop or prevent the danger you face.  The greater the danger, the greater the force you can use to prevent it. 

While I hope I never have to use force against a person, if I do need to, I want self-defense to be a strong, fully developed personal right so I do not get convicted for protecting myself or my people.  These rights may not be perfectly applied or argued, but when we need them, I want them there.  Most of the time, a jury will do the right thing.

Colorado Jury Instruction on Self Defense:

USE OF NON-DEADLY PHYSICAL FORCE (DEFENSE OF PERSON)

The evidence presented in this case has raised the affirmative defense of “defense of a person,” as a defense to [insert name(s) of offense(s)].

The defendant was legally authorized to use physical force upon another person without first retreating if:

  1. s/he used that physical force in order to defend himself/herself or a third person from what s/he reasonably believed to be the use or imminent use of unlawful physical force by that other person, and
  2. s/he used a degree of force which s/he reasonably believed to be necessary for that purpose. [, and]
  3. [3.  s/he] did not, with intent to cause bodily injury or death to another person, provoke the use of unlawful physical force by that other person.]
  4. [4.  s/he was not the initial aggressor, or, if s/he was the initial aggressor, s/he had withdrawn from the encounter and effectively communicated to the other person his/her intent to do so, and the other person nevertheless continued or threatened the use of unlawful physical force.]
  5. [5.  the physical force involved was not the product of an unauthorized combat by agreement.]

The prosecution has the burden to prove, beyond a reasonable doubt, that the defendant’s conduct was not legally authorized by this defense. In order to meet this burden of proof, the prosecution must disprove, beyond a reasonable doubt, at least one of the above numbered conditions.

After considering all the evidence, if you decide the prosecution has failed to meet this burden of proof, then the prosecution has failed to prove the defendant’s conduct was not legally authorized by this defense, which is an essential element of [insert name(s) of offense(s)]. In that event, you must return a verdict of not guilty of [that] [those] offense[s].

After considering all the evidence, if you decide the prosecution has met this burden of proof, then the prosecution has proved the defendant’s conduct was not legally authorized by this defense. In that event, your verdict[s] concerning the charge[s] of [insert name(s) of offense(s)] must depend upon your determination whether the prosecution has met its burden of proof with respect to the remaining elements of [that] [those] offense[s].

COMMENT

  1. See 18-1-704(1)–(3), C.R.S. 2019.
  2. See Instruction F:36 (defining “bodily injury”).
  3. See People v. Garcia, 28 P.3d 340, 347 (Colo. 2001) (“the no-duty to retreat rule does not apply when a non-aggressor pursues an initial aggressor who has withdrawn because in that situation, the non-aggressor in fact becomes the aggressor”; however, the trial court erred in refusing to give a no-duty to retreat instruction in this case because the victim had not withdrawn, the defendant was not out of danger at the time that she killed him, and the jury could have mistakenly concluded that the defendant had a duty to retreat before using deadly force); Idrogo v. People, 818 P.2d 752, 757 (Colo. 1991) (because the question of whether the defendant did in fact retreat was vigorously disputed, the defendant was entitled to have the jury properly instructed on applicable law of nonretreat; trial court erred by not instructing the jury that an innocent victim of assault need not retreat before using deadly force if the victim believes the use of such force is necessary for self-protection and the belief is based on reasonable grounds).
  4. If the jury is given an instruction that utilizes the language of section 18-1-704, it is unnecessary to give a separate instruction concerning the concept of “apparent necessity.” See Beckett v. People, 800 P.2d 74, 78 (Colo. 1990) (a separate “apparent necessity” instruction is not necessary where jury instructions adequately informed the jury that it was required to consider the defendant’s reasonable belief in the necessity of defensive action).
  5. The above instruction does not include multiple assailant language from People v. Jones, 675 P.2d 9, 14 (Colo. 1984). More recently, the supreme court has explained “that Jones does not require a trial court to give a specific multiple assailants instruction in every case involving both multiple assailants and self-defense.” Riley v. People, 266 P.3d 1089, 1094 (Colo. 2011). Instead, Jones stands for the principle that a jury must consider the totality of the circumstances, including the number of persons reasonably appearing to be threatening the defendant, (1) when evaluating the reasonableness of the defendant’s belief that he needed to use self-defense in the given situation, and (2) when evaluating the reasonableness of the actual force used by the defendant to repel the apparent danger. See Jones, 675 P.2d at 14. The purpose of this rule is to ensure that the jury understands that it may consider all relevant evidence when assessing the reasonableness of the defendant’s actions. Thus, so long as the given instructions properly direct the jury to consider the totality of the circumstances during its deliberations on reasonableness, those instructions will satisfy Jones.

Riley, 266 P.3d at 1094 (the instructions given, when read together, accurately described the law of self-defense in the multiple assailants situation, in that they described the law of self-defense and broadly provided that the jury should consider the totality of the circumstances when evaluating the reasonableness of the defendant’s actions); + cf. id. at 1097 (Coats, J., concurring in the judgment) (arguing that the defendant’s tendered instruction was improper because it simply “amplif[ied] the statutory definition of self-defense itself” rather than “explain[ing] the defendant’s theory of the case by relating the circumstances as he perceived them to be to the law of self-defense”).

  1. Participation in an unauthorized “combat by agreement” is a disqualifying condition that, like initial aggression and provocation, establishes an exception to the affirmative defense of self-defense. Although section 18-1-704(3)(c) requires proof that the agreement was “not specifically authorized by law,” this language does not establish a separate defense. See also Instruction H:04 (defining the affirmative defense of consent, under section 18-1-505(2), where “the conduct and the injury were reasonably foreseeable hazards of joint participation in a lawful athletic contest or competitive sport”). “Colorado case law makes clear that there must be a definite agreement before a court can instruct a jury on the mutual combat limitation on self-defense.” Kaufman v. People, 202 P.3d 542, 561-62 (Colo. 2009) (“Nowhere in the [self-defense] statute does the General Assembly define ‘combat by agreement.’ Rather, the elements of this self-defense exception have been developed through case law.”). Accordingly, in a case where there is an evidentiary basis for including language defining the combat by agreement exception, draft a supplemental instruction specifying the relevant principles of law that the jury should apply to decide whether the combat by agreement was “unauthorized.” See, g., § 12-10-103(15), C.R.S. 2019 (defining “tough person fighting” as including nearly all types of combat by agreement, other than sanctioned boxing and martial arts training that is conducted in specified circumstances); § 12-10- 107.5, C.R.S. 2019 (“tough person fighting” is a class one misdemeanor); § 18-9-106(1)(d), C.R.S. 2019 (making it a class three misdemeanor to engage in public fighting, other than in an amateur or professional contest of athletic skill); § 18-13-104, C.R.S. 2019 (dueling statute, prohibiting (1) agreements to fight in a public place, except in sporting events authorized by law; and (2) agreements to engage in a fight with deadly weapons, whether in a public or private place).
  2. When submitting an offense that is defined with the alternative mens reas of “knowingly” and “recklessly,” see, g., § 18-3-204(1)(a), C.R.S. 2019 (third degree assault), use separate instructions to define self-defense (1) as an affirmative defense to an elemental instruction that defines the offense with only the mens rea of “knowingly”; and (2) pursuant to section 18-1- 704(4), with respect to a separate elemental instruction that defines the offense with only the mens rea of “recklessly.” See Instruction H:13 (affirmative defense of “use of non-deadly physical force (defense of person—offense with a mens rea of recklessness, extreme indifference, or criminal negligence)).
  3. In a case where more than one exception is submitted (e.g., initial aggression and provocation), include a conjunction.
  4. In determining what exception(s) to instruct the jury on, the Committee notes that, to warrant an instruction, the exception must be supported by the evidence. See Castillo v. People, 2018 CO 62, ¶ 4, 421 P.3d 1141, 1142 (concluding that the trial court reversibly erred in instructing the jury on the initial aggressor exception because it was unsupported by the evidence).
  5. See People v. Tardif, 2017 COA 136, ¶¶ 38, 433 P.3d 60, 68 (holding that, because “none of the elements of conspiracy require the use of physical force,” self-defense is not an affirmative defense to conspiracy).
  6. See People v. Koper, 2018 COA 137, ¶ 18, __ P.3d __ (holding that, where the evidence showed that the defendant acted in self-defense against a third party, he was entitled to a “transferred intent” self-defense instruction as to the victim because the victim “was a bystander incidentally affected by [the] defendant’s asserted attempt to defend himself against what he perceived as a threat posed by” the third party).
  7. See People v. Coahran, 2019 COA 6, ¶ 27, 436 P.3d 617, 623 (holding that the defendant was entitled to a self-defense instruction “[b]ecause the charged criminal mischief arose out of her use of force upon the [victim] (albeit indirectly)”)
  8. In 2018, the Committee added Comment 9.
  9. In 2019, the Committee added a supplemental citation to Riley in Comment 5, and it also added Comments 10, 11, and 12.

