Tag Archives: prosecution

Supreme Court Delivers 2 Body Blows to Criminal Suspects

The U.S. Supreme Court recently issued two important decisions for criminal defendants. The Supreme Court (1) limited the constitutional protections of the Fourth Amendment that prohibits “unreasonable searches and seizures,” and (2) denied defendants the opportunity to contest seizure of assets intended to pay for their criminal defense attorney’s fees.

First, in Fernandez v. California, the Supreme Court ruled that police can enter and search a house without a warrant if one resident consents and any objecting residents are no longer present.  Previously, the Court held in Georgia v. Randolph that the police could not search a house when one resident objected. The Court clarified that “presence” of an objecting occupant triggers the protections of Randolph. Justice Alito writing for the majority in Fernandez, reasoned that when an objecting resident is removed from the scene, his objection expires.

The result is that officers can arrest an objecting resident — for some bogus charge like disorderly conduct or obstruction of a police officer — and then obtain consent to search the residence from another occupant. As Justice Ruth Bader Ginsburg wrote for the dissent, “Instead of adhering to the warrant requirement [of the Fourth Amendment], today’s decision tells police that they may dodge it.”

Second, the Supreme Court ruled that the federal government may freeze a defendant’s assets even when those assets are to be used for a criminal defense attorney before a case goes to trial. In Kaley v. United States, a saleswoman for Johnson & Johnson, Keri Kaley, was accused of stealing prescription medical devices and selling them with her husband on the black market in 2007.

Kaley anticipated criminal charges and took out a $500,000 home-equity line of credit to pay for the defense of her husband and her. After Kaley was indicted by a grand jury, the prosecution got a restraining order freezing the couple’s assets, including the house and funds from the line of credit, on the theory that the assets were the product of the illegal sale of medical devices. Federal law allows a trial court to freeze a defendant’s assets before trial to ensure property is available for forfeiture if there is a conviction.

Kaley requested a hearing to contest the restraining order. The Supreme Court ruled that she did not have a right to a pre-trial hearing because the grand jury had already found probable cause that she had committed the crime. In doing so, the Court held that the grand jury alone can determine whether there is probable cause and that determination cannot be reviewed by a judge. As her attorney, a law professor that likely took the case pro bono, said after the decision was issued: “I don’t know how I will explain to my students at the University of Miami Law School that the Supreme Court ruled that an innocent client cannot use her own money to hire an attorney to defend her in court.”

For more information on the Fernandez decision, check out Nina Totenberg’s story for NPR.

The Wall Street Journal covered both Fernandez and Kaley. Read more here.


What You Can and Cannot Say in Court

I was in court the other day on several criminal cases. One involved a dispute between neighbors. Both people were charged by the police. My client received a favorable plea offer of a deferred judgment and was there to take responsibility for an unfortunate event. The case will be dismissed in a year if he jumps through a few hoops. He simply wants to move on with his life and was happy with the plea bargain.

In contrast, the other neighbor refused to accept the same plea offer and set his case for trial. He happened to be at court on the same day with his criminal defense lawyer and stood up during the sentencing hearing to rant about how my client had gotten off easy. He thought my client was completely at fault for the incident. His decision to address the Court offers a lesson in what statements can or cannot be used at trial.

Photo Credit to Ken Lopez at A2L Consulting
Speak No Evil

We have all heard the Miranda warning a hundred times on television: “Anything you say or do may be used against you in a court of law.” As a former prosecutor for 2.5 years in Eagle County, I can safely say that “may” is better read as “will.” Generally, anything a suspect says or does that suggests guilt will be repeated over and over again by the prosecutor. Statements by suspects are often the biggest issue in criminal trials. Prosecutors love them; criminal defense attorneys try to spin them. Going back to an earlier post, admissions are almost always the “boogers” or “warts” in a case for a person accused of a crime. George Zimmerman’s recent trial is a case in point.

Aren’t statements made by a defendant hearsay? No. Pursuant to Colorado Rule of Evidence 801(d)(2), a statement made by a defendant is not hearsay when it is used against him by the prosecution. For example, when a guy is pulled over in Aspen for a DUI and says, “I was at the Belly Up for a concert and had a few drinks,” his admission that he drank will most definitely be used against him at trial. The caveat to the rule is that the admission will not be admitted as evidence if the statement was illegally obtained by the police officer. That is because of the doctrine known as the “fruit of the poisonous tree,” which is a whole subject unto itself.

However, statements made while negotiating a plea bargain are generally inadmissible under Rule of Evidence 408. If a Vail criminal defense attorney is discussing a case of domestic violence with the Eagle County prosecutor and admits that his client hit the victim, it is extremely unlikely that statement will come in at trial.

