The Defendant’s Theory of the Case Instruction
In a criminal trial a judge gives the jury instructions to follow. For instance the judge will give the jury the definition of beyond a reasonable doubt. It is well established law in Colorado that a defendant is entitled to an instruction on his/her theory of defense read to the jury. Johnson v. People, 145 Colo. 314, 358 P.2d 873 (1961). And the defendant is entitled to an instruction on the defense’s theory of the case when there is any evidence to support it. People v. Nunez, 841 P.2d 261, 264 n. 6 (Colo.1992). The right to this instruction originates defendant’s right to present a defense. Idrogo v. People, 818 P.2d 752 (Colo.1991).
A theory of the case is simply how the defendant sees the facts; e.g. the defendant do not do the crime; it was self defense; the defendant was entrapped; or the State cannot prove its case.
It is very powerful to have a judge set forth the defendant’s theory and the court has an affirmative duty to assist defense counsel in framing a properly worded defense theory of the case instruction. People v. Garcia, 28 P.3d 340, 349 n. 8 (Colo.2001). Even if you know the judge does not agree with your defense a defendant is entitled to an appropriate theory of the case instruction upon the hypothesis that it might be true, no matter how improbable or unreasonable the theory may be. People v. Shaw, 646 P.2d 375 (Colo.1982).
Jake Eppler
THE OCCUPY WALL STREET MOVEMENT- A YEAR IN REVIEW
Since it is the new year I thought a moment of reflection on one of the year’s legal issues was appropriate.
Whatever you happen to think about the Occupy Wall Street, UC Davis, Denver, protesters and their way of protesting, there has never been much legal drama over their rights, and the restrictions, on public protests. The law in this area asserts that authorities can impose reasonable time, place, and manner restrictions on first amendment activities. Hefferon v. International Society for Krishna Consciousness, Inc., 452 U.S. 191 (1992). And I’m not aware of any inkling from the federal courts that this is about to change.
The First Amendment states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” In Gitlow v. New York, 268 U.S. 652 (1925), the Supreme Court held that the Due Process Clause of the Fourteenth Amendment applies this Amendment to each state, including any local government.
The First Amendment was undoubtedly a reaction against the suppression of speech and press that existed in English society. Until 1694 there was an elaborate system of licensing in England to publish. Of course the government could use such licensing as restraint upon speech it wished to suppress. 4 William Blackstone Commentaries on the Law of England (1769). In England speech directed against the government was the crime of seditious libel; under the principle the King was above public criticism, thus statements critical of the government were forbidden. In the American Colonies there were fewer prosecutions for seditious libel in England. However, one famous prosecution did occur in 1753. John Peter Zenger published a criticism of the Governor of New York and was brought before the Court. His lawyer argued that truth should be a defense- the Court did not agree, nevertheless, the jury acquitted Mr. Zenger.
Most constitutional scholars feel there is little doubt that the First Amendment was meant to prohibit the licensing of publications and to forbid punishment for seditious libel, yet beyond this there is little indication what the framers intended. As result there is a debate among legal scholars why should the freedom of speech be protected? There are four arguments in the legal community to protect speech.
The first argument is self-governance: freedom of speech is crucial to a functioning democracy. Open discussion of candidates is essential for voters to make informed decisions when electing their leaders. It is through speech the people can influence government policy. Public officials are held accountable through criticism that lead to their replacement. Whitney v. California, 274 U.S. 375 (1927).
The second argument is discovering the truth: the so called ‘market place of ideas’ doctrine. Justice Oliver Wendell Holmes wrote “the best test of truth is the power of the thought to get itself accepted in the competition of the market, and the truth is the only ground upon which their [citizens] wishes can be safely carried out.” Abrams v. U.S., 250 U.S. 616 (1919). Of course in the market place of ideas truth does not necessarily trump falsehood. Nor does universal acceptance equal truth.