December 1, 2021 Boulder is Different – Handing a Case in Boulder Requires Local Knowledge

I try cases all over Colorado. Every court is a little different, but Boulder is a special case. I opened my practice in Boulder in 2002. It is different. What is common in other places, such as an aggressive style of arguing and gamesmanship, causes difficulty in Boulder. Rebukes from the judges. [DAs seem to get to play by different rules, maybe that is my bias talking.]

It is common to meet Judges, prosecutors and defense attorneys in Boulder who never practiced outside of Boulder County. They have their own way. Violating these unwritten rules causes problems. It does not matter if you do not know them, because many folks assume their way is common around the state.

Does you know the Boulder unwritten rules? We do, and we know how to get our arguments across effectively without offense.

November 24, 2021 - Jury Selection – Is Boulder Different? How To Pick a Jury Without a Jury Consultant, No Bull

Jurors in Boulder have a way too. Some is cultural, some is socio-economic and education based. Of the first 12 jurors placed in the jury box in Boulder, you will have 3 PhD educated scientists, 6 engineers of some type, and maybe 3 people without a college degree. It is uncommon in most jurisdictions to have a majority jury with a college degree. Boulder also has a lot of college students under 25 years of age. Many of these jurors have money and make money. I rarely see a black or brown face on a jury panel in Boulder.

Does your lawyer regularly pick Boulder juries? We do, and we win with them too.

Many believe that Boulder jurors are biased against gun owners, and the use of guns for self-defense and self-defense in general. I agree that many in Boulder county would support significant gun restrictions and some may even have negative view of guns in general. But I have tried and won gun self-defense cases and general self-defense cases here. Most of the county is not in the City of Boulder, with a significant portion in the western mountains, and eastern farming communities and Longmont.

Recently, a potential client called and asked, can you win a sex assault in Boulder? I said yes, and I have often and recently. The potential client said a very famous Colorado lawyer forced him to take a deal because the lawyer did not think anyone could win a Boulder Sexual Assault due to the jury pool. I heard the facts and knew is it was winnable.

Many lawyers rely on demographic speculation, guesses based on how a person appears to them, to choose a juror. This may work in politics where you only need 50.1%, meaning you can be wrong 49.9% of the time. It does not work in jury selection. If anyone has made assumptions about you and you had to deal with that assumption over time, you know how it feels. I like jurors that are honest with me, even if I do not like the answer. I have friends across the spectrum. We find commonality and that keeps us together. I find if you treat a juror like an individual, listen to them, and be fair honest and decent, they will give my client a great trial and verdict.

In learning about this community, I have come to know how to go around the state and meet jurors where they are emotionally and philosophically. They may make assumptions about me (of course), but usually by the end of jury selection, we both know our initial impressions are only a slice of truth of the two of us. If I can accept them, they will accept me. If they accept me, they will accept you and our case.

December 8, 2021 Are you Innocent? Not Just Not Guilty, but Innocent? We Want Your Case.

I used to think the hard cases were ones where the client was innocent. I have heard it from other lawyers a lot. For me, it stems from a fear of losing a case at trial and knowing an innocent person would go to prison. When I was a public defender, this fear was in part because I did not think I had enough time to find the evidence nor the skill to show the truth at trial. Winning where your client was guilty was fun, a thumb in the eye of the prosecutor who made a bad plea offer and the system that was often so unjust. But losing an innocent person’s case was an indictment of me, my failures.

Not anymore. Over my 25+ years of practicing law, and especially since training at www.triallawyerscollege.org (including being an instructor since 2017), I know how to find the evidence and tell the true story of innocence in your case. It’s not just a feeling. I have backed it up with numerous trial acquittals and dismissed cases.

Are you scared to go to trial?

Is your lawyer scared to go to trial?

Is your lawyer trying to get you to take a deal when you are innocent?

We love innocent clients. It is extraordinary to fight these fights. The consequences remain the same. This drives the effort. The system does not see what I see, at first. Judges often treat innocent clients as if they are guilty. Prosecutors are often thoroughly convinced innocent clients are guilty and might get away with it. Police officers and witnesses are the same. For some reason, the more we show innocence, the more they try to show guilt. It seems to be a reaction, likely subconscious, to questioning their opinion and power. It feels like they think their opinion is fact. It’s not.

If a prosecutor is working for an unjust cause or in a system that could get a case this wrong, does cause them to question all their beliefs?

Is it easier to suppress this belief and double down on prosecuting?

Do they want to show their power by winning every case, even one where the person is innocent?

I am not a therapist for the system. I am just here to find the true story of innocence in your case and find the best way to show it so we can get a dismissal or acquittal. If you are innocent. If you are falsely accused. If you are unjustly charged. If you are over-charged. We want your case.

Not Guilty on Fraternity Sexual Assault 2017

When regret gets you thrown out of school and asking why gets you charged with a serious felony with lifetime prison consequences.

About a year after a Thursday night party at a University of Colorado Boulder fraternity house, I get a call from a distraught father looking for help.  He had hired a very confident attorney nearly a year prior.  This attorney spent the entire first phone call talking about himself and how great he is.  In fact, he never stopped talking about how great he is. Later I will show why that attorney needs to focus on his clients more than himself.  The father had learned by now that he made the wrong choice initially.

This time, he contacted an attorney friend in Glenwood Springs who sent him to me. 

The first meeting included the now 19 year old accused, his father and his father’s best friend.  We started with learning from them anything they wanted to tell me (for a portion, speaking with client alone to protect confidentiality).  I wanted to know these people and learn about their lives.  I needed to understand the family.  How they got here.

When they asked, I spoke about my process, the process I learned at the Trial Lawyers’ College at Thunderhead Ranch near Dubois, Wy.  I started my career as a Colorado Public Defender in Colorado Springs and Adams, County.  They taught me the nuts and bolts of criminal defense and I won many cases using their training.  I will always be grateful. 

The Trial Lawyers’ College taught me how to love my jury, how to empathize with complaining witnesses (according to Colorado statutes, if you claim an assault, you are a victim), the police and other witnesses.  We learn to reverse roles with all the people we meet to better understand who they are and what their motivations might be.  Other tools are taught and were used in this case.

I discussed the process and we started working immediately. 

The University of Colorado Office of Institutional Equity and Compliance starts to investigate.  This is CU’s Title IX office created to comply with the “Dear Colleague Letter.”  Responding to schools and police departments failing to properly investigate sexual assault cases, the Obama administration created a process to solve the problem.  The process took away almost all rights to due process of the accused.  The process lowers the standard of proof to preponderance of the evidence, the scales of justice, 50%-50%.  On the accusers side is not just the weight of any evidence found, but also the threat by the government to take away all Federal money, all student loan guarantees, all grants, all aid.  The accused, has no power.  He cannot even ask a single question to the person calling him a rapist.  [New rules allow cross examination in certain circumstances, but not always. CU has ruled that any claim that takes place off campus is does not get cross examination. This is a due process violation that will take some time to get overturned.]