There are exceptions to that rule on settlement discussions. A 2007 amendment to Rule 408 allows statements in a criminal case made by a defendant negotiating with a public officer in a separate civil case. A prime example would be a defendant admitting he had been drinking in Aspen during his DMV  revocation hearing. That admission would likely be used against him if he later went to trial with his Aspen DUI lawyer. But the general policy of the Colorado law is to encourage people to discuss settlement — whether it be in a criminal case, civil lawsuit or a divorce — openly and candidly. The same principle applies to discussions in mediation.

How do Rules 810(d)(2) and 408 apply to the neighbor case above? Easy. The neighbor admitted a number of things happened. He admitted that he damaged my client’s property. That may open him up to a new charge of criminal mischief. Whoops. He also said that he grabbed my client. That supports the existing charge of third degree assault. Whoops again. He essentially boxed himself into a very specific and detailed story about what happened. If he takes the stand at his own trial, the prosecutor will hold him to that story.

Furthermore, court proceedings are recorded. The prosecutor will undoubtedly get a transcript of exactly what the neighbor said and have it ready in his back pocket for trial. If the neighbor strays at all from his earlier statements, the prosecutor will question his credibility through impeachment. Those inconsistencies can add up with a jury, especially in Aspen and Vail.

There was little to be gained from the neighbor’s rant in court. He could have simply told the judge that he disagreed with the favorable plea bargain and sat down. A lot was lost. If he follows through with his plan to go to trial, he may learn the hard way what you can and cannot say in a Colorado court.

Date Rape Drugs & ESPN

A quick note on ESPN’s report regarding Florida State QB and Heisman hopeful, Jameis Winston. For those that haven’t been keeping track of the story, Winston is alleged to have sexually assaulted a girl who is presumably another student at FSU.

According to ESPN’s Shelley Smith, there weren’t any traces of “date rape” drugs in the girl’s blood. The suggestion that her toxicology results disprove any allegation that she was drugged is a tad misleading.

The most common date-rape drugs are GHB and Rohpnol (“ruffie”). I’ve dealt with these defenses before. The signature feature of those drugs is that they’ll normally go undetected in a blood or urine test unless a sample is obtained shortly after consumption. The report is ambiguous about when the test in Winston’s case was taken.

There isn’t much information widely available on this case, but one important question is when exactly the test of the girl’s blood or urine was taken.

[Update: Winston won’t be charged. Obviously, there were too many unanswered questions for the prosecutor to go forward.]

Glenwood Murder Suspect Seeking Private Counsel

There’s been an interesting twist in the Glenwood Springs murder case involving Fredy Cabrera. According to unnamed sources, Cabrera no longer qualifies for a public defender. If Cabrera lied about his assets on his application for the PD, that evidence may be admissible at trial under C.R.E. 608(b) if Cabrera testifies. This will be an intriguing story to follow.

Vail Daily Article on October DUIs

The Vail Daily recently published an article on DUIs in October and used a case study from a tragic alcohol-related death in Breckenridge. The problem is that the article’s “lead” is confusing and simply wrong. There was not a jump in DUIs in October this year as is suggested in the article. The number of fatalities from Colorado DUIs actually dropped dramatically from October 2012 to this year.

However, despite the misleading introduction, the article raises some important points about DUIs in Aspen and Vail. First, there is a culture of partying and pushing the envelope in all aspects of life, including drinking and driving, in resort communities. The DA for 5th JD, Bruce Brown, disclosed that there were 1,250 alcohol-related driving offenses in the counties of Eagle (Vail), Summit (Breckenridge), Lake (Leadville), and Clear Creek (Georgetown).

Second, DUIs are expensive. The article states that fines could reach up to $10,270. While I have yet to see a fine that high, there is no doubt that a DUI will be more than a cab ride home. In addition to fines, the Colorado DMV requires a person install an Interlock device on their vehicle in most circumstances following an arrest for DUI. Typically those devices cost approximately $75/month.

Finally, one mistake can change everything. As the defendant featured in the article, Maverick Bain, said at his sentencing, “No one ever thinks this [killing your friend from a DUI] can happen to them.” Now Bain has 4 years in prison to think about how and what he did.

Is it OK to Kill Cyclists?

We don’t have as much of a conflict between cyclists and vehicles in urban areas like NYC or San Francisco, but this article is worthy of a read on a Sunday for those in Colorado. It highlights the friction between the intersection of law, people’s perceptions and stereotypes and increase in people cycling. That friction is much more prevalent in Boulder than, say, Aspen, but the theme of the article is nevertheless interesting for all those that drive a car and occasionally get on a bike.

Going to Trial on Principle

Say what you will about Mark Cuban, you gotta respect a guy that drops $20 million to take on the SEC at trial when a settlement would’ve likely cost him a mere $2 million. Cuban contested the SEC’s allegations that he engaged in inside trading and won. He’s fortunate to be rich. As Cuban himself acknowledged, “I’m glad I’m able to be the person who can afford to stand up to” the SEC.

The kicker to Cuban’s trial is that the SEC apparently based their entire case on a single witness that couldn’t be subpoenaed to testify because he lived in Canada. That, my friends, is called JV lawyering.