March 30, 2011

United States Supreme Court criminal law related decision 3-29-11

Connick v. Thompson                        Brady Violation / Liability
Facts: Louisiana convicted Mr. Thompson of armed robbery in one case, murder in another case, and sought and obtained a death sentence against him. The same District Attorney assigned the same lead DA to each case along with 2 other Assistant DA’s. In the armed robbery, the assailant supposedly bled on the pant leg of one of the witnesses. The prosecution then sought testing of that swatch from the pant leg for blood type, which came out to be Type B. Mr. Thompson’s blood is Type O. Here is how Justice Ginsburg told the facts:
“Second, Dubelier or Whittaker ordered the crime laboratory to rush a pretrial test of the swatch.  Tr. 952–954. Whittaker received the lab report, addressed to his attention, two days before trial commenced.  Immediately thereafter, he placed the lab report on Williams’ desk. Record EX151, EX589.  Although the lab report conclusively identified the perpetrator’s blood type,  id., at EX151, the District Attorney’s Office never revealed the report to the defense.6 Third, Deegan checked the swatch out of the property room on the morning of the first day of trial, but the prosecution did not produce the swatch at trial.   Id., at X43.  Deegan did not return the swatch to the property room after trial, and the swatch has never been found.  Tr. of Oral Arg. 37.”
To recite all the prosecutorial misconduct here, would be just to recite the entire record. However, the prosecution then sought perjured testimony from another suspect who matched the description of the murder suspect  (Thompson did not). The prosecution did not disclose other exculpatory evidence, fought the defense’s efforts to force disclosure at every turn, and continued to fight disclosure long after the conviction was final. Shortly before Mr. Thompson’s scheduled execution, the defense found on microfiche the original results from the testing of the blood on the swatch from the pant leg. Based upon that, the court threw out the armed robbery conviction, an appellate court reversed his murder conviction and death sentence, and at a later trial, a jury found Mr. Thompson not guilty of murder.
Issue: Whether a prosecutor and his office may be liable for Brady violations that result in a death sentence and 18 years in prison, with 14 years of that sentence on death row?
Held: No.
Reasoning: In a 5-4 decision, the U.S. Supreme Court minimized the violation as one isolated incident, and found the prosecution could not be liable.  Justice Ginsburg thoroughly eviscerates the majority opinion, and shows clearly that this was not an isolated incident, but a concerted effort to convict and kill an innocent man.  Justices Sotomayor, Breyer, and Kagan joined Justice Ginsburg in her dissent.