A year earlier, CU OIEC met with the complaining witness, a college freshman from the mid-west coming of age at a school where everyone appears to be very thin, social, popular, drinks alcohol, may use drugs and is sexually promiscuous.  She did not report it initially.  The University of Colorado Office of Victim Assistance received an anonymous report from a fraternity member.  She states that seeing the word victim was the first time she considered that she might be a victim. 

In her first meeting with OVA, the CU counselor/therapist/victim advocate told the complaining witness that she was raped.  From this point, the complaining witness would push to get my client punished as a rapist, even after a Boulder County jury found him not guilty.  Had she never encountered this CU employee, she may never have suffered the consequences of believing she was a victim.

A note about the process of any rape counselor.  They do not question or investigate anything about the story told by the person sitting in front of them.  The current theory is that you always believe the victim.  They assume she is a victim and telling the truth, and no matter what, they will support her as a victim.  During meetings, including therapy, they repeatedly tell her she is a victim and that all feelings and contradictions are just signs of being a victim.  All changes in story or “fact” are the result of being a victim.  A vulnerable 18 year old walks into an office not knowing what to expect, feeling bad about getting drunk and hooking up in a public way, feeling shame of lots of people knowing her worst choice.  She is told it is not her fault.  That feels much better.  She might be pissed about being treated like a anonymous hook up rather than a girlfriend.  The rape counselor that sees all things through one lens tells her to stand up for others who cannot and that he will do it again.  How many people in this situation could truly stand up and say no, I was not raped.  After a few weeks of indoctrination, anyone would start to believe. It gets really hard to admit the truth the farther the case gets.

https://www.saveservices.org/2021/08/title-ix-hall-of-shame-most-egregious-campus-lawsuits-in-each-state/

There is a Federal Case from Colorado discussing recording police. In Irizarry v. Yehia, the Colorado Federal District Court indicated that recording police is a First Amendment Right that cannot be violated by the state. This case will be appealed by the police union defense lawyers. Watch for a new finding in the 10th Circuit in the months to come. This may even proceed to the United States Supreme Court.

Previously, I wrote the following about the law on recording police in Colorado:

I have read about police officers saying it is illegal for a suspect or witness to record their contact with police, or for a bystander to record a police contact with others.  I was threatened with jail myself when I attempted to do this a few years ago.  I have seen in police reports that officers confiscate telephones used to record, or to throw them or destroy them.  This is illegal.  In the state of Colorado, you are allowed to record any incident involving a police officer.  Colorado Revised Statutes §16-3-311 is the law specifically allowing this.  It is reproduced in full below. 

As a practical matter, I suggest not telling the police you are recording them.  If they were going to act in a bad manner, they will change their ways.  If they want to violate the law, they will destroy your phone.  Just start recording as you see the emergency lights behind you or when you see them approaching.  Video will be difficult, but audio should be easy.  If you can, put the phone with the microphones pointed up towards your face in a pocket that allows the microphones to be exposed.

Remember to be polite, not to incriminate yourself, and to assert your rights not to talk, to have an attorney, and not to be searched without a warrant.  Then, do not answer any questions other than identifying information. 

If it’s a DUI, refuse all Roadside tests “because your lawyer told you Roadsides are BS.” Once arrested for DUI, choose a blood test for accuracy, and only refuse if you are certain to have a very high number.  See my website for more information.

Do not argue with police about what is legal or not.  It serves no purpose.  The place to discuss the legality of any police action is in Court with a lawyer, not on the street alone with a police officer that can use his authority to make your life difficult.  Just wait, the joy will be much better when we win.

BTW – recording a conversation you are not a part of, meaning you are not present for and/or the speakers cannot see you to know you could hear them, is the crime of eavesdropping.  You can record any conversation you are a participant in, or that the participants would believe you could hear (think – a conversation at the next table at a restaurant or bar).

C.R.S.A. § 16-3-311

  • 16-3-311. Peace officer incident recordings

Currentness

(1) A person has the right to lawfully record any incident involving a peace officer and to maintain custody and control of that recording and the device used to record the recording. A peace officer shall not seize a recording or recording device without consent, without a search warrant or subpoena, or without a lawful exception to the warrant requirement.

(2)(a) If a peace officer seeks to obtain from a person a device used to record an incident involving a peace officer in order to access the recording as possible evidence in an investigation, the officer shall first:

(I) Advise the person of his or her name, his or her badge number or other identifying number, and the name of the law enforcement agency;

(II) Identify the legal reason for which the information is requested; and

(III) If practicable under the circumstances, inquire whether the person will voluntarily provide the officer with a copy of the specific recording that is relevant to the investigation either by voluntarily providing the device to the officer or immediately electronically transferring the information to the officer or the law enforcement agency so that the person may retain possession of his or her device, the recording, and any personal non-evidentiary private information contained on the device.

(b) If the person consents voluntarily to the transfer of the device to law enforcement, the peace officer shall limit his or her search of the device to a search for the recording that is relevant evidence to the investigation, and the device shall be returned to the person upon request and with all convenient speed.

(c) If the person consents to an electronic transfer of the recording, the electronic transfer shall take place as soon as possible and without unnecessary delay.

(d) In circumstances when the immediate electronic transfer is not practicable or if the person does not consent to the electronic transfer of the evidentiary information or to the seizure of the device, the peace officer may arrange for the transfer or delivery of the information or device with the person to the peace officer or to the law enforcement agency by any alternative means consistent with any policies and procedures of the law enforcement agency.

(e) Notwithstanding the provisions of this section, a peace officer has the authority to temporarily seize and maintain control over a device that was used to record an incident involving a peace officer for no longer than seventy-two hours to obtain a search warrant when exigent circumstances exist such that the peace officer believes it is necessary to save a life or when the peace officer has a reasonable, articulable, good-faith belief that seizure of the device is necessary to prevent the destruction of the evidentiary recording while a warrant is obtained.

(3) The provisions of this section do not apply to devices seized incident to arrest.

(4) Nothing in this section shall be construed to allow a person to interfere with a peace officer in the lawful performance of his or her duties.

Credits

Added by Laws 2015, Ch. 212, § 2, eff. May 20, 2016.

C. R. S. A. § 16-3-311, CO ST § 16-3-311

Current through legislation effective Sept. 1, 2019 of the 2019 Regular Session. Some statute sections may be more current. See credits for details.

Not Responsible for Sexual Misconduct - University of Colorado Boulder - this was one of the first contested hearings under the newer Title IX rules at CU. There were lots of investigators and complainant shenanigans, but the retired Judge saw the truth. My client testified, as did a few other witnesses generally supporting him. The complainant and her accusing friends mostly refused to testify. The university ruled that since the act did not occur on campus, they did not have to provide Due Process confrontation and cross-examination rights. This will eventually be overruled by the Courts, but not in my case - we won. The client graduated and has an excellent job. His life changed and was quite difficult for 9 months, but that is better than losing and it changes forever.

Stalking Harassment Domestic Violence Dismissed - after a thorough investigation and legal analysis, the elements of the charges were found to be lacking. While this may be true, getting a prosecutor to dismiss even when they agree is not always easy. This prosecutor was pushing a deferred sentence deal (which we refused) up until the moment she was dismissed. Sometimes, it is best to stand up and say ready for trial. The client's record remains clean and the arrest is sealed.

Dismissed DUI Jefferson County - this poor guy refused when he should have taken the test because it would have been in his favor. It is always difficult getting a prosecutor to dismiss a DUI, let alone one with a refusal (and a second at that). A prosecutor I previously worked with, one that knows my skills and that I am a decent human, listened to reason and agreed that an innocent person should not get a DUI just because he refused. Saved his license, and therefore his job.

