September 13, 2010

Skipping a Court Date - Bad Idea!

www.gasperlawgroup.comFace the music today, or face something worse tomorrow—why you need to make your Court dates.

Question: “ I have a court date coming up. What if I just decide not to show up?”

Answer: “Bad idea. Really bad idea—unless you have a nice cabin deep in the woods.”

Regardless of the severity of the charges you face, from a parking ticket to a homicide case, the system has a response to anyone failing to show for court. In a nutshell, the more serious the initial charges, the harder the system will work to get you back, and the higher price you’ll pay for missing court. Let’s start with the light ones, and work up.

If you are charged with a simple traffic offense; say, speeding, you were likely issued a summons to appear at a certain time to address the charge. If you miss the date, the points will issue against your license by default, and you will still owe the fine and court costs. A warrant could issue by the court, so the next time you are contacted by law enforcement for any reason (maybe another ticket), you could be arrested on the spot, and be required to post a cash bond equal to the amount owed on the ticket to satisfy the debt you owed the court. Not worth it, was it?

In a misdemeanor case, generally a summons is issued. Once again, if you miss court, a warrant would likely issue, but this time an appearance bond would be set. You would then need to post the bond, either paying the full amount in cash, or through a surety, i.e. , a bail bondsman. The bail bondsman is paid a non-refundable fee by you, ranging from 10 to 20 percent of the face of the bond, in exchange for promising the Court that you will appear. If you miss court again, the bondsman has to pay the Court the full amount of the bond, but two things happen to you.

Continue reading "Skipping a Court Date - Bad Idea!" »

May 18, 2010

Colorado Court Criminal System Or - Gee, I Was Just Arrested on a Felony Charge, What Happens Next?

by Allen Gasper , the Senior Partner in the Gasper Law Group, Colorado Springs.

Step One:

A complaint is levied against the individual and the – now defendant – is either arrested or receives a Summons to appear in Court

Step Two:

The individual is charged with a crime which now constitutes the “arrest charge” prior to the individual’s appearance in Court.

Step Three:

After the initial advisement of the “arrest charges,” the defendant will appear in Court for the Filing of Charges – at which time the defendant is advised of the actual charges filed in the case. This may also be a “bond return date” – meaning the defendant has bonded out of jail and MUST appear in Court at the date and time specified. Failure to appear while on bond may cause the Court to issue a warrant for the defendant’s arrest and a Show Cause Order to the bondsman for forfeiture of the bond.

Continue reading "Colorado Court Criminal System Or - Gee, I Was Just Arrested on a Felony Charge, What Happens Next?" »

April 28, 2010

Pleading the 5th - Part II

Staff Attorney
Gasper Law Group, PLLC

The Basics: In the courtroom

We’ll start with the most classic examples, and work our way into some things you may not have thought about. For now, we’ll assume a criminal case has actually been filed by the DA, negotiations have not been fruitful, all pretrial issues have been determined, and now, your trial before a jury has begun. Do you testify in your own defense, or do you invoke your 5th amendment right to remain silent? Each case is different, and your attorney will advise you at every step of the way, but ultimately, you must make that choice. And during your trial, the judge will ask you personally which choice you have made. No one can make you testify if you’d prefer not to. Likewise, no one, not even your own attorney, the judge, or the DA, can prevent you from telling your side of the story to the jury if you really want to (but often, it could wind up being a very bad idea). Critical, tactical and personal issues will influence your decision (a topic for another day), but we’ll decide for this example that you don’t want to testify.

What happens? Remember, since the DA has the burden of proving you guilty, they must present sufficient evidence during the first ‘half’ of the trial to prove you guilty of the charge before your team (you, your attorney(s), and investigator or paralegal, if needed) has to present anything. Once the DA rests their portion of the case (likely consisting of eye witnesses, police officers, exhibits, and possibly expert witnesses), there will be a break in the trial for at least a few minutes. The jury will be excused from the room. Without you having to say a word, your attorney will be given the opportunity to argue before the judge that the DA’s case is legally insufficient to convict on one or more of the charges. Although it rarely occurs, if the judge does agree, you could then be acquitted by the judge on the spot, and the jury would not even get the case. Game over. This might occur if the DA was unable (or forgot, if you get really lucky) to present any credible evidence of an essential element of the charge; for example perhaps the DA showed that you were drunk at the time you were operating a motor vehicle (see CJA’s article), but failed to show it was in a public place. If it occurred on purely private property (and the DA must show that it did not), then you don’t even have to decide whether to testify or not. You go home. (Be careful celebrating your win afterwards!)

Continue reading "Pleading the 5th - Part II" »

December 26, 2009

YOGA BREATHING YOUR WAY THROUGH A CRIMINAL PROCEEDING

By Tonya Holliday
Sr. Paralegal
The Gasper Law Group

Yoga%20Breathing%20-%2012-26-09.jpg

If you’ve ever been involved in a criminal case, whether as a Defendant, victim or family/friend, you know it’s stressful. I am a criminal defense paralegal so I talk to hundreds of defendants, victims and family and friends every day. My advice is always the same: Take a hot bath (or soak in the hot tub); drink hot tea, not alcohol – it will get you in trouble; and to yoga breathe.