March 28, 2011

Colorado Supreme Court 3-28-10 criminal law decisions/opinions

People v. Schutter            Warrantless Search / Abandoned Property / iPhone
Synopsis: Up in Aspen, Mr. Schutter dropped by a convenience store, got a key to the restroom, used the facilities, but forgot both the key and his iPhone in the restroom. The prick of a clerk at the convenience store refused to unlock the door proclaiming he/she/it was simply “too busy.” Further, the clerk told Mr. Schutter to come back when he/she/it was not so ‘busy’ to pick up the iPhone. By the way, this incident occurred around 3:20 in the morning. Mr. Schutter did not justifiably choke, mutilate, or punish the clerk, but simply told the clerk he would be back later when the clerk had time. In less than an hour after Mr. Schutter left the store, the clerk opened the door, grabbed the iPhone, and promptly called the cops to turn the phone over. Upon arrival, the police searched the phone by going through text messages, answering calls and snooping through other contents in the phone. To actually identify the phone, the police used their own police service, which easily identified the phone. However, based upon the text messages, the police sought and obtained a search warrant for Mr. Schutter’s home. Subsequently, the prosecution filed two felonies against Mr. Schutter - possession with intent to distribute, a class 3 felony, and possession of more than a gram (old law), a class 4 felony. The prosecution big bitched Mr. Schutter by filing three habitual criminal counts against him.
The district court suppressed all the evidence gained as a result of the warrantless search of the iPhone. Further, the District Court suppressed all the other evidence, including the evidence gained from the search of Mr. Schutter’s home, as fruit of the unconstitutional search of Mr. Schutter’s iPhone. In doing so, the District Court found that Mr. Schutter did not abandon, lose or misplace his phone. Moreover, the District Court found, even if Mr. Schutter lost, abandoned, or misplaced the phone, the police went beyond the scope of a search needed to identify the owner of the iPhone.
Issues: 1) Whether the District Court correctly found that Mr. Schutter did not abandon, lose, or misplace his iPhone?
2) Assuming the iPhone to be lost, abandoned, or misplaced, whether the police exceeded the scope of a search necessary to locate the owner of the iPhone?
Held: The Colorado Supreme Court held that Mr. Schutter did not lose, abandon, or misplace his iPhone. Thus, the Court affirmed the District Court’s suppression order in its entirety.  The Colorado Supreme Court saved the second issue for another day.
Reasoning: Justice Coates, of all Justices, wrote the majority opinion. Justice Coats wrote simply and succinctly, that no one with a straight face could characterize property as abandoned when the owner knows where he left the property, told the clerk about the property, and stated his intentions to retrieve the property later the same day.
Justice Eid, smile and all, did characterize the iPhone as abandoned, and dissented.

People v. Schakley                        Venue
Synopsis: In an off-year election, 2009, Mr. Schakley allegedly voted in both Arapahoe and Adams counties.  Carol Chambers and crew in Arapahoe charged Mr. Schakley, who voted in his own name on both ballots, with misdemeanor voting fraud. The defense filed and the Arapahoe County Court granted a motion to change venue to Adams County. The prosecution appealed the venue change through an interlocutory appeal with the Colorado Supreme Court.
Issue: Whether the trial court had the authority to change the venue from Arapahoe to Adams County?
Held: No.
Reasoning: The Court held either Adams or Arapahoe to be proper venue. The Court found that a trial court may change venue if the current venue could not provide a fair or expeditious trial or if the parties stipulate to a change of venue. The Court stated flatly, “[A] criminal court does not have the inherent power to transfer a criminal prosecution from a county in which the legislature has deemed it triable ‘merely because the court considers another county to be a more appropriate venue or more easily established as a proper situs of the offense.’ “ Further, the Court reasoned, We have acknowledged that the ‘act in furtherance of’ language of section 18-1-202(1) serves to expand the situs of the crime beyond the location of the causative criminal conduct or proscribed result, and includes any county where an act in furtherance of the offense occurred.”  The Court referred to its previous decision in People v. Freeman, 668 P.2d 1371 (Colo. 1983). In Freeman, the Court “determined that the sale of stolen property was an ‘act in furtherance of’ felony murder, where the disposition of the property was closely related to the defendant’s overall criminal scheme of obtaining stolen vehicles by means of robbery, kidnapping, and murder.” Thus, in Freeman, the Court found “venue was proper in Jefferson County for a felony murder that occurred in Denver County, even though the only act that occurred in Jefferson County was the subsequent sale of the stolen vehicle.” (quoted portions taken from Schakley).