Not Guilty at Jury Trial - Denver Felony Sexual Assault with Force - This was an "acquaintance rape" claim. There was no offer. The complainant's family hired a private attorney and private investigator to make sure the prosecutor did their job properly. The DA had 35 years of experience. None of this bothered me. I don't scare easy. I worked with my client to tell the truth persuasively. We investigated fully. The jury was out for a short time. After the trial, several jurors appeared to complain to the DA that they never should have brought the case. That is not how it looked in the beginning. Another attorney told my client there was no way to win. If you are innocent and others say you cannot win, I can help.

Ski Injury - Plaintiff - we successfully negotiated a settlement for our client who was hit by another skier from behind. The client is healthy and has been made whole by the settlement. I enjoyed working with my friend Sean Brown on this case (Steamboat Springs lawyer).

Title IX University Sexual Misconduct - Not Responsible - August 2020

A scholarship athlete at Colorado School of Mines was accused by another student. My client said it was consensual and he told me his story. Despite the ring of truth, Title IX defense is quite difficult. The burden of proof is only a preponderance – meaning more likely than not. At this time, there was no cross-examination. We fought hard and discovered numerous problems with the complainant’s story. Client’s story did not have these problems and made sense. The Title IX office (office of institutional equity) found my client responsible. But that is basically the investigator and his/her boss agreeing with each other. We appealed. Now we are outside of the Title IX office. Now we have people that have not been indoctrinated. They reverse and found my client Not Responsible for Sexual Misconduct. He was reinstated to the University, kept his scholarship, is playing his sport and will earn his engineering degree.

August 20, 2021 - Title IX Hall of Shame per SAVE

SAVE is a great organization dedicated to helping people accused of Title IX University Sexual Misconduct. The link and information below comes from them. More is added all the time – check them out. http://thefire.org and http://TitleIXforAll.com and https://helpsaveoursons.com/  are excellent resources as well. If you need help on these case, please call me.

August 20, 2021

SAVE has compiled a listing and brief summary of the most egregious Title IX lawsuits in each state, as of the end of 2020. SAVE encourages you to share the relevant lawsuit(s) with your state lawmakers, and urge them to enact legislation that affirms campus due process.

For more information, see the Analysis of Judicial Decisions Affirming the 2020 Title IX Regulations.

Arkansas (Doe v University of Arkansas):

  • The Eighth Circuit ruled, “We conclude that the complaint stated a claim under Title IX of the Education Amendments of 1972 that is plausible on its face, but that the other claims were properly dismissed.”

Arizona (Schwake v. Arizona Board of Regents):

  • The Ninth Circuit ruled, “we conclude that Schwake plausibly alleged that the University discriminated against him on the basis of sex. We, therefore, reverse the district court’s dismissal of the Title IX claim.”

California

  • Doe v Allee [USC]:
    • USC used a single investigator model system, and the college appeals board only had the power to overrule the decision if the investigator’s decisions were not consistent with facts presented in the investigative report. Since the investigator decided what facts were included in the report, she could never be overruled.
  • Boermeester v. Ainsley Carry:
    • The California Appeals Court ruled,  “We conclude USC’s disciplinary procedures at the time were unfair because they denied Boermeester a meaningful opportunity to cross-examine critical witnesses at an in-person hearing. We thus reverse and remand with directions to the superior court to grant the petition for writ of administrative mandate.”

Colorado (Neal v Colorado State University-Pueblo):

  • A third party saw a hickey on a female student’s neck and reported the student’s boyfriend as a rapist. Even though the supposed victim of the rape swore to the university that the sex was consensual, the university expelled the student after giving him less than 24 hours’ notice to the hearing and refusing to give him a copy of the investigative report.

Connecticut (Doe v Quinnipiac):

  • The university opened a sexual assault complaint “on behalf of” a previous girlfriend of a student, even though she had not filed a complaint herself. The university subjected the “accused” student to a 7-hour hearing with no witnesses and subsequently destroyed the evidence of the hearing and the prior investigation.

District of Columbia (Doe v George Washington II):

  • The U.S. District Court ruled in favor of the accused student and remanded the case for a second hearing, instructing the university to consider the toxicology reports and phone records that showed the accusation to be false. The school did not consider any of the new evidence and found him responsible again, so the student had to sue a second time.

Florida (Jia v University of Miami):

  • The university instructed the accused student that he could not file a counter-complaint against the accuser, even though they were both drunk because he needed to be “compassionate.” The accuser later worked with a professor to accuse the plaintiff publicly of assault; the university did nothing to stop this harassment.

Georgia (Doe v Board of Regents of Georgia [GA tech]):

  • The university used a single investigator model, did not interview the witnesses of the accused, withheld the identities of the accuser’s witnesses until the day the expulsion decision was made and provided no opportunity for cross-examination.

Illinois (Doe v University of Chicago):

  • The university found the accused student to be not responsible. But the accuser proceeded to distribute pamphlets falsely stating that the university had “found him guilty.” The university instructed the accused student that he could not publicly contest the pamphlet allegations, supposedly in order to protect the accuser’s confidentiality.

Indiana (Doe v Purdue University):

  • The university withheld the investigative report which included a made-up confession by the accused student. Additionally, two-panel members admitted to not reading the materials presented to them prior to the hearing, and the accused student was not allowed to present witnesses.

Iowa (Doe v Grinnell):

  • The university contracted with an outside adjudicator who was the former Iowa Chief Justice and required that she use an affirmative consent standard that required the student to prove consent rather than the university to prove lack of consent. The university consolidated two claims by different accusers of two separate incidents.

Kentucky (Elmore v Bellarmine):

  • Elmore reported a professor’s sexual harassment of himself. The university retaliated against Elmore, turning the evidence against him and denying him counsel at the hearing.

Louisiana (I.F. v Tulane):

  • A student was criminally charged and then acquitted. At the subsequent university hearing, the hearing panel relied on allegations of a phone call made by the accuser to a friend shortly after the alleged sexual assault. During the criminal defense, the student had proven the phone call never occurred. But the university continued to rely on the non-existent phone call as inculpatory evidence.

Maryland (Doe et al v Salisbury et al):

  • Two accused students were denied the opportunity to ask critical questions of witnesses or to see witnesses testify.

Massachusetts

  • Doe v Brandeis:
    • The school did not allow the student any right to notice of charges, the right to counsel, the right to cross-examination, the right to review investigative reports, or the right to appeal. Additionally, the University refused to interview Doe’s witnesses.
  • Doe v Amherst:
    • A female student performed non-consensual oral sex on a male student while he was passed out. Inexplicably, the female student later accused the male student of sexual assault. The university found him responsible because even though he was blacked out at the time, “being impaired by alcohol is never an excuse,” the university argued. The male student later acquired text messages from the female accuser’s friends that proved the accuser had lied, but the university refused to reopen the case.

Michigan (Doe v Baum):

  • In this double-jeopardy case, the accused student prevailed in the initial hearing, but on the accuser’s appeal, was found responsible. The accused student was denied the right to cross-examination.

Mississippi (Doe v University of Mississippi):

  • The university excluded Doe’s exculpatory statements and evidence. The university also counseled Doe’s new girlfriend to not support him emotionally, or be subject to retaliation charges at the school.

Montana (Powell v Montana State):

  • A student held a private conversation with a professor in which the student stated he did not agree with the gender identity movement. The professor reported the conversation to school officials and a transgender student in her class, alleging the student represented a danger to transgender students. The university suspended the student.

New Jersey (Collick et al v William Patterson University):

  • Collick and other students were charged criminally and the university summarily expelled them, and issued a public statement praising the bravery of the “victim.”

