I started learning to surf a year ago. I plan to schedule a trip after each significant trial. This trip was set after a trial, but it was continued to September. My goals were to have a quicker, smoother pop and to immediately turn onto the wave, riding the face down the line.
While traveling, I read Allan Weisbecker’s In Search of Captain Zero: A Surfer’s Road Trip Beyond the End of the Road and started William Finnegan’s Barbarian Days: A Surfing Life. These are both wonderful books for the surfer. I am looking for more. Weisbecker’s descriptions of his dog made me miss the pup I left at Pet Camp in Golden. How can I bring my pup?
When I arrived, I felt strong, albeit a little fat, from a few weeks of swimming laps and dirt biking. The first week, I enjoyed just being in the water and trying to get my timing. I felt great with no pain, but no improvement either, riding directly down the face and stalling before the wave caught me again. The second week, I took lessons at Witches Rock Surf Camp – my second visit. In the first lesson, I was so frustrated that I overcooked my arms. I woke with elbow tendonitis and shoulder pain. I did my best, remembering a famous football coach who told a player, you aren’t injured, that is just pain. Advil helped some.
If I could not ride as much as I wanted, I could still learn how to read the waves better, deciphering close outs, lefts and rights, and where it will break first. I watched others and tried to emulate them. Pain made me slow and weak and tentative. Baby steps. As each day passed, I got better, even if it was hard to see. On the Wednesday, I finally started quickly popping up and turning immediately, even if it was unbalanced and sometimes the wrong way. Confidence grew.
The following day, I worked on what I had started to feel. Feel is what they all say – you have to feel it. The words are just markers for the feel. You search the words for how, but until you feel, you do not know. I caught many waves early on, with a smooth turn away from the break. On one wave, I turned the wrong way, into the break, and immediately changed direction to the face. Confidence, excitement, progress. I got so confident that I stopped thinking and forgot to turn, regressing. Taking stock, I focused on my turn again. The rest of the day I did it right.
The last day. I woke ready to go. The teens from San Diego seemed sleepy on the bus. One of the group did not show at all. I paddled out with my tendonitis dulled by ibuprofen. Lots of waves, turning to the face, slight cut backs and then into it again. This is long boarding. I was not trying to ride the nose, just turning. I am sure I missed some, but I do not remember those. After a short water break, I went back out. The older SD teen, crushing a short board with cut backs, riding the crest and cool drops, had just rode a nice one. I took the next, catching it perfect, smooth, balanced. It was a left, about shoulder high. My best yet. As I move on the face, a little up and a little down, I see the teen ahead. He is paddling out. I am headed right for him. His face is excited, no fear. As much fun as I am having, I do not want to run him over. So, I do what feels natural. A hard cut to the left, rear foot planted, toe side rail deep into the wave, avoiding the kid, I go perpendicular to the wave, right over the top.
A good surfer would have turned right immediately after the cut, missing the teen, and continued down the line. I am not a good surfer. I hope the next time I do that. That cut was my best ever. It was hard and clean. I care not that the ride was over. Next time. It was fun. As my head bobbed above water, SD teen complimented my ride – his first real words to me in a week. Acceptance.
In the next 30 minutes, my group headed in, getting ready for the bus ride back. I did not. It was my last day and I did not know when I would get to go again. Despite being older than anyone by decades, I was the last out of the water. I do not remember any other good waves. My arms were screaming. I just did not want to get out of the leave.
A few years ago, I was appointed to represent a man that lives in the Western, Mountainous, and Remote area of Boulder County on a charge of Felony Menacing. The prosecution says that my client threatened a temporary census worker with a gun.