March 24, 2011

Court of Appeals criminal law decisions 3-17-11

People v. Griffin – Failure to Register / Sufficiency of the Evidence            
Facts: Mr. Griffin told the folks in Denver he intended to reside in Adams County at a specific residence. However, Mr. Griffin’s housing arrangements fell through, and he never moved to Adams County. The prosecution brought this charge based upon his statement to Denver that he intended to reside in Adams (and wasted umpteen dollars extraditing him from another state, and trying this garbage).
Issue: Whether ‘an intent to reside’ provides a sufficient basis to convict for failure to register when the person never actually resides at the intended residence?
Held: Thank the sweet baby Jesus, No. That is not a sufficient basis to convict.
Reasoning: The prosecution pulls out the statutory language that illustrates how to prove someone’s residence. The CofA stated, “But the People argue that ‘establish a residence’ has a special meaning under the registration act. Relying on sections 16-22-102(5 .7) and -105(3), C.R.S.2010, they argue that a sex offender may ‘establish a residence’ merely by intending to live in a place.”
Thankfully, the CofA wisely goes through the statute and opines the prosecution mistakes the legislature’s guidance. The CofA wrote:
Section 16-22-105(3) states that an offender must register where he “establishes a residence,” and it provides information about how that intent may be proven: For purposes of this article, any person who is required to register pursuant to section 16-22-103 shall register in all jurisdictions in which he or she establishes a residence. A person establishes a residence through an intent to make any place or dwelling his or her residence. The prosecution may prove intent to establish residence by reference to hotel or motel receipts or a lease of real property, ownership of real property, proof the person accepted responsibility for utility bills, proof the person established a mailing address, or any other action demonstrating such intent. *3 Notwithstanding the existence of any other evidence of intent, occupying or inhabiting any dwelling for more than fourteen days in any thirty-day period shall constitute the establishment of residence. (Emphasis added.) We conclude that this provision does not obviate the need for physical presence or occupancy. Rather, it distinguishes the kind of occupancy that requires registration from the kind that does not. 2 Thus, contrary to the People's view, we conclude that the emphasized language does not require a sex offender to register where he merely intends to live.

People v. Kiniston    Definition of ‘Conviction’ for purposes of the 2-prior felony rule.
Facts: Mr. Kiniston pled to an F4 theft, and the court approved a deferred sentence. Unfortunately, Mr. Kiniston picked up two felony convictions after the court placed him on the deferred. Upon revocation, Mr. Kiniston argued for probation. The trial court found because at the time of his sentencing that Mr. Kiniston had twice been convicted of a felony, the court could not grant probation.
Issue: Whether the term conviction applies to when Mr. Kiniston pled or whether conviction applies to when the court actually imposes a sentence?
Held: The term conviction applies to when Mr. Kiniston pled originally – not when the court revoked the deferred and entered judgment on that conviction.
Reasoning: The CofA went through other statutes and other decisions which defined ‘conviction’, and almost every instance penalized the defendant one way or another. Thus, the State wanted to disregard all of that law of which it benefitted mightily to win on this relatively meaningless issue.
            The CofA reasoned:
If the term “conviction” were read to mean “judgment of conviction,” subsection (2)(a.5) would read as follows: A person who has twice or more received a judgment of conviction of a felony ... prior to the judgment of conviction on which his or her application for probation is based shall not be eligible for probation. Because a “judgment of conviction” includes the sentence imposed, such a reading is nonsensical, as it discusses the availability (or lack thereof) of probation for a defendant who has already been sentenced. Cf. Nance, 221 P.3d at 433 (in a probation revocation case under section 18-1.3-201(2), the division noted that a defendant's application for probation is made after “conviction,” in a context clearly indicating that “conviction” does not mean “judgment of conviction”).