New Mexico (Lee v University of New Mexico):

  • The accused student was not afforded the right to cross-examination, or to present evidence in his defense. The university prevented him from reviewing the evidence that did exist.

New York (Hall v Hoftstra):

  • When the accused student requested to review the investigative report, he was informed that he could review the report only under supervision, could not take notes, and could not speak with his attorney. The complainant admitted to hitting the accused in the groin, but administrators stated they “did not believe complainant was aggressive towards [the accused student].”

North Carolina (Gulyas v Appalachian State University):

  • University officials admitted to omitting key facts from the investigative report, and to not investigating an incident where the complainant physically assaulted the male student.

Ohio:

  • Doe v University of Cincinnati:
  • The accused student was subjected to a “respondent only” hearing where the board members asked no questions of substance at all. The accused was asked if he had any questions for the accuser, even though she was not present.
  • Doe v. Oberlin College:
    • The Sixth Circuit ruled, “Any number of federal constitutional and statutory provisions reflect the proposition that, in this country, we determine guilt or innocence individually – rather than collectively, based on one’s identification with some demographic group….John Doe argues that his complaint in this case adequately stated a claim that Oberlin College did precisely that when it determined his responsibility for a sexual-assault allegation. We agree, and reverse the district court’s decision to the contrary.”

Oklahoma (Ritter v Oklahoma City University):

  • The judge ruled that a student can allege discriminatory intent under the Twombly Iqbal standard. This standard makes it easier to sue the schools for Title IX violations.

Oregon (Doe v University of Oregon):

  • The university used a trauma-informed, single investigator model. The accuser changed her story multiple times, and the investigator concluded these inconsistencies made the allegations more credible.

Pennsylvania:

  • Doe v Penn State et al, August 2018:
    • The hearing panel convened a hearing in which neither the complainant nor the respondent was allowed to attend. The panel had been trained to believe that “only 2% of rape accusations are false.”
  • Doe v. University of the Sciences:
    • The Third Circuit ruled, “Doe filed a lawsuit in the District Court alleging that USciences was improperly motivated by sex when it investigated and enforced the Policy against him. Doe also asserted that USciences breached its contract with him by failing to provide him the fairness promised to students under the Policy. The District Court dismissed Doe’s complaint. Doe’s complaint contains plausible allegations supporting both claims. So we will reverse the District Court’s order dismissing Doe’s complaint.”

Rhode Island (Doe v Brown, 2016):

  • The accused student was prohibited from leaving his dormitory room until interviewed by administrators as part of their investigation, then he was banned from the campus indefinitely in the interim. On cross-examination, his faculty advisor did not use the student’s listing of the accuser’s inconsistent statements, and the student was later expelled.

South Carolina (Doe v Coastal Carolina University):

  • Local prosecutors declined to prosecute and the student prevailed in a university hearing. The accuser then submitted a late appeal, and the university accepted it anyway. The university held a second hearing, this time without witnesses, and found him responsible.

South Dakota (Tsuruta v Augustana University):

  • The accuser had a documented history of making false accusations. The accused had a physical disability that physically prevented him from committing rape. The university failed to interview witnesses who could provide information to confirm the disability, and found him responsible.

Tennessee

  • Doe v Rhodes:
    • School officials instructed the board to regard the evidence in the investigative report as “dispositive” that the accuser had been raped. The university only called female witnesses, and the accuser did not attend the hearing.
  • Mock v University of Tennessee:
    • After two students had a sexual encounter, the female student accused him of violating the college’s affirmative consent standard. During the hearing, the accused student was required to prove that he had met the affirmative consent standard, rather than the accuser having to prove a lack of consent. The male student was found responsible, so he filed an administrative appeal (TN state law procedure). The Administrative Judge overturned the university ruling, stating the affirmative consent standard is “flawed and untenable.”

Texas (Oliver v University of Texas Southwestern Medical School):

  • The accuser had a severe substance abuse problem. She stole her boyfriend’s prescription controlled medication and was arrested on drug possession charges. She tried to convince boyfriend to sign a false affidavit, and when that was unsuccessful, she retaliated by fabricating an audio recording of him assaulting her. She complained to the university, and the university initially dropped charges but summarily expelled Oliver when it discovered he had been arrested on charges relating to the audio recording because they believed that he had assaulted her.

Vermont (Doe v Middlebury):

  • During a study abroad semester, the accused had been accused and exonerated of sexual assault. The U.S. school then decided to do its own investigation, in violation of the contract with the foreign school. The home school used a single investigator model, had no hearing, and found the student responsible.

Virginia (Doe v Washington and Lee):

  • Following a sexual encounter, a female student experienced regret but did not believe she had been raped. She then spent a summer working at a women’s clinic where she became convinced that she had been raped. The school refused to show the accused student the complaint and did not allow him to use a lawyer.

Pre-Trial – Learning the True Story of Innocence

When we believe our client is telling the truth, we’re looking for a reason why the complainant would necessarily lie, misrepresent the truth, or just be wrong. Often, we can come up with a variety of possible reasons, but is there evidence to support it in discovery and where can we find it. Although we did discover an interesting conversation between my client and the woman receiving the massage, it was not documented. My client had told the woman that he had a $3 million policy protecting him in case he did harm or touched somebody inappropriately. The next massage my client gave this woman was when the accusation of penetration came out, which was very significant.

I am a 25+ year Criminal Defense Lawyer in Colorado. Since attending the Trial Lawyer's College 3-Week program in 2010, I have gradually learned to implement the TLC methods in every part of trial from voir dire and opening statement, to direct and cross-examination, and into closing argument. I continued my training with TLC by attending grad courses, psychodrama programs, and regional seminars almost every year since he graduated. "I would have had a much better three-week college if I would have allowed psychodrama to be the foundation and trust the process a bit more. I saw people embracing it and I was jealous, and for whatever reason, I just didn’t feel like I could do it. And that’s a regret." Fortunately, I have progressed since then. I am honored to be Faculty at the college, teaching regularly.

I worked extensively with my client on this case. This included a session with trial consultant Kaitlin Larimer and recreated the event during a Discovering the Story session at TLC Grad II with Colby Volkey, as well as plaintiff’s attorneys that have sued on behalf of sexual assault victims – the varied perspectives were of great value. During trial, I treated the accuser respectfully while developing the evidence to show that she may have experienced unintentional psychological suggestion to think something more happened, when it didn't. I used methods during the cross examination of the opposing witnesses to show what suggestion is and how it developed the complaint in this case.

"Just because you are suing, that does not mean you are lying – many sue because they have been harmed.  But, a multimillion dollar lawsuit is a motivation.”

We need more than a motivation. During a re-creation, my client brought up this idea of something called pain referral, we started to consider might have been what happened." Pain referral happens when a person is touched in one area, but the sensation of touch or pain is felt in a different spot, often where the muscle connects to a bone. The body has a network of interconnecting sensory nerves that are also attached to muscles. When someone is touched in one place, the brain can create the feeling that pain is located somewhere else in the body, and in this case, the bone connected at the other end of the muscle. This is not uncommon, so I brought in a physical therapist to explain how pain referral works and they also commented on a number of other important issues.

The Trial

During Voir Dire, I created a safe environment for the jurors to feel comfortable in answering his questions. I encouraged the jurors to 'tell him more' and overall respected their opinions. During opening statement, he made sure he told a story.

"You have to tell a story of innocence. It’s my belief, and this comes from my training at TLC, and the training I’ve had working as a public defender, that the prosecutor tells a terrible story about how guilty your client is. And it’s my belief that your sole goal in opening is to honestly tell a story of innocence from the moment you stand up. Hopefully, the jury goes back to neutral, where they’re thinking, 'There’s something to watch in this case, I don’t know what happened, but we need to pay close attention to find out.'"