My client was standing on his porch when the person passed 4 no trespassing and private property signs to get to his home. He was asked to leave politely. The person did not identify as a census worker. The person appeared to be casing the vacant homes on the property. And, the gun was specifically pointed in the opposite direction of the trespasser. My client’s home has marks on the outside where bears have tried to break in. He keeps a gun close by when he is outside due to the bear activity. He also knows that it takes a minimum of 20 minutes for the police to arrive at his home. If he is facing an attack, he must defend himself. He never said the trespasser was attacking, but he was concerned that the person was on the property, refusing to leave and rude. My client simply watched and kept the gun nearby for protection.
This case went to trial. The prosecutor would not dismiss when it is a clear case of self-defense and defense of property to stand on your own porch, hold a gun, and ask someone to leave your property. I suspect the prosecutor was hoping a Boulder jury would not like that my client owned and possessed a gun, an AK-47 style rifle at that. I suspect they were hoping the jury would be so scared that they would convict, despite the law. The jury did their job correctly and acquitted.
With the affirmative defense of self-defense, the prosecution must disprove that my client was acting in self-defense beyond a reasonable doubt. They raised their voices and called my client’s lawfully possessed guns an “arsenal.” Only one gun was ever seen by the complaining witness, so why did the judge allow the rest of the guns into evidence? Two of the 5 guns were old and not operational. The client kept them because they were passed down by his grandfather. They tried to use emotion to get the jury to hate my client and convict him when he was simply standing on his own porch asking someone to leave his property while in possession of a gun. That is not a crime, not even close.
In Colorado, the state constitution provides:
Article II, § 13 of the Colorado Constitution provides that “[t]he right of no person to keep and bear arms in defense of his home, person and property, or in aid of the civil power when thereto legally summoned, shall be called in question, but nothing herein contained shall be construed to justify the practice of carrying concealed weapons.”
Despite this clear language that is directly related to the defense of this case, the prosecution objected to me putting this amendment into evidence, as a jury instruction nor even arguing it in closing. The judge, insensibly, agreed with the prosecution, stating that it was not relevant. It is hard for me to understand what could be more relevant than the founding document of our state supporting my client in defending himself and his property. Fortunately, jurors can see when a trial does not seem fair.
A few months later, I was at a party and a man approached me. He was the foreperson of this jury. He told me that when he got home after the first day, being selected as a jury member and hearing opening only, he got very ill. He likely had food poisoning. His wife tried to convince him to call in sick and get off the jury. This gentleman responded, “if do not go back and I find out that man was convicted, I will not be able to live with myself.”
Neither the foreperson nor most of the rest of the jury was gun people. They were not members of the rocky mountain gun owners (RMGO) nor the national rifle association (NRA). They were not comfortable with firearms. But, they were willing to follow the law on self-defense and defense of property. They were not going to punish my client for exercising a right that they themselves did not choose to exercise. Just like any trial, choosing the jury is very important.
A few years ago, I was appointed by the court to represent a woman accused of possession with intent to sell drugs and distribution of drugs in Longmont. My client had lots of contacts with the criminal justice system. The Longmont Drug Taskforce was watching her and a few people she lived with. They wanted to get her bad. She had previously beat a drug charge at trial in Weld county. We suspect someone in the house was working with the Longmont Drug Taskforce because someone left the house at about 530AM and SWAT busted in about 6 AM.
Yes, SWAT. There were about 30 police, a fire truck, hazmat, etc. The house looked like the house in ET The Extraterrestrial after the government came in. They spent many hours and 1000s of dollars on this raid.
In the end, they found a little marijuana, some baggies, a small ledger, and one bindle of methamphetamine. All that time/money and they get one tiny, single-serving size, a bag of meth. Egg on the face, embarrassed, the Longmont Task Force felt stupid. They did everything they could to charge her with as much as possible to justify this expensive, embarrassing raid. Some of what they did was a lie.