People v. Blue             Specific Statute vs. General Statute - Attempting to Influence a Public Servant vs. False Reporting to Authorities
Synopsis: According to the police, they got a call from a Crime Stoppers snitch who told the police Mr. Blue was in the Colorado Springs library. The police stopped and interrogated Mr. Blue. Mr. Blue initially denies he is Tony Blue – the fellow wanted on Crime Stoppers. However, the police searched him after the stop, and unfortunately, they found an ID, which identified him as Tony Blue. No word on what Mr. Blue was wanted for on Crime Stoppers, but the petulant and ultra petty prosecutors in the Springs charged Mr. Blue with Attempting to Influence a Public Servant – not False Reporting (giving a fake name to a cop subsection). The defense filed a motion to dismiss, the trial court heroically granted the motion, and reduced the charge to False Reporting.
Issue: Whether the trial court exceeded its authority by dismissing the felony charge of Attempting to Influence a Public Servant?
Held: Yes.
Reasoning: We all could see this coming. Perhaps the defense should have waited until half-time, after jeopardy attached, and rolled all these arguments into a motion for judgment of acquittal. No doubt, after this reversal, the trial judge will be too gun shy to grant an MJOA.
            Rule - Specific v. General Statute:Enactment of a specific criminal statute does not preclude prosecution under a general criminal statute, unless statutory language indicates that the legislature intended to limit prosecution to the specific statute. To determine whether the General Assembly intended that a specific statute would preclude prosecution under a general statute, we address (1) whether the specific statute invokes the full extent of the state's police powers; (2) whether the specific statute is part of an act creating a comprehensive and thorough regulatory scheme to control all aspects of a substantive area; and (3) whether the act carefully defines different types of offenses in detail. (citations omitted).” The CofA reasoned False Reporting, unlike liquor laws or gaming statutes, is not included in some regulatory scheme; and nothing in the statutes limits prosecutions under this statute alone.
            Equal Protection – “The United States Constitution and the Due Process Clause of the Colorado Constitution guarantee a defendant equal protection under the law. The context of criminal law, equal protection prohibits punishing identical criminal conduct with disparate penalties. The corollary to this rule is that if a criminal statute proscribes different penalties for identical conduct, and a defendant is convicted under the statute imposing the harsher penalty, then the defendant's right to equal protection is violated unless there are reasonable differences or distinctions between the statutes at issue.” False Reporting and Attempting to Influence a Public Servant require different mental states and punish different conduct. Thus, the government did not violate the Equal Protection clause by charged Mr. Blue with Attempting to Influence

People v. Sowell            Applicability of Sex Offender Registration
Facts: In 1995, Mr. Sowell pled to sexual assault on a child – position of trust. At the time of his plea, the statute required Mr. Sowell to register until a court granted his petition to cease registering – an indefinite term. In 2001 and 2002, the legislature changed the registration requirements from indefinite to life-long registration. The trial court, bless its heart, granted Mr. Sowell’s motion to cease all registration. The prosecution appealed.
Issue: Whether the trial court exceeded its authority to grant Mr. Sowell’s petition to cease all registration requirements?
Held: Yes.
Reasoning: Essentially, Ex Post Facto clauses do not apply to registration requirements. Mr. Sowell argued detrimental reliance upon the statutory scheme at the time of his plea, and upon a notice he received prior to a plea. The CofA found the handwritten notice insufficient to rely upon. Further, regarding the statutory scheme, the CofA interpreted this argument as an Ex Post Facto argument – sealing Mr. Sowell’s fate. “Ex Post Facto Clauses forbid states from enacting laws which impose additional punishment to that which was prescribed at the time an act was committed.” See also, Gasper v. Gunter, 851 P.2d 912, 913 (Colo. 1993). Previously, the CofA found statutes requiring registration do mete out punishment, and thus, none violate Ex Post Facto. See People v. Stead, 66 P .3d 117, 120 (Colo.App.2002); People v. Tuffo, 209 P.3d 1226, 1230 (Colo.App.2009).