I used several other TLC methods during the direct examination of his client, as well as other witnesses to relay to the jury that my client did not do what the woman had accused him of. We brought demonstrative exhibits, including a massage table and dummy named Lamont, into trial so his client could show the jury exactly what happened.

"I believe my client was seen as credible to the jurors because I trusted him, and he trusted me, from all the time we spent together and the interactions we had prior to trial."

Another important detail we discovered, was that the accuser had been sexually assaulted in her past. While this information was excluded from evidence by the Judge, evidence of flashback and triggers were not. I disagree with this Rape Shield law interpretation. I suspect that as mental health issues are better known and more accepted, the law will clearly allow this type of testimony.

The prosecution called a “blind expert” psychologist. They are blind because they know nothing about the facts of the case and simply speak in generalities. One way to combat this is to hire an expert to counter them. In many cases, I do not think this does much, maybe it gets some to ignore both experts. I prefer to use the prosecution expert’s reading list to develop evidence supporting my case. I did it here.

The prosecution expert agreed with and read to the jury a book passage saying:

“A person can inhabit a trigger and that triggers a flashback and the trigger comes from something that’s similar to their previous trauma. They reread it in their head. They can’t discern from what’s actually happening in real life and then they feel the same emotion at the end of that; the fear, the pain, and the distrust.”

The prosecution expert agreed with and read the following quote to the jury:

“When something reminds traumatized people of the past, their right brain reacts as if the traumatic event were happening in the present.  But because their left brain is not working very well, they may not be aware that they are re-experiencing and re-enacting the past – they are just furious, terrified, enraged, ashamed or frozen.  After the emotional storm passes, they may look for something or somebody to blame for it.”  The Body Keeps the Score: Brain, Mind, and Body In the Healing of Trauma, Bessel Van Der Kolk, M.D. P.45 (2014)]

During questioning of the complainant's husband, a statement was presented that benefitted his client immensely. I tried to understand and empathize with him. I sensed he had his own questions about the case. I allowed him to feel comfortable with me. I didn't attack him and was never angry with him. A safe space was created for him to speak the truth, and in the end, the husband's statement was important to a victory. The issue was why he told the Detective something a little different from what he said to the Massage Envy manager.  What he said was that he was so angry that he embellished what his wife had told him [no penetration] and instead said that there was vaginal penetration. This embellishment was heard by his wife and suggested she should say it too. After hearing this, the wife said penetration. I think that was probably the end of the case for the prosecution. When the husband left the stand, there was a huge shift in the way the jury was looking at the case.

We, as trial attorneys, are working on saving the innocent from this machine that is running them over. And these people told me after, these jurors were very happy to protect him from the government. It wasn't every juror, but it was enough of them to make an impression on me and make an impression on my client, that they believed he was innocent as opposed to not guilty. After trial, my client and I walked to our cars, and 4 female jurors came up to my client and hugged him, telling him not to let this change his life. I don’t know that my client will ever trust the government, but at least my client can trust society. At least he trusts the jury.

 

Dateline:    Sunday, August 18, 2019
Regarding:    News articles referencing Wesley David Gilreath and Jason Savela

Please note Colorado Code of Professional Conduct Rule 3.6 and comments   

I recently received notice of news articles from various press outlets regarding Wesley David Gilreath.  In some of these articles, there was information about me that was inaccurate.  According to the article, the source of the information was a United States Government employee.  I have not searched for all articles on the topic, but I will update as I find additional inaccurate information.

I have no comment on where the information came from or whether it was reported accurately.  Questions regarding that are for the sources and reporters themselves.  I am not a source of any information to any news reporter or news outlet.  The list of inaccurate information is not necessarily exhaustive.

It was reported that I was present when the United States Government searched Mr. Gilreath’s home.  I do not know if his home was searched.  I have never been to his home.  I was not present during any search of his home.   I have never met nor spoken with Special Agent Justin Stern of the FBI, the reported source of information.

It was reported that I made statements about Mr. Gilreath’s beliefs to the United States Government.  I did not.  Mr. Gilreath is the only person that can speak to his beliefs.   I have never met nor spoken with Special Agent Justin Stern of the FBI, the reported source of information.

To view the press release in full, click here.

About a year or so ago, I took over a case from some out-of-state lawyers on a rear-ender car crash that caused my client some long-term injury.  The other personal injury attorneys got policy limits from the at-fault driver.  It was a very small amount.  It did not begin to cover the injury to my client. 

My job was to get my client’s insurance to pay for the rest.  This is called uninsured or underinsured motorist coverage (UM/UIM).  Fortunately, my client had plenty of coverage.  You should review your policy to make sure you have at least $250k in coverage.  It tends to be very cheap and will save you if a person without adequate insurance, or no insurance, hits you.  There are very few car crashes where your medicals will be under $50k.  If you have a broken bone or any kind of head injury, it can be well over $100k.

A UM/UIM case is very similar to any car crash case, except there are duties by my client to her own insurance company and duties of the insurance company to her.  We have to cooperate with them, which usually means that we have to provide a medical release and make a statement.  [Both should be done only at the direction of a competent car crash lawyer, no without one.]  The insurance company must pay the claim in a reasonable time following cooperation.  If we do not cooperate, they do not have to pay.  If they do not pay after cooperation, we can sue them for bad faith, meaning three times damages plus attorneys fees and costs.  Suffice it to say, the insurance company does not want to suffer a Bad Faith plaintiff verdict.

There were issues on this case and we had to litigate due to timing.  In the end, we were able to settle prior to trial for an amount with which my client was pleased.  I believe we got every dime the insurance company was willing to pay without a trial.  The client really did not want to go to trial. 

I was happy to help the client.  She continues to heal.  The money will help her.

Insurance companies, whether your own or the at-fault driver’s, want to pay as little as possible.  Adjusters get bonuses based on results.  When they make you an offer, it is because they think this will save them money.  An offer of $5000 or less is a low-ball offer to clear the case.  It does not represent your damage or injury.  It means the adjuster clears a case and gets closer to a bonus.  A higher offer usually means they fear the case is worth much more.

A personal injury lawyer can help maximize the offer.  A good personal injury lawyer will help to make sure you return to health.  I am not a doctor and I cannot diagnose, but if you are hurting and the doctor says nothing is wrong, we should discuss how to proceed.  You need help.

If you want a personal injury lawyer that will listen to you and work to help you get healthy, and get your bills paid, let’s talk. 

NCARDC

The NCADRC was founded to help innocent and overcharged people accused of crimes against children.  If you are charged with harming a child, you will be vilified everywhere you turn.  There are innumerable organizations only “thinking of the child” and ready to make sure you are convicted.  Many are run by folks that were harmed as children and cannot see that you could be innocent, whether sexual assault on a child, child pornography, child abuse, child death, SIDS, shaken baby or other false allegations.  Sadly, there are few groups concerned with making sure the science and other evidence is the truth.  NCADRC is one.  I went to this conference because I want to make sure the truth is told in court.

I love this conference because it focuses on science.  Nearly all of the presenters were experts in their field.  They present their argument and support it with the peer reviewed, scientific publications that show the truth.  And, we get the articles to read for ourselves.  A scientist expert is one part of the criminal defense of child abuse and sexual assault on a child.

FALSE CONFESSIONS

I enjoyed learning from Dr. Richard Ofsche on False Confessions.  I had seen him testify as an expert in a Colorado Springs homicide trial when I was a young public defender about 20 years ago.  He shows how police can make a person feel that the only way to avoid a lengthy prison sentence or the death penalty is to confess, even if you did not do it.  The popular documentary Making a Murderer shows Brendan Dassey’s “confession,” and it seems to have all the hallmarks of Dr. Ofsche’s presentation.  The Central Park Five “confessions” exhibit the same pressures and police lies.  The police present false and misleading evidence to get a confession, regardless of any actual evidence.  They break down all defenses to the crime, often using “evidence” they know is false.  Helplessness is the goal.  Once a person is helpless, they will do just about anything.  Much of this is taught to all police officers in Reid Method training, but usually not by Reid certified trainers.  I own "Criminal Interrogation and Confessions" by Inbau, Reid, Buckley and Jayne, as well as the response by Ofsche.  The first time I read it, I could not believe how closely it mirrored most of the interrogations I had in my cases.  How do innocent people end up in prison, false confessions obtained by poorly trained police (and snitch testimony).