My biggest problem in the case was that the bindle of meth was found in my client’s underwear drawer, on top of her checkbook. This is what is known as a bad fact. At trial, I wanted to make sure the jury understood that proximity does not equal possession. Possession must be knowing and must be proven beyond a reasonable doubt. To possess drugs, or anything else, you must know you have it. Prior to jury selection, I placed a bindle of fake drugs between the cushion and armrest of a juror’s chair. No one knew it was there but me. When discussing this issue, I asked the juror if he possessed meth. He said no. I asked him to look in his chair. When he did, he pulled out the bindle and showed it to the room. It was a clear example of the knowledge requirement of possession. This gave the jury the lens with which to see the case, but we need much more.
During the testimony, several Longmont Police and Drug Task Force members testified. These are seasoned detectives tasked to root out meth and meth dealers. I was able to show that their reports showed the unused baggies were different colors in different reports and were found in different rooms. We showed how their evidence collection system did not mesh with the police reports. There were other issues as well. One of the detectives was very honest and hurt the police case. We showed sloppiness, if not outright lies. The basic argument is that with a sloppy (or worse) investigation like this, can we be sure the bindle of meth was actually found in the client’s underwear drawer on top of her checkbook? Is it possible the likely snitch put it there for the police to find? Were the police so embarrassed at finding nothing that they cooked up the evidence a little?
The jury found my client not guilty. Afterward, they asked to speak with me. After thanking them, I listened. The jury all believed my client was a drug user and dealer. They made me promise to try to get her to get help. (I tried, but I do not know how much she did.) They told me that they found her not guilty because the police failed to do their job correctly and therefore they did not trust the investigation beyond a reasonable doubt. The jury fully believed my client guilty, just not enough to convict.
I hope that police and prosecutors learn from these cases. If they do their job correctly, they get convictions, as they should. If they do not, the community is not being served. If not, we waste money on police and trials.
I am proud of this jury for coming to this result. It is not easy for a juror to tell the police and prosecution to do better, especially when they believe a person guilty. I am proud because if my client were found guilty, the only lesson the police learn is that they can get away with sloppy work. There are many reasons for the jury system and for the prosecution burden of proof beyond a reasonable doubt. The most important is to protect the innocent. Another important reason is for the community to tell the government whether they are doing their job correctly. If you do not trust the investigation as neutral, unbiased, and complete, a not guilty verdict is appropriate. If you do not trust the investigation due to sloppiness or possible lying, then the only appropriate verdict is not guilty. If the prosecution does not foreclose all reasonable possibility that my client is innocent, then the verdict is not guilty. It is our job, mine to show it to the jurors, and theirs to act, to correct bad investigation. Anything less is sanctioning poor police work. Poor police work results in innocent people convicted and imprisoned.
Self-defense is a very common defense in domestic violence and charges of assault, menacing, harassment, homicide, or murder. Self-defense is often misunderstood. The statutes can be found at Colorado Revised Statutes §18-1-704 “Use of Force in defense of a person,” and §18-1-704.5 “Use of Deadly Force against an intruder,” also known as “Make My Day.” There are other affirmative defenses for these charges found at §18-1-703 “Use of Physical Force – Special Relationships” that include using force to maintain the discipline of a minor (child) or incompetent person, common carrier, suicide, physician. Force can be used to defend premises or property from intrusion, destruction or theft, or even in citizens’ arrest.
Self-defense and all force defenses tend to require a reasonable belief of imminent force or other provoking circumstances. This belief is subjective, meaning reasonableness is to be determined by someone in your circumstances, not objectively. So, if you are awakened in the middle of the night, at your home, and you are intoxicated, the jury must view your fear of harm from that perspective.
The response to the imminent force must be reasonable to end the threat of force. This means that a fear that someone will shoot a spit wad from a straw at ten feet does not justify shooting them with a gun. A slap across the face would probably be justified. If the spit wad was shot and the person was holding an actual gun and in some way threatening with it, then the amount of force to respond to the reasonable threat of being shot is much greater.
Another way to look at it is that if you are in a bar fight and you are now winning, you have to look at stopping. You cannot continue to pummel a helpless person. If you do pause, and the assailant rallies, trying to punch you, it justifies further force. Multiple assailants justify greater force.