March 14, 2011

Colorado Supreme Court decisions 3-14-11

Cropper v. People            Confrontation Clause and C.R.S §16-3-309(5)(lab tech notice)
Facts: C.R.S §16-3-309(5) requires counsel to request that any lab technician to testify in person 10 days prior to trial. (DNA, Alcohol, or any other ‘comparologist’ as Wymore calls these clowns). In Mr. Cropper’s case, the defense did not file any notice with the Court requiring in person testimony.
Issue: Whether allowing a lab report of a technician’s findings violates the Confrontation Clause when the defense did not request in person testimony pursuant to C.R.S §16-3-309(5)?
Held: No.
Reasoning: Despite the entire movement away from using technical pleadings to knock-out the opposing side’s evidence, the Colorado Supreme Court found not complying with a technical rule waives a Constitutional Right – the Right to Face-to-Face Confrontation.  Thus, if a lawyer fails to request live testimony from a lab tech pursuant to C.R.S §16-3-309(5), then the client waives his/her right to confront the lab tech in court. Justice Rice wrote the opinion for the Court. Both Justices Bender and Martinez dissented.
The Court cites dicta in Melendez-Diaz, 129 S.Ct. 2527 (2009), to justify today’s holding while declining to follow the its own dicta in People v. Mojica-Simental, 73 P.3d 15 (2003)( §16-3-309(5) held to be constitutional on its face). In Melendez-Diaz v. Massachusetts, the U.S. Supreme Court held simply that admitting lab reports without live testimony violates the Confrontation Clause of the U.S. Constitution.  However, the U.S. Supreme Court gave the Colorado Supreme Court an erection by quoting it in Hinojos-Mendoza v. People,  “There is no conceivable reason why he cannot similarly be compelled to exercise his Confrontation Clause rights before trial. See Hinojos-Mendoza v. People, 169 P.3d 662, 670 (Colo.2007) (discussing and approving Colorado's notice-and-demand provision).”  Melendez-Diaz 129 S.Ct. at 2541.
In Mojica-Simetal, an opinion by Justice Martinez, the Court reasoned that the right to confront witnesses was personal in nature, and thus, the CLIENT must knowingly, intelligently, and voluntarily waive his/her right to confront the witness. In today’s case, the Court simply stated, “In Hinojos-Mendoza, we reaffirmed the constitutionality of section 16-3-309(5) and acknowledged that the dicta in Mojica-Simental was misplaced because it was based on the mistaken assumption that a defendant can only waive his right of confrontation if he personally makes a knowing, voluntary, and intentional waiver.”
Lastly, the Court reached to People v. Curtis to quote the language ‘the attorney is the captain of the ship’.  The Court states, “People v. Curtis, 681 P.2d 504, 511 (Colo. 1984) ([D]efense counsel stands as captain of the ship. . . . [D]ecisions committed to counsel include . . . whether and how to conduct cross-examination . . .” (internal quotations and citations omitted)). And, in some instances, defense counsel’s inaction alone is sufficient to constitute a waiver.” (Defense lawyer being the Captain of the Ship came as  news to most defense lawyers who read the Court’s decision last year in People v. Bergerud, 223 P.3d 686 (Colo.2010). In Bergerud, Court remanded a first-degree murder case to determine whether defense counsel investigated enough wild-goose chases on behalf of the client).

People v. Rector            Expert testimony  / Shreck
Facts: The prosecution charged and a jury convicted Ms. Rector of child abuse. She claimed the kid fell off the bed. Dr. Sirotnak and two other doctors opined the kid suffered non-accidental abuse. Pre-trial the defense asked for a Shreck hearing on the issue of shaken-baby syndrome. At the hearing, the prosecution stipulated they did not intend to admit any evidence of shaken-baby syndrome or imply the child suffered from shaken-baby syndrome. The defense did not object to Dr. Sirotnak’s qualification as a medical expert and the defense did not challenge him, the other doctors, or the “non-accidental abuse” under Shreck.
Issue: Whether Shreck required a pre-trial hearing of Dr. Sirotnak’s proffered testimony and opinion?
Held: No.
Reasoning: The defense sought a Shreck hearing on one doctor but not on Dr. Sirotnak. See People v. Shreck, 22 P.3d 68 (Colo. 2001). The Court stated, “In determining admissibility of expert testimony, a trial court employs a Shreck analysis, which requires that: (1) the scientific principles underlying the testimony are reasonably reliable; (2) the expert is qualified to opine on such matters; (3) the expert testimony will be helpful to the jury; and (4) the evidence satisfies CRE 403. Shreck, 22 P.3d at 77-79.”
Thus, the defense only sought a Shreck hearing on the issue of shaken-baby syndrome. As such, the Colorado Supreme Court held that failure to request a Shreck hearing on the issue testified to at trial or to Dr. Sirotnak pretrial cannot then be raised on appeal. Further, the Court emphasized the defense did not challenge Dr. Sirotnak’s qualifications as a medical expert at trial, and the defense conceded that Dr. Sirotnak could offer an expert medical opinion. Essentially, the Court punted the whole issue back to the defense to demand specific challenges to specific doctors and specific evidence. Thus, the Court found the following language be too general to give the trial court notice of the issue: “the doctors ha[d] inferred that there [wa]s no accidental trauma and in fact, the conclusion that the doctors reach[ed] support[ed] the bringing of . . . charges [for] the intentional act to abuse the child.”