In most criminal defense cases, including child abuse and child sex assault, the police want a confession because they know the science is lacking and these cases can turn on the word of a child.  A confession, even a false one, will convict many.  If the police are asking you questions, it usually means their case lacks something that they can solve with your statement.  Just say, I want a lawyer and nothing else.

If you are innocent, you need a criminal defense lawyer trained in spotting and fighting false confessions.  I will listen and help you show the truth.

CHILD ADVOCACY CENTERS AND FORENSIC INTERVIEWS

In any case where a child is a victim, the police will arrange a forensic interview at a child advocacy center.  Nearly every sexual assault on a child or child abuse case will have a forensic interview of the child.  I have studied these interviews and the proper protocol for over 20 years.  I have seen very few forensic interviews where the protocol was followed.  This conference added to my knowledge.

Good interviews can get accurate information from children.  Bad interviews put innocent people in prison.  A proper forensic interview of a child, following the accepted protocols, will often get the most accurate information.  Studies show forensic interviewers will revert to bad habits within weeks of training and correction.  If the child has been coached, or more likely, inadvertently suggested that certain things are true when they are not, a biased forensic interview will not show it.  Too many forensic interviewers believe abuse prior to the interview and fail to properly explore coaching, suggestion or contamination.  The reason for an unbiased investigation is to ferret out the ways innocent people get accused.  At the October 17, 2019 NCADRC conference, Dr. Michael Lamb and Dr. Kamala London discussed forensic interviews, and the science behind them.  While I support Blue Sky Bridge and other organizations that help abused children, my experience shows that they can do better.  I can spot their errors in interviewing. 

If you are innocent of sexual assault on child or child abuse, and a child has told a forensic interviewer that you are guilty, you need a criminal defense attorney that knows the science of forensic interviews.  You need a lawyer that will listen to you, and help you win.  I will.

SEXUAL ASSAULT NURSE EXAMINERS AND PHYSICAL EVIDENCE OF SEXUAL ABUSE

Wow, what I learned that I did not know.  Sexual Assault Nurse Examiners (SANE) collect evidence when a person comes to the hospital after a claimed sexual assault, whether it is date rape, rape, sexual assault, sexual assault on a child or any other form of sex crime.  The evidence is often inconclusive of anything.  But, the Sexual Assault Nurse Examiner always seems to want to testify that it is consistent with a crime.  The NCADRC taught me a lot of about the injuries they claim show a crime.  The truth is peer reviewed, published, scientific articles show much of this “evidence” is common in all people, and common in consensual sex.  Sure, it is consistent with a crime, but it is not inconsistent with innocence.  The evidence does not disprove innocence to any degree of medical certainty, let alone beyond a reasonable doubt.  Dr. Steve Guertin reviewed the relevant studies to help us better understand what the SANE evidence actually means. 

If you are accused of a sex crime like sexual assault or rape, you need a criminal defense attorney that knows the truth about SANE evidence.  You need someone that can help the jury see that truth (the prosecutor never will).  I will listen to you and we will find a way to not guilty.

METABOLIC BONE DISEASE AND FALSE ALLEGATIONS OF CHILD ABUSE

Dr. Marvin Miller presented on bone diseases that can appear, to many doctors, as if it were child abuse.  Medicine has many answers, but each individual is different.  Each case must be reviewed individually to make sure the truth comes out.  Often times, a biased investigation, sometimes with an inadequately experienced, or even biased doctor, will result in felony child abuse charges where a person is completely innocent.  There are often injuries to a baby in child-birth that are never known, including broken bones.  A year or two later, an X-Ray is done which shows healed fractures and this is used to suggest long term abuse.  The truth is it occurred in normal child-birth.  And it is common – so common that many babies have the same injury and no one will ever know it, unless they go to the hospital after an innocent fall and the wrong doctor calls it child abuse.  Dr. Miller showed us how this happens and what to do about.  I will never be fully competent to examine an X-Ray, but he shows things that anyone can see that prove innocence.  I learned what to look for, and to make sure someone that knows the science looks at the evidence before even considering a plea. 

Has your criminal defense lawyer said you have to plea even though you are innocent?  Do you want someone that will listen to you and find a way to show the truth?  Let’s talk. 

CHILD PORNOGRAPHY – WHY?

How does a person go from an average upbringing and sexual experiences to viewing child pornography?  There are reasons.  Dr. Kevin McGovern and Dr. Thomas Brewer presented their studies on how this happens.  Porn addiction is a big reason, and as with any addiction, there is often a source of addiction other than porn.  They exposed myths of those that have viewed child porn, including the common fear that all will eventually perpetrate on a child and that they cannot stop – most never will touch a child.  Sadly, there seems to be a connection between the isolation resulting from trauma and viewing child porn – our soldiers with post-traumatic stress disorder (PTSD) sometimes find themselves in this trouble.  [Anyone with trauma can get here, and MOST soldiers will never find themselves in this spot.]  Proper PTSD treatment may have avoided this result.  If you are getting deep into porn, get some help before you keep looking for a new thrill from the taboo. 

If you have been accused of child porn, you need a criminal defense lawyer that can fight the computer evidence and, if guilty, fight for a reduced sentence.

SHAKEN BABY SYNDROME

This was one of my most anticipated presentations at the NCADRC conference.  Dr. Waney Squire spoke about Shaken Baby Syndrome and destroyed it.  It is not that a baby cannot be shaken and harmed, this happens.  It is that the science that has put many people in prison is faulty. 

Dr. Squire exposed the truth and paid the price of losing her medical license.  She then won it back by showing she was right all along.  In the beginning, doctors were studying the symptoms of a class of baby deaths.  A doctor, almost offhandedly, suggested this could be the result of shaking the baby.  Others heard this suggestion, and the syndrome was born.  Years later, this same doctor revisited his shaking suggestion and was appalled that he was responsible for so much faulty “science.”  He fought against the faulty science.  The triad of symptoms that only occur in shaken babies?  Well, that is a myth – two of the three are common in babies.  The third can come from sources other than child abuse, other than shaking a baby.  The truth is there is no triad proving shaken baby syndrome. 

If you are falsely accused of shaken baby, lets talk.  You are going through a tragedy and a biased investigation is accusing you or your family member.  You need a criminal defense lawyer that will listen and find a way to show the truth.  It starts by listening to you, and not simply believing the police.

CHILD ABUSE PATHOLOGY – THE AUTOPSY

No one wants to be a pathologist in this country.  Most doctors spend very little time learning this field, and even the board-certified pathologists often have very little experience, less than 25-50 death examinations.  Almost no pathologists have experience with a child death, let alone are experts.  Dr. Kris Sperry has that experience.  He laments that the crisis of having too few pathologists is causing people to go to prison wrongly.  This presentation was designed to help criminal defense lawyers to know what to look for in the autopsy so we can decide if we need an independent pathology expert.  I learned a lot.  I already knew it starts with listening to you and working to find the truth of your case. 

If your child has died and the police are investigating, you need a lawyer that can help prevent charges.  If you have been charged with child homicide, you need a criminal defense lawyer that can fight and win. 

DNA

I have learned about DNA at various conferences over the years.  It affects numerous cases, but especially sexual assault, rape, and sexual assault on a child.  I even have a hit and run case with DNA on an airbag.  Touch DNA has changed the way we view all evidence – it allows very little DNA to be discovered.  But it also means that any contact or contact with something in contact with you, can put your DNA at a location – it’s so powerful, it almost makes DNA meaningless. 