The initial aggressor is a very important aspect of self-defense. If you start the fight, you will have trouble prevailing on self-defense. If the other person threatens and uses words to start the fight, but you punch first, you are likely OK. If on the other hand, you create the situation and take it from strangers or friends towards a fight, you are the initial aggressor and cannot claim self-defense unless, you retreat and withdraw, and the other person will not stop. This is tricky to prove. You should be on camera moving away, with your hands up, saying I do not want to fight, let's end this, I am done, and likely the person is following you, continuing to strike and threaten and refusing to stop. The more evidence of that, the better case for you.
In Colorado, you are not required to retreat to the wall or even retreat at all, we are essentially a stand your ground state. But, a jury determines the reasonableness of your actions and some jurors will not like that you quickly use force. As a human, I advise against using force unless you have to. As a criminal defense attorney, I know the law allows it and I feel strongly in protecting your statutory rights to live a life free of threats and violence. The better case has evidence that you acted reasonably, as well as within your rights.
Colorado’s Make My Day law allows deadly force when an intruder is in your home and you reasonably believe they will harm you or someone in your home. It also allows deadly force where you reasonably believe the intruder has committed a crime, is committing a crime, or is about to commit a crime, in addition to the unlawful entry. If the person enters the home lawfully and refuses to leave, it is unlikely that this statute applies. If the person is leaving, it is unlikely that the statute applies. This cannot be an automatic response, it must be a human making the decision, so any trap gun is not allowed. Make My Day is an immunity statute, meaning that it is argued to a judge and if the court finds the statute is met, then the charges are dismissed without a trial. If the judge does not find the statute has been met, then it can be argued to a jury, much like self-defense. This is greater protection than normal self-defense in that the jury does not have to believe it is reasonable that you believed “a lesser degree of force is inadequate” and reasonable belief a person may be killed or seriously injured OR occupant of dwelling or business during a burglary, OR reasonably belief of kidnapping – sexual assault – robbery – or assault.
No matter the type of defense, there is nothing you can tell the police today that you cannot say tomorrow with an attorney – just say, “I want a lawyer” and nothing else. This is especially true if someone is seriously injured or dead. No lawyer wants you to explain to the police why you should get self-defense or any other defense. If the police cannot see it by the time they talk to you, then they likely will not see it after they talk to you. Meaning, they are looking at you as a defendant, not a victim. Be quiet, and know your lawyer will help you tell your story. The prosecution cannot use your silence against you at trial unless you start talking and then stop. No matter when you realize you should not be talking to the police, just say, “I want a lawyer.”
As a criminal defense attorney in Colorado, I have investigated and argued self-defense, defense of property, defense of premises, and make my day for over 20 years. I know how to help you tell the true story of your innocence. I know how to find support for it. I know if and how to present it to a prosecutor for a deal or dismissal. And, I have won on these defenses numerous times. I have won gun cases in Boulder county, even though many of the jurors do not own guns and do not like guns. It is best to never need these defenses, but then, it is better to be judged by 12 than carried by 6.
In Colorado, there is a statute that says if a police officer has probable cause of domestic violence (DV) offense, then s/he must arrest the person and bring them to jail. CRS 18-6-803.6(1); see also 16-3-105(1.5) and 18-6-800.3(1). This law has been interpreted to mean that if the police are called in on a domestic violence complaint, then someone has to go to jail. Usually, this is the person who did not call the police (race to the 911 call), the person least injured or the man.
Another reading is that if the evidence is equivocal, then there is not probable cause and no one should go to jail. Police can separate the parties and provide contact information if further contact ensues. A report can be made to the prosecutor and they can decide whether to move forward with charges.
The statute allows provide police with factors to determine who should be arrested when the evidence is not clear: 1) prior complaints of DV, 2) relative severity of injuries, 3) likelihood of future injuries to each person, 4) the possibility that one of the people acted in self-defense. CRS 18-6-803.6(2).