March 3, 2011

Colorado Court of Appeals decisions 3-3-11

People v. Kazadi            35(c) –  Ineffective Assistance of Counsel / Controlled Substances and Immigration Consequences
Facts: Mr. Kazadi pled to possession with the intent to distribute marijuana, and the prosecution agreed to a deferred sentence. However, as part of the deal, the prosecution also required Mr. Kazadi to plead to possession of a schedule V controlled substance, a class one misdemeanor. Mr. Kazadi took the deal, and then ICE instituted removal proceedings. Mr. Kazadi claims his lawyer never told him of the immigration consequences. After ICE instituted removal proceedings, Mr. Kazadi filed a 35(c), which the trial court summarily denied. Mr. Kazadi filed a Rule 21 with the Colorado Supreme Court and the Supreme Court denied the Rule 21. Mr. Kazadi then filed a direct appeal of the denied of a 35(c) to the Court of Appeals.
Issue: Whether a trial court may summarily deny a 35(c) without a hearing when the client alleges the plea lawyer never informed the client of the immigration consequences?
Held: No.
Reasoning: Pursuant to Padilla v. Kentucky, ___ U.S. ___, ___, 130 S. Ct. 1473, 1478 (2010) and People v. Pozo, 746 P.2d 523, 525-26 (Colo. 1987), the Court of Appeals reasoned that Kazadi raised enough in his 35(c) motion to get a hearing:
(1) discovery indicated that he was born in the Congo and was not a citizen of the United States, (2) he told his counsel that he and his family came from the Congo when he was a child, and (3) he has a foreign name and speaks with a foreign accent. If true, these allegations suffice to show that his counsel knew or had enough information to know of Kazadi’s alien status, thus triggering a duty to investigate relevant immigration law and to advise accordingly. See id. According to Kazadi, however, his counsel did not conduct the necessary research and did not advise him that his misdemeanor conviction would, in fact, subject him to presumptive mandatory deportation under 8 U.S.C. § 1227(a)(2)(B) and permanent exclusion from the United States.
Issue: Whether a deferred felony qualifies as a “final conviction” to allow a court to review the case under Rule 35(c)?
Held: No.
Reasoning: The Court of Appeals reasoned that because the trial court did not revoke Mr. Kazadi’s deferred sentence and impose sentence, the conviction is not final. Thus, 35(c) does not provide an avenue to attack a deferred sentence, regardless of the ineffective assistance received. The CofA stated:
Notwithstanding the foregoing, we are sympathetic to Kazadi’s apparent “catch-22,” in which he may be subject to removal based on a deferred judgment that he may never have the opportunity to challenge in a Crim. P. 35(c) motion. See generally 8 U.S.C. §§ 1101(a)(48)(A)(i) (defining “conviction” to include guilty plea), 1227(a)(2)(B)(i) (alien convicted of violation of law relating to controlled substances is presumptively deportable). Nonetheless, we believe that our supreme court’s interpretation of Crim. P. 35(c) dictates our result.