Dr. Greg Hampikian of the Idaho Innocence Project expanded my knowledge of the science, but also how inclusions and exclusions happen.  The meaning of the DNA evidence can be more complex than CSI leads us to believe.  It is always to learn more about this every changing field. 

If the police say they found your DNA, or are asking you to submit to a DNA Swab, you need a criminal defense lawyer that knows DNA.  I do.  Collection, type of DNA, contamination, multiple donors, and more affect the meaning of DNA evidence.  I will listen to you and we will find the proof of your innocence.  I do not accept the police investigation at face value.  I will expose its weakness and show the truth. 

 There is a lot to say about this case.  If the roles were reversed, Mr. Botham Jean would probably face the death penalty for shooting a white, female cop in her apartment.  Heck, the only reason anyone considered the defense at all is that she was a police officer.  If it were two citizens, the accident would not have been much of a consideration.  And it would not have made the news.  It is also unlikely a citizen would have been so quick to shoot and kill.

This is a tragedy no matter what.  Mr. Jean and his family would suffer regardless of the trial result and sentence.  Convictions do not cure pain.  Closure does not come in the courtroom.  (There will be appeals, too.)  Dealing with the pain of losing someone, or the pain of being a victim of a violent crime or sexual crime takes more than any court can give.  I recommend therapy.  If anyone promises you closure through a conviction, they are lying to you and they know it and you should seek other sources for your healing.

As a person tired of seeing police shoot black and brown people (and poor white people), and people with mental disabilities, I am happy for any conviction of a police officer.  Some might say this is a form of lynching.  I hope officers work to avoid shootings.  Police need training on de-escalation and ways to avoid shooting/killing.  They need to be trained on how to distinguish true life and death situations from the other 99.99% of situations in the world.  The true perpetrator was bad training leading to bad thinking. 

As a criminal defense attorney, I hear people say the castle doctrine or self-defense should not be allowed to be argued to a jury.  This I cannot abide.  Self-defense in all its forms is a protection for the individual when the government tries to second guess decisions, tough ones, that result in harm.  When the press is involved, prosecutors start thinking like politicians and stop caring about the facts as much as a future election.  Justice is not found in the press.  The press is about selling papers.  The press will make the facts seem a certain way to get more eyeballs, more clicks, more advertising dollars.  Politician prosecutors will think their name and photograph means they can go to Congress or the Senate or maybe even President.  But, at least they become a judge. 

In Colorado, self-defense is allowed to be argued even if there is only a scintilla of evidence.  Very small.  A judge excludes the defense only very rarely because they know the appellate courts will overturn the conviction.  The law is designed to allow a citizen accused of a crime to present their defense.  It is up to the jury to decide if the defense is viable.  I believe in this theory.  And, in the case, it appears the jury found the defense to be lacking.  In another case, they might say this defense was viable.  I am not in favor of limiting self-defense, a right of the people.  I favor the wisdom of the jury that sees and hears all the evidence.

Colorado has a make my day law that allows a judge to dismiss cases where the person is defending themselves, their family, or guests from intruders.  The defense can also be argued to a jury if the judge does not dismiss.  The basic tenants of self-defense are that you reasonably believe you are facing danger and that your response is reasonable to stop or prevent the danger you face.  The greater the danger, the greater the force you can use to prevent it. 

While I hope I never have to use force against a person, if I do need to, I want self-defense to be a strong, fully developed personal right so I do not get convicted for protecting myself or my people.  These rights may not be perfectly applied or argued, but when we need them, I want them there.  Most of the time, a jury will do the right thing.

I have read about police officers saying it is illegal for a suspect or witness to record their contact with police, or for a bystander to record police contact with others.  I have threatened with jail myself when I attempted to do this a few years ago.  I have seen in police reports that officers confiscate telephones used to record, throw them or destroy them.  This is illegal.  In the state of Colorado, you are allowed to record an incident involving a police officer.  Colorado Revised Statutes §16-3-311 is the law specifically allowing this.  It is reproduced in full below. 

As a practical matter, I suggest not telling the police you are recording them.  If they were going to act in a bad manner, they will change their ways.  If they want to violate the law, they will destroy your phone.  Just start recording as you see the emergency lights behind you or when you see them approaching.  Video will be difficult, but the audio should be easy.  If you can, but the phone with the microphones pointed up towards your face in a pocket that allows the microphones to be exposed.

Remember to be polite, not to incriminate yourself, and to assert your rights not to talk, to have an attorney, and not to be searched without a warrant.  Then, do not answer any questions other than identifying information. 

If it’s a DUI, refuse all Roadside tests “because your lawyer told you Roadsides are BS.” Once arrested for DUI, choose a blood test for accuracy, and only refuse if you are certain to have a very high number.  See my website for more information.

Do not argue with police about what is legal or not.  It serves no purpose.  The place to discuss the legality of any police action is in Court with a lawyer, not on the street alone with a police officer that can use his authority to make your life difficult.  Just wait, the joy will be much better when we win.

BTW – recording a conversation you are not a part of, meaning you are not present for and/or the speakers cannot see you know you could hear them, is the crime of eavesdropping.  You can record any conversation you are a participant in, or that the participants would believe you could hear (think – a conversation at the next table at a restaurant or bar).

C.R.S.A. § 16-3-311

  • 16-3-311. Peace officer incident recordings

Currentness

(1) A person has the right to lawfully record any incident involving a peace officer and to maintain custody and control of that recording and the device used to record the recording. A peace officer shall not seize a recording or recording device without consent, without a search warrant or subpoena, or without a lawful exception to the warrant requirement.

(2)(a) If a peace officer seeks to obtain from a person a device used to record an incident involving a peace officer in order to access the recording as possible evidence in an investigation, the officer shall first:

(I) Advise the person of his or her name, his or her badge number or another identifying number, and the name of the law enforcement agency;

(II) Identify the legal reason for which the information is requested; and

(III) If practicable under the circumstances, inquire whether the person will voluntarily provide the officer with a copy of the specific recording that is relevant to the investigation either by voluntarily providing the device to the officer or immediately electronically transferring the information to the officer or the law enforcement agency so that the person may retain possession of his or her device, the recording, and any personal non-evidentiary private information contained on the device.

(b) If the person consents voluntarily to the transfer of the device to law enforcement, the peace officer shall limit his or her search of the device to a search for the recording that is relevant evidence to the investigation, and the device shall be returned to the person upon request and with all convenient speed.

(c) If the person consents to an electronic transfer of the recording, the electronic transfer shall take place as soon as possible and without unnecessary delay.

(d) In circumstances when the immediate electronic transfer is not practicable or if the person does not consent to the electronic transfer of the evidentiary information or to the seizure of the device, the peace officer may arrange for the transfer or delivery of the information or device with the person to the peace officer or to the law enforcement agency by any alternative means consistent with any policies and procedures of the law enforcement agency.

(e) Notwithstanding the provisions of this section, a peace officer has the authority to temporarily seize and maintain control over a device that was used to record an incident involving a peace officer for no longer than seventy-two hours to obtain a search warrant when exigent circumstances exist such that the peace officer believes it is necessary to save a life or when the peace officer has a reasonable, articulable, good-faith belief that seizure of the device is necessary to prevent the destruction of the evidentiary recording while a warrant is obtained.

(3) The provisions of this section do not apply to devices seized incident to arrest.

(4) Nothing in this section shall be construed to allow a person to interfere with a peace officer in the lawful performance of his or her duties.

Credits

Added by Laws 2015, Ch. 212, § 2, eff. May 20, 2016.

  1. R. S. A. § 16-3-311, CO ST § 16-3-311

Current through legislation effective Sept. 1, 2019, of the 2019 Regular Session. Some statute sections may be more current. See credits for details.