The third argument is advancing autonomy: freedom of speech is an essential part of personhood. For instance, when a war protestor expresses their view “stop this war now” at a demonstration, they do so without any expectation that their speech will actually affect the continuance of the war, rather they participate in the protest to define themselves publicly in opposition to the war. In other words this speech serves the purpose of self-fulfillment or self-realization. Justice Thurgood Marshall observed “[t]he First Amendment serves not only the needs of the polity but also the human spirit-a spirit that demands self-expression.” Procunier v. Martinez, 416 U.S. 396 (1974). But let us consider this, does hate speech or pornography raise our level of self-fulfillment; insofar as it may, does this type of speech also serve to demean and injure others?
The fourth argument is that free speech promotes tolerance: tolerance should be a basic value in our pluralistic society. Free speech involves the act of carving out one area of social interaction for extraordinary self-restraint, the purpose of which is to develop and demonstrate social capacity to control feelings evoked by a host of social encounters. Lee Bollinger, The Tolerant Society (1986). Oddly this argument sounds like an exercise in self discipline akin to not having desert or exercising, in other words, a restraint on the individual rather than a venue for expression.
So back to the Occupy Wall Street protests. Where do they fit within the four rationales for freedom of speech? The first question is what are they saying? Naomi Wolf in the November 25, 2011 Guardian express OWS position as the following:
The mainstream media was declaring continually “OWS has no message”. Frustrated, I simply asked them. I began soliciting online “What is it you want?” answers from Occupy. In the first 15 minutes, I received 100 answers. These were truly eye-opening.
The No 1 agenda item: get the money out of politics. Most often cited was legislation to blunt the effect of the Citizens United ruling, which lets boundless sums enter the campaign process. No 2: reform the banking system to prevent fraud and manipulation, with the most frequent item being to restore the Glass-Steagall Act – the Depression-era law, done away with by President Clinton, that separates investment banks from commercial banks. This law would correct the conditions for the recent crisis, as investment banks could not take risks for profit that create fake derivatives out of thin air, and wipe out the commercial and savings banks.
No 3 was the most clarifying: draft laws against the little-known loophole that currently allows members of Congress to pass legislation affecting Delaware-based corporations in which they themselves are investors.
I’ll leave it to you to determine if this speech fits within the four arguments for free speech or perhaps it fits in all of them.
Happy New Year.
Jake Eppler
The Rule 11 Advisement
In a criminal proceeding a defendant is entitled to quite few rights and to be advised of those rights. These rights originate from many sources: the United States Constitution, the Colorado Constitution, the Colorado Revised Statutes and the Colorado Rules of Criminal Procedure. Rather than define where each right originates, criminal lawyers simply refer to the these rights as a Rule 11 Advisement. Which is shorthand for the rights listed in Colorado Rules of Criminal Procedure Rule 11. The Rule 11 states a defendant has the right:
a. To appear before a judge or magistrate.
b. To enter a plea of not guilty and have a trial by judge, magistrate or jury.
c. The right to be represented by an attorney at all stages of the proceedings.
d. If the defendant does not have the means to hire an attorney, the defendant can ask the Court to appoint one for the defendant without cost to the defendant, and one will be appointed.
e. The defendant is presumed innocent of the charges, and if the defendant pleads not guilty the prosecutor must prove your guilt beyond a reasonable doubt.
f. At trial the Defendant has the right to be confronted by witnesses called to testify against the defendant and to cross-examine those witnesses.
g. The defendant has the right to present evidence in the defendant’s own defense at trial and to compel the attendance of witnesses by subpoenas issued by the Court.
h. The defendant is entitled to a speedy and public trial.
i. The defendant has the right to remain silent concerning the charges and the right to refuse to testify at any stage of the proceedings. The defendant’s silence does not imply any wrong doing on the defendant’s part and cannot be used against the defendant.
j. Any plea entered to the charges must be voluntary and not the result of undue influence or coercion on the part of someone else.
As you can see these are some of the fundamental rights in our system of justice. I generally discuss these rights in the first meeting with a client. In my view it is very important my client has an understanding of these fundamental rights when they are facing a criminal proceeding. In my experience an informed client make better decisions in a difficult situation.