Studies show that by yoga breathing you release the pent-up toxins that build up in the body. Criminal proceedings produce high levels of stress because of many factors: interviews with police officers, court appearances, polygraph tests, fear of the unknown or even the known if you’ve been through the system before. These cases impact a person in all aspects of their lives.

Continue reading "YOGA BREATHING YOUR WAY THROUGH A CRIMINAL PROCEEDING" »

December 26, 2009

Pleading the 5th-What You Thought You Knew

Staff Attorney
Gasper Law Group, PLLC

Client: “ I was never read my rights”

Attorney: “And…………?”

“..nor shall (any person)be compelled, in any criminal case, to be a witness against himself;…” Amendment V of the United States Constitution.

Bill%20Of%20Rights%2012-26-09.jpg

You might think that this simple phrase would have long been settled in its interpretation and application in the criminal courts, Colorado and otherwise. Far from it. Its precise meaning has been a continuing source of scholarly and practical interpretation since its adoption by the original 13 colonies. As statutes change, as technology advances, as societal norms evolve, as police methods change, so must the Courts. All courts must ensure that this vital constitutional right is honored by any arm of government with the power to deprive a person of life, liberty or property. While the procedural interplay between the federal and state systems can become complicated, suffice it to say that the federal courts will impose this right in state court (i.e. Colorado) criminal proceedings.

Part I.

Read carefully the middle phrase. “in any criminal case”. Exactly what is meant by “criminal case”? Is it a trial? If so, does it apply to felonies only? Misdemeanors? Petty offenses, for which the only penalty might be a small fine? How about a parking ticket? Must the person have been formally charged for a “case” to exist? Must there be a judge involved? How about pretrial proceedings, such as motions to suppress evidence unlawfully seized? Post conviction matters, where the client is already placed on probation, or is reporting to a parole officer long after his case is concluded ‘in court’? What about administrative hearings (such as an attempt by the State of Colorado to revoke or suspend your driver’s license)? What if you’ve been subpoenaed to someone else’s criminal case, but could have to testify in a manner that could implicate you in criminal wrongdoing ( “yeah, I helped him break into the car”)? Does it matter whether you were subpoenaed by the DA or your friend’s defense attorney? Take it a step further; what if you’ve been subpoenaed to someone else’s civil deposition, but might have to admit you could not recall clearly the events because you had been smoking pot earlier that day—and you are already on parole? What if you are merely just under investigation, but nothing has been charged or filed in court? Not so simple, is it? We’ll take it slow.

Now, what does it mean to be “compelled”? In a pure court setting, what we’ll assume for our purposes is that a judge would otherwise have the power to order you to testify at a trial or hearing. If you refused, you could be fined, imprisoned, or both, merely based upon your refusal. In a police investigation, defining “compelled” is a lot more dicey, and is quite a bit more context specific. Suffice it to say, being hit by the police with a rubber hose in the interrogation room until you “talk” would qualify as being “compelled”. In our current legal environment, the police are actually far too professional to engage in such tactics. That was not always the case in our country’s history. That does also not mean they would not try, perhaps mightily, to encourage a potential suspect to provide a statement surrounding his involvement in a crime. Pushing the envelope is legal; violating someone’s rights is not. What is “compelled” vs. what is voluntary is not always easy to determine. That’s where an experienced practitioner can help.

Continue reading "Pleading the 5th-What You Thought You Knew" »

June 10, 2009

Criminal Defense - "That's Not My Handwriting" ... or is it?

The Handwriting’s on the Wall…….or Wherever ...

By Staff Attorney
Gasper Law Group PLLC

Handwriting%20Magnifying%20Glass.jpg

Client: “The bank doesn’t have any video of me at the window, so what can they do to me?”

Attorney: “Why don’t we go into my office to discuss this some more?”

Misconceptions abound about the use-and potential misuse-of handwriting analysis in order to prove or demonstrate a particular point in the courtroom. While entertaining, most TV shows, movies, and popular fiction shed little light on what is actually admissible in court, and for what purpose.

While there are a handful of forensic psychologists in the employ of the federal government who might offer fascinating insights into the mind of a serial killer based upon his writings, or how a particular kidnapper might respond to negotiation based upon a ransom note, the realities in a Colorado state courtroom are far more mundane.

The experts in this field work in the area of questioned documents, the purpose of which is generally to draw conclusions about the identity of the person preparing it, or the circumstances of its preparation. In all but a handful of cases, the personality or motivation of the person preparing the document is beyond the purview of the expert’s role in the case.

There are relatively few forensic document examiners in Colorado who work for law enforcement, most being in the employ of the Colorado Bureau of Investigation. These individuals undergo specialized training, serve a lengthy apprenticeship under a more experienced mentor, and likely belong to one or more organizations or societies of individuals in the field. They perform examinations in the lab, prepare reports of their findings, and testify as expert witnesses in court proceedings. So what does this all really mean?