Domestic violence charges have many collateral consequences, like loss of gun privileges, difficulty leasing an apartment, difficulty getting a job, and public shaming. These cases can result in deportation for non-citizens.
Domestic violence is defined in the Colorado Revised Statutes (18-6-800.3(1))as:
- “an act or threatened act of violence upon a person with whom the actor is or has been in an intimate relationship.”
- The intimate relationship includes a spouse, former spouse, past or present unmarried couples, or persons who are both the parents of the same child regardless of whether the persons have been married or have lived together at any time. CRS 18-6-800.3(2)
- this has been interpreted to mean any two people that have been intimate with each other, certainly any sexual relationship, but also any relationship that involved any level of sexual relations, including kissing.
- In People v. Disher, 224 P.3d 254 (Colo. 2010), the Court found there were 3 factors to determine intimate relationship: 1) length of the relationship, 2) nature of the relationship, 3) frequency of interaction of the parties. This means that a one night stand, followed weeks or months later, by a crime that otherwise fits, is not a domestic violence crime.
- “domestic violence includes any other crime against a person or against property, including an animal, or any municipal ordinance violation against a person, or against property, including an animal”
- The property portion of this means the theft or destruction of any property, even your own. Many years ago, an Avalanche goalie won his DV charges because he busted a door in the family home, but did not hurt anyone. The statute was changed shortly after.
- Harming a person’s pet or the family pet can be domestic violence.
- Breaking a phone will be charged both as DV criminal mischief and/ or DV Disruption of Telephone, basically preventing a person from calling 911.
- “when used as a method of coercion, control, punishment, intimidation, or revenge directed against a person with whom the actor is or has been involved in an intimate relationship.”
- This section is very important to establish Domestic Violence and is often overlooked.
- There are cases where at first look, it appears to fit in the domestic violence statute, but the proof does not establish the act was done for coercion, control, punishment, or revenge, but instead for a different reason.
- It is arguable that the language of this section establishes a specific intent element for coercion, control, punishment, or revenge. It does not appear this has been litigated. Voluntary intoxication is a defense to specific intent crimes.
As with any crime, there are defenses to domestic violence acts or threats. Self-defense, defense of others, defense of property, and provocation can be affirmative defenses to the charges. This means that if there is any evidence to support the defense and proper notice is given, then the prosecution must disprove the defense beyond a reasonable doubt.
I have represented numerous, if not thousands of people on domestic violence charges in Boulder, Broomfield, Longmont, Adams County, Jefferson County, Denver, Larimer County, Colorado Springs, Gilpin County, Eagle County, and throughout Colorado. I will work with you to learn what happened, find any defenses, investigate to determine the truth and the value of the prosecution case, and present the case at trial the best way possible. I have worked out many valuable plea bargains, argued for and won dismissals, and tried cases to juries with excellent results.
It does not matter if you were arrested because the police thought someone had to go to jail. We will find the best way through the mess. Beware of the deferred sentence deal on your first DV case, it is often the worst thing you can do, especially when you are innocent.
No matter the facts, I recommend that you say nothing to the police without a lawyer. Just say, “I want a lawyer.” Remember, there is nothing you can say to the police today, that you cannot tell them tomorrow with a lawyer.
College Students Accused of Sexual Assault Entitled to Due Process in Disciplinary Proceedings, Says Sixth Circuit
False allegations of sexual assault are life-changing for the accused. They face felony criminal charges, the potential for years of their life in prison, loss of employment, loss of friends, ridicule in the community – and that is often based on the allegation alone.
University students falsely accused of sexual assault often face another layer of difficulty. When a report of sexual assault is made on campus, the accused is often investigated both by the police and by the university; specifically, the university’s Title IX office. Even if criminal charges are never brought, the accused student is subject to disciplinary proceedings through the university, and navigating that process can be incredibly difficult.