Jake Eppler
The 5-2-2-5 Parenting Plan
Under C.R.S. 14-10-124 the Court has the jurisdiction to set the parenting time (visitation) of the parents with their child(ren). One scenario that parents look to in order to maximize their parting time with their child(ren) is the 5-2-2-5 plan. This plan essentially gives both parents equal parenting time but avoids the long stretch of a 7 days on and 7 days off type schedule. The easiest way to convey how this plan works is seeing it on calendar. Under the calendar below dad always has Mondays and Tuesdays and mom always has Wednesdays and Thursdays; of course the parties can switch which two days they have in row.
Week Monday Tuesday Wednesday Thursday Friday Saturday Sunday
- Dad Dad Mom Mom Dad Dad Dad
- Dad Dad Mom Mom Mom Mom Mom
- Dad Dad Mom Mom Dad Dad Dad
- Dad Dad Mom Mom Mom Mom Mom
The 5-2-2-5 is hard to see without looking at more than one week as it spills from one week into another. To illustrate let’s look at the Week 2, mom has Wednesday through Sunday; 5 days. Then, in the Week 3, dad has Monday and Tuesday; 2 days. Mom then has Wednesday and Tuesday; 2 days. Finally, in Week 3, dad has Friday through Tuesday into Week 4; 5 days. Note that both parents have equal weekends during the month.
This type of plan may seem awkward at first. Yet, in my experience parents really like it over other systems due to the equal time, equal number of weekends, and avoiding long stretches without seeing their child(ren).
Jake Eppler
Attorney
When a Registered Agent Refuses to be Served
When a company does business in Colorado it is required to have register agent to receive service. Service is the legal notice that is required for a court to bring an entity into a lawsuit. As such, every domestic entity that transacts business in the state of Colorado “shall continuously maintain in this state a register agent…” C.R.S. § 7-90-701. The purpose of the statute is to provide means of providing due process notice to an entity of a pending legal action. C.R.S. § 7-90-704(1).
Unfortunately, some business believe that they can avoid law suits by making it difficult or impossible to contact their registered agent. Often they list the wrong address with the Secretary or State or hide from process servers. This kind of behavior denies a party the opportunity to bring the entity before a court and escape legal liability yet to still transact business in Colorado.
Luckily, C.R.S. § 7-90-704(2) provides for service on an entity by alternative means when an entity’s register agent cannot be served or found.
“If an entity that is required to maintain a registered agent pursuant to this part 7 has no registered agent, or if the registered agent is not located under its registered agent name at its registered agent address, or if the registered agent cannot with reasonable diligence be served, the entity may be served by registered mail or by certified mail, return receipt requested, addressed to the entity at its principal address. Service is perfected under this subsection (2) at the earliest of:
(a) The date the entity receives the process, notice, or demand;
(b) The date shown on the return receipt, if signed on behalf of the entity; or
(c) Five days after mailing.”
Thus, a party can start their case by sending service by certified mail and get their case before a court and thwart registered agents attempting to avoid service.
Jake Eppler
The Rule of Lenity in Criminal Law
If a criminal law has ambiguous language, should it be interpreted in favor of the State or the Defendant?
In criminal law the Rule of Lenity requires the strict construction of criminal statutes. People v. Lowe, 660 P.2d 1261 (Colo.1983). Criminal laws are to be strictly construed against the state and in favor of the accused. United States v. Bramblett, 348 U.S. 503, 509–510 (1955). If there is doubt as to the meaning or application of a criminal statute, courts must presume that the legislature intended the least inclusive definition of the statutory language and resolve the doubt in favor of the defendant. McBoyle v. United States, 283 U.S. 25 (1931). The Rule of Lenity applies to both criminal laws and sentencing statutes. People v. District Court, 834 P.2d 236 (Colo.1992).
Thus, a criminal defense attorney must be diligent to read all statutes with a critical eye to find language that may potentially help their client.
Jake Eppler
“Harassment” in the Collections World
Whether you are the debt collector, or the one being collected upon, the Colorado Fair Debt Collection Practices Act (CFDCPA) articulates the rights and rules of the process. Below you will find the CFDCPA’s definition of “Harassment and Abuse”.