People v. Greer            SAC / Rule 16 – Mandatory Disclosure of Experts / Unanimity
Facts: Mr. Greer worked as a manager at a fast food restaurant. Two girls one 14 and the other 15 claimed Mr. Greer grabbed their butts and rubbed his penis on their rear-ends during work hours. All the touching supposedly occurred with clothes on, during work, with other witnesses around. Neither alleged intercourse or anything more than frottage. Reading the allegations, it all sounded like made up vindictiveness that could easily convict an innocent person – no physical evidence, no other eyewitnesses, just two girls.
Issue: Does Rule 16 require the prosecution to disclose experts prior to trial?
Held: No.
Reasoning: Rule 16 does not mandate disclosure of expert witnesses. Instead the Court of Appeals held that the defense must make a request under the discretionary disclosure section of Rule 16. Should the trial court grant that request, then the prosecution must disclose expert witnesses.
Issue: Must the jury be unanimous where the evidence does not specify to which count the evidence applies?
Held: Yes.
Reasoning: On counts 4 – 8 the jury found Mr. Greer guilty, but on a special interrogatory marked they did not unanimously agree. Thus, the CofA reversed Mr. Greer convictions on those SAC counts.

People v. Walker             SVP Procedures / Amendments / Waiver of Jury Trial
Facts: Mr. Walker liked kids, taught kids, and, unfortunately, liked taking pictures of teenage boys. According to the opinion, three boys all around 14 to 15 succumbed to pressure by Mr. Walker who met them as their 8th grade teacher. Each claimed on separate occasions that Mr. Walker ‘forced’ them to pose nude  for pictures.  Mr. Walker waived his right to a jury trial, and the judge convicted Mr. Walker of a slew of offenses including unlawful sexual contact, exploitation, enticement etc. Subsequently, the trial court ordered the sex offender evaluation and assessment. In addition to the sex offender assessment, the evaluator filed attached a letter extolling the necessity of lifetime supervision for Mr. Walker. At sentencing, the trial court sentenced Mr. Walker to an indeterminate sentence in prison. However, the evaluator never opined that Mr. Walker likely to re-offend, but only Mr. Walker posed a significant risk to re-offend.
Issue: Whether a letter written by the sex offense evaluator can comprise the record in which the court can justifiably find SVP?
Held: Yes.
Reasoning: The CofA found nothing wrong with the trial court relying on a letter written by the evaluator, which stated the need for lifetime supervision. The CofA rejected Mr. Walker’s assertion that the trial court may ONLY rely upon the sex offender assessment in determining the SVP issue. Further, on the sufficiency of the proof, the appellate lawyer on the case gave me some insight. An element of finding Sexually Violent Predator is whether the prosecution proved the offender is "likely to re-offend" beyond a reasonable doubt. Here, the evaluator could neither opine that Mr. Walker would re-offend nor "likely to re-offend.' The evaluator only opined that Mr. Walker posed a significant risk to re-offend. To the CofA, 'close enough for government work.' As the appellate lawyer wrote, " 'A 10% risk of brake failure is 'significant,' but it is far from 'likely.' "
Issue: Whether the trial court erred in allowing the prosecution to amend the date of offense on the morning of trial?
Held:  No.
Reasoning: Seems the CofA ignored the herky-jerky amendments the prosecution filed. First, the prosecution came up with a range, then narrowed the range, then narrowed the range again, and then morning of trial expanded the range of dates for the offense. The CofA ignored the cumulative effect of all the amendments, and held that the last amendment coming a week after the previous amendment did not substantively change the charge.
Issue: Whether the trial court adequately advised Mr. Walker of his right to a jury trial and the waiver of his jury trial?
Held: No.
Reasoning: The CofA went through the advisement the trial court gave and the advisement required by rule Crim. P. 23(a)(5), and found the trial court's advisement lacking. Crim. P. 23(a)(5) states:
 (I)      The person accused of a felony or misdemeanor may, with the consent of the prosecution, waive a trial by jury in writing or orally in court. Trial shall then be to the court.
(II)     The court shall not proceed with a trial to the court after waiver of jury trial without first determining:
(a)          That the defendant's waiver is voluntary;
(b)          That the defendant understands that
            (i)      The waiver would apply to all issues that might otherwise need to be determined by a jury including those issues requiring factual findings at sentencing;
(ii)  The jury would be composed of a certain number of people;
(iii) A jury verdict must be unanimous;
(iv) In a trial to the court, the judge alone would decide the verdict;
(v) The choice to waive a jury trial is the defendant's alone and may be made contrary to counsel's advice.
The CofA found the inadequate advisement to be plain error. However, rather than reverse remand for a new trial, the CofA stated the trial court must conduct a hearing to assess prejudice. The CofA quoted People v. Montoya ---P.3d--- (Colo.App.2010)(decided March 4, 2010), " 'Before the trial court can find a defendant's waiver of the right to a jury trial was constitutionally invalid and warrants a new trial, the defendant must establish prejudice by showing that
(1) if there had been a proper advisement, he would not have waived the jury;
(2) therefore, the deficient advisement resulted in a waiver that was not made knowingly, voluntarily, or intelligently.' "   
           Thus, the CofA remanded the case to the trial court to conduct a hearing. 

