Colorado Supreme Court 1-11-10

People v. Bergerud               Complete Breakdown in Communication / Counsel Usurping Client’s Fundamental Rights /  Failure to Investigate Legitimate Defense

Facts: The prosecution alleged Mr. Bergerud shot and killed his ex and her new beau. The state sought death. Mr. Bergerud hired private counsel, went to trial, and the first jury deadlocked. After the trial court declared a mistrial, the prosecution no longer pursued the death penalty, and the trial court appointed the Public Defender’s Office (specifically Tammy Brady and Brian Connors - the Office Head in Greeley, and the Senior Lawyer in Greeley; also, from the minute orders David Wymore and David Kaplan also appeared; thus, not a case the PD’s took lightly). A second trial commenced, on the 5^th day of trial, after opening statements, client complained that he wanted to run self-defense. Defense counsel’s opening essentially attacked the mens rea element, and did not argue self-defense. Mr. Bergerud complained to the trial court that neither of his defense lawyers listened to him, did not investigate his claim of self-defense, and his former lawyer in a letter to Mr. Bergerud lamented not raising self-defense in the first trial (the first lawyer also pursued the same strategy as the PD’s did in attempting to undermine the mens rea element). The Court of Appeals reversed the conviction, and held that defense counsel’s opening statement impermissibly conceded guilt on lesser counts.

On Remand: The Colorado Supreme Court reversed, but remanded the case for further proceedings. The Court made notes of these possible errors to be determined on remand:

1)         Did defense counsel’s opening statement usurp Mr. Bergerud’s fundamental right to testify? If so, Mr. Bergerud would be entitled to a new trial with new counsel.

2)         Did Mr. Bergerud’s court appointed lawyers fail to investigate a legitimate self-defense claim? If so, then Mr. Bergerud might be entitled to a new trial.

3)         When, if ever, did Counsel know there was a complete breakdown in communication with Mr. Bergerud? If Counsel knew a complete breakdown in communication existed prior to trial, but did not bring that to the trial court’s attention, then Mr. Bergerud might be entitled to a new trial with new counsel.

Lastly, the Colorado Supreme Court seemed irritated that when the trial court asked for input from the PD’s, the PD’s remained silent, and did not present their side of the issue (as we should do, trained to do, and must do in order to not undermine the client further). Editorial Note: Just on the surface, from the umpteen motions filed by the PD’s since appointment, to the numerous hearings, to the four days of jury selection, there is no chance there was any derelict in duty (and the lawyers who represented Mr. Bergerud mostly practiced death penalty law).  We had a difficult delusional client, and went with a defense we thought might save him from a life in prison. Nevertheless, this case presents defense lawyers with a new set of issues to consider – essentially make sure client is on board, and if not, determine if there is a complete breakdown in communication. If the client is not on board with the defense, but no complete breakdown in communication exists, do not specifically undermine what client may testify to in opening statement or otherwise.

People v. Broder    Unambiguous Request for CounselThe Colorado Supreme Court held that when Officer Broder asked to see his Lieutenant to see if he had "coverage for counsel" that he did not make an unambiguous assertion to his right to counsel. Thus, the Court held the detective did not violate Mr. Broder's right by further inquiry into whether Officer Broder wanted a lawyer. The Court reversed the trial court's suppression order (the prosecution alleged Officer Broder committed unlawful sexual contact with a female arrestee).

People v. Navarez-Zambrano        Change of VenueIn a seemingly rare Per Curiam opinion, the Colorado Supreme Court held:

“In People v. Gutierrez, No. 09SA69, slip op. at 8 n. 4 (Colo. Dec. 14, 2009), this court determined that '[t]he filing of a federal tax return reporting the past possible misuse of a social security number to comply with federal law requiring the reporting of taxable income and the payment of federal taxes does not constitute a crime.' Based on this reasoning, this court further concluded that the crime of criminal impersonation stemming from the alleged use of a fictitious social security number to earn income is 'fully completed' prior to the filing of any tax returns. Id. Applying the holding of Gutierrez to the case before us, we find that the defendant would have “fully completed” the alleged crime of criminal impersonation prior to the filing of any tax returns. The defendant's alleged filing of the tax returns in Greeley therefore could not constitute an act in furtherance of the crime of criminal impersonation. We thus agree with the trial court's conclusion that the People failed to demonstrate that the defendant committed an act in furtherance of the crime of criminal impersonation in the Nineteenth Judicial District. Accordingly, we affirm the trial court's transfer of the case to the Thirteenth Judicial District.”

Stanton v. Schultz         Issue Preclusion
Yes, this is a civil case. However, the "Stanton" is Rowe Stanton a criminal defense lawyer who was sued along with Jim Covino, another defense lawyer and former public defender. In Federal Court, the federal district court appointed Mr. Stanton and Mr. Covino to represent Mr. Schultz, a former guard in at the maximum security facility in Florence. Mr. Schultz filed a malpractice suit against Messrs.. Stanton and Covino after a jury in federal district court convicted him of abusing prisoners. He claimed that Messrs.. Stanton and Covino committed malpractice by not calling a former inmate who would testify that Mr. Schultz never beat him. Unfortunately, the Colorado Supreme Court reversed the trial court's summary judgment in favor of Messrs.. Stanton and Covino. The trial court found the 10th Circuit previously held that neither counsel committed malpractice, and therefore Mr. Schultz was precluded from litigating the same issue in state court. However, the Colorado Supreme Court disagreed, found the 10th Circuit only held Mr. Schultz did not exercise due diligence in finding the "newly discovered evidence." Thus, the Colorado Supreme Court remanded the case for trial. Crazy. At most, this witness seems like an impeachment witness, and former guard current douche bag Schultz cannot come to grips with the fact you cannot beat prisoners when you get a job as a prison guard. Mr. Stanton does good work on many tough cases, and Mr. Covino is a conscientious and thorough lawyer.