C.R.S. 12-14-106
(1) A debt collector or collection agency shall not engage in any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt, including, but not limited to, the following conduct:
(a) The use or threat of use of violence or other criminal means to harm the physical person, reputation, or property of any person;
(b) The use of obscene or profane language or language the natural consequence of which is to abuse the hearer or reader;
(c) The publication of a list of consumers who allegedly refuse to pay debts, except to a consumer reporting agency or to persons meeting the requirements of 15 U.S.C. sec. 1681b (a) (3) and section 12-14.3-103 (1) (c);
(d) The advertisement for sale of any debt to coerce payment of the debt or agreeing to do so for the purpose of solicitation of claims;
(e) Causing a telephone to ring or engaging any person in telephone conversation repeatedly or continuously with intent to annoy, abuse, or harass any person at the called number;
(f) Except as provided in section 12-14-104, the placement of telephone calls without meaningful disclosure of the caller’s identity within the first sixty seconds after the other party to the call is identified as the debtor.
-Christian L. Johnson
Corporal Punishment vs. Child Abuse
In the criminal context child abuse comes in a myriad of forms under Colorado law; C.R.S. 18-6-401. A Child Abuse charge can arise when a child is unreasonably placed in situation that poses a threat of injury, or being in the proximity of the manufacture of drugs, or simply injuring the child.
One defense to the charge of child abuse in the context of physical force can be found at C.R.S. 18-1-703, Use of Physical Force- Special Relationships. Under this statute the use of physical force upon another person which would otherwise constitute an offense is justifiable and not criminal under any of the following circumstances: A parent, guardian, or other person entrusted with the care and supervision of a minor or an incompetent person, and a teacher or other person entrusted with the care and supervision of a minor, may use reasonable and appropriate physical force upon the minor or incompetent person when and to the extent it is reasonably necessary and appropriate to maintain discipline or promote the welfare of the minor or incompetent person. C.R.S. 18-1-703(1)(a).
Thus, a parent can under Colorado law use corporal punishment when disciplining a child. However, the amount of physical force must be reasonable. Reasonable force is not defined-but at law it is generally viewed as the community norm. This were facts of a particular case create debate: is spanking reasonable; is spanking with a belt reasonable and so forth?
A second aspect of many child abuse cases is in conjunction with the criminal child abuse case the State may file a dependency & neglect case; pursuant to C.R.S. 19-3-102. These proceeding have different goals, but can also be very demanding on a family. This type of case is not a criminal prosecution handled by the District Attorney’s Office, rather, it is handled by the Department of Social Services with County Attorney’s Office prosecuting the case.
Jake Eppler
UCC Acceleration Clause Requirements Prior to Acting
If your contract or transaction falls under the Uniform Commercial Code and you have in your agreement what is commonly referred to as an Acceleration Clause, you still have the requirement of a good faith belief in impairment before accelerating payments or demanding additional collateral.
C.R.S. 4-1-309
A term providing that one party or that party’s successor in interest may accelerate payment or performance or require collateral or additional collateral “at will” or when the party “deems itself insecure”, or words of similar import, means that the party has power to do so only if that party in good faith believes that the prospect of payment or performance is impaired. The burden of establishing lack of good faith is on the party against which the power has been exercised.
-Christian L. Johnson
Equity Skimming of Real Property
There has been a lot of discussion recently about the exact requirements of the criminal charge of Equity Skimming of Real Property. It is a class 5 felony, and while the affirmative defense articulated in subsection 4 is somewhat complicated, the black-letter law of the charge is fairly straightforward.
C.R.S. 18-5-802
(1) A person commits the crime of equity skimming of real property if the person knowingly:
(a) Acquires an interest in real property that is encumbered by a loan secured by a mortgage or deed of trust and the loan is in arrears at the time the person acquires the interest or is placed in default within eighteen months after the person acquires the interest; and
(b) Either:
(I) Fails to apply all rent derived from the person’s interest in the real property first toward the satisfaction of all outstanding payments due on the loan and second toward any fees due to any association of real property owners that charges such fees for the upkeep of the housing facility, or common area including buildings and grounds thereof, of which the real property is a part before appropriating the remainder of such rent or any part thereof for any other purpose except for the purpose of repairs necessary to prevent waste of the real property; or
(II) After a foreclosure in which title has vested pursuant to section 38-38-501, C.R.S., collects rent on behalf of any person other than the owner of the real property.
-Christian L. Johnson