U.S. Supreme Court decisions 3-2-11

Pepper v. United States Admissibility Of Post-sentence Rehabilitation
Issue: Whether, upon remand, evidence of post-sentence rehabilitation can be used by the District Court to mitigate a sentence?
Held: Yes.
Originally charged with drug crimes, Mr. Pepper put himself through drug treatment and remained sober prior to the original sentencing. Based upon the mitigating factors, the original sentencing court sentenced Mr. Pepper to 24 months in prison, some 75% below the guidelines. The Government appealed, the Court of Appeals reversed, remanded, and held the District Court did not make sufficient findings to justify its sentence. Upon remand, the District Court made particularized findings, and imposed the same 24-month prison sentence. Petulant Government Prosecutors again appealed, and again the Court of Appeals reversed the District Court. However, upon remand, the case was re-assigned to another judge who gladly sentenced Mr. Pepper to a much harsher sentence. Further, the District Court flat out refused to hear any mitigating rehabilitation evidence that occurred after Mr. Pepper's original sentencing. The Court of Appeals affirmed the sentence. The U.S. Supreme Court reversed the sentence and held that a sentencing court may take into account the post-sentencing rehabilitation to mitigate Mr. Pepper's sentence. Unfortunately, the Supreme Court held that the District Court does not need to re-impose the original 24-month sentence.

Snyder v. Phelps,    First Amendment / Defenses
Good news: Both the conservatives and moderates (no liberals exist on this court) agree on an expansive reading of the First Amendment. The Court held that the First Amendment protects protests at military funerals. Thus, the Court reversed a 5 million dollar award to the Snyders, and held that the Church, Phelps and others could not be prohibited from protesting at such funerals. Justice Roberts wrote the opinion in which everyone but Alito joined.
     Justice Alito, proclaiming his newfound talent for empathy (after all it was easy for him - white, male, soldier), complains about the "verbal assaults" lodged at the Snyders (odd, given that Alito supports First Amendment rights when the speaker insults African-American, Hispanics, Gays or some other minority see Saxe v. State College  (here: ) ).
     Justice Breyer in his namby-pamby-hand-wringing way, needed to say that sometimes words are just too mean, and that States can, in certain circumstances, prohibit speech that is just meany-weenie. 
Bad news: right result, but douche bag extrordinaire Fred Phelps, the "pastor" of the Westboro Baptist Church was the benefactee of this decision – these be the clowns who protest funerals of soldiers and hold up signs at such funerals that read "God Hates Fags." Interesting Wikipedia note on Phelps: Democrat, former Civil Rights Activist, and disbarred lawyer.

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