University disciplinary proceedings don’t have the same protections as a criminal jury trial. Students often are not allowed to have an attorney represent them at the hearing. They are not allowed to confront their accuser, to engage in cross-examination, or present testimony from their own witnesses. Any statements made at the disciplinary proceedings can be used against the student in a criminal trial. The standard of proof is frequently a preponderance of the evidence standard, meaning that the disciplinary committee deciding the student’s case has to find only that it is more likely than not that the student violated the university’s code of conduct. Compared to the standard of proof at a criminal trial, beyond a reasonable doubt, the accused faces an uphill battle.
The Sixth Circuit Court of Appeals recently held, however, that students facing suspension or expulsion from a university based on sex assault allegations which required the university to make a credibility determination (he said/she said case) are entitled to additional due process in confronting their accuser through cross-examination. John Doe v University of Cincinnati (UC), et al. provides for a version of cross-examination of the accuser in cases where the accused is denying the conduct described by the accuser.
Confrontation of one’s accuser is an important trial right. However, in university disciplinary proceedings, the ability to confront one’s accuser is often non-existent. In Doe v UC, the university provided for some cross-examination of the accuser through written questions submitted to the disciplinary committee ahead of the accuser’s testimony, per their policy. However, UC’s policy did not require the accuser to attend the disciplinary hearing. Therefore, if the accuser chose not to show up at the disciplinary hearing, any mechanism for questioning the accuser was lost.
That’s precisely what happened to John Doe. His accuser failed to appear at the hearing, and the disciplinary committee relied upon the accuser’s statements to university investigators to make a determination that John Doe was responsible for a sexual assault that he denied committing. Even though the disciplinary committee was not able to hear directly from the accuser, and despite being unable to present the accuser with the proposed written questions from the accused, the university made the decision to find John Doe responsible, and suspended John Doe for two years.
Situations like that in Doe v UC happen far too frequently. Students are falsely accused of sexual assault, and there are severe consequences. Even when students win their separate criminal cases, the consequences imposed by the university disciplinary committee often change the course of these students’ lives. The students have to put their schooling on hold. They can’t transfer to another school because of the disciplinary history. They struggle to find employment, because they have to explain why they haven’t finished school. Even when they are able to return to school after a suspension, it leaves them with a hole in their resume that they forever have to try to explain to employers. They often are not permitted to live on campus, increasing the expense of continuing to attend school. A student’s future that may have once held a promising career often turns into a struggle to simply maintain any employment at all.
The Sixth Circuit, in Doe v UC, held that John Doe, when he was denied any opportunity to cross-examine his accuser in the disciplinary proceedings, did not receive sufficient due process such that the university could be justified in issuing a suspension.
While the court found that cross-examination of the accuser is not always required in university disciplinary hearings, due process requires that some form of cross-examination and confrontation of the accuser must be permitted in a case where credibility of the accuser and the accused is a key issue in the hearing. Further, the more serious the possible discipline, the more due process is required.
So, what does this mean for those currently facing sexual assault allegations in a university setting?
First, if a student is accused of sexual assault at a college or university, he or she needs to hire a lawyer. One, anything said to university investigators or to the disciplinary committee can be used to bring criminal charges against the student, in addition to the disciplinary proceedings. The disciplinary proceedings need to be carefully navigated by the student to try to prevent discipline from the school, while still protecting themselves from criminal prosecution. Also, the accused student will need assistance in ensuring that the university provides them with the maximum due process available. While the university rules may not permit a lawyer to represent an accused student at a disciplinary proceeding, the lawyer can still guide the student through the process, and help the student formulate cross-examination questions that can be submitted to the accuser. If the student is disciplined by the university, his or her attorney can seek relief in federal court when the university has failed to provide the accused student with sufficient due process.
While students accused of sexual assault face a very difficult battle, the courts are beginning to recognize that the schools cannot take away a young person’s education without providing them with a genuine opportunity to defend themselves.