One thing it could mean is that they could be called upon to offer an expert opinion as to whether a particular person signed a document, such as an allegedly forged check. The signature on the questioned check is compared to known samples of a person’s handwriting, and an opinion rendered on if the signatures were written by the same person. The known signatures can be other checks known to have been written on the account of the suspect, for example, or perhaps taken from the signature block of a contract.

If no good known samples exist, a defendant can be compelled by court order to provide exemplars of their handwriting for comparison to the original. These exemplars would simulate the conditions present when the questioned check was written, by offering a signature area the same size as the check, on similar paper, and used with a similar instrument (usually a ball point pen, but it could be a felt tip, fountain pen, or Sharpie, if that’s what the original was prepared with). Usually the writer is instructed to provide 10 or more signatures, and perhaps even a few left-handed ones for a right-handed writer.


Continue reading "Criminal Defense - "That's Not My Handwriting" ... or is it?" »

April 3, 2009

“And the Truth Shall Set You Free” - Criminal Defense and Polygraphs

By Staff Attorney
The Gasper Law Group

Question: “If I take a polygraph, is it admissible in Court?”

Short Answer: “No”

Long Answer: “It depends on the definition of ‘it’…….Really, I’m serious”

To correctly answer your question, I’ll make a few clarifications up front. First, we’re only discussing Colorado here, not other states, or the federal system. Secondly, unless noted, we’re discussing its use in criminal cases, not civil or divorce cases. Thirdly, this is not a dissertation on whether an employer, or the military, can require you to take one as a condition of getting or keeping a particular job or security clearance.

In a pending criminal case, or an open investigation, you cannot be required to take a polygraph. It is strictly voluntary. Most importantly, it is critical to distinguish the results of the exam (i.e. did the person pass or fail) from what was actually said to the operator during the exam. So here goes.

Polygraphs have been around in one form or another for a long time. Essentially, the test measures various physiological responses to certain key questions. Generally, this would include blood pressure, pulse rate, respiration rate, and skin conductivity, all of which can show slight deviations from “normal” if a person is under stress from lying directly to the operator. In theory, these indicators are distinguishable from the obvious overall stress the subject is already under as a result of being hooked up to the instrument in the first place.

The entire process will take at least a couple of hours. You’ll first give a narrative of your side of the story and then be given instructions on how to respond. You’ll be given certain control questions (“Have you ever told a lie?”--the correct answer is ‘yes’ to that one, unless you’re perfect) to compare your responses to the two or three ultimate, key questions you’ll be asked and tested on. It’s likely to be videotaped. While the instrumentation and techniques have changed with the times, ultimately there will be a conclusion by the operator that the person was deceptive to one or more of the key questions, or was truthful. Sometimes, the results come back as inconclusive, which means even the operator does not have an opinion.

The courts have concluded that the process is not sufficiently reliable to admit the results in a criminal court proceeding. If you took one and failed, the District Attorney cannot refer to that fact in any fashion in your trial. Nor can he mention that you refused to take one, or even use the word “polygraph” at all. This cuts both ways, however. If you took one and passed, you cannot tell the jury either (unless for some reason the DA and judge agree to let you--good luck with that). Nor can you tell the jury that you were perfectly willing to take one, but the DA and police would not even let you.

So why ever bother? It can still be an invaluable investigative tool for all concerned. In a close case, the DA might be willing to let you take one anyway, and factor in the results when deciding whether to proceed with a prosecution. To have it carry any weight with the DA (who has all the power in this situation), you’ll need to either go with a police operator, or one the DA will trust. If you pass, you might get a dismissal instead of the uncertainty of a trial, and if you fail, the results don’t come in anyway. Right? That’s where it gets tricky.

Continue reading "“And the Truth Shall Set You Free” - Criminal Defense and Polygraphs" »

April 3, 2009

“Trouble in Paradise” - Criminal Defense On The Road

By Staff Attorney
The Gasper Law Group, PLLC

Question: “I got into some trouble while in Colorado. As much as I enjoy the scenery and skiing here, I just want to go home to Texas (or Kansas, or wherever). When can I?”

Answer: “When Colorado and Texas say you can. Not before.”

Once you indicate a desire to move out of state, you are subject to the terms of the Federal Interstate Compact. In a nutshell, states are required to follow a uniform process when transferring a person’s probation to another state. If you have a felony probation (resulting from a conviction) the process is more formalized, and you cannot leave until you have been cleared to do so.

If you were a bona fide resident of Texas, and just got into trouble while here temporarily (say, on vacation, or a temporary business assignment), you will need to go to the local probation department in Colorado where you were sentenced, and ask for Reporting Instructions back in your home county in Texas. Generally, this process goes quickly- perhaps a few days-and you then are provided, in writing, specific instructions on which probation office in Texas to report to, whom you are to see, and when to show up. When you get these instructions, you are then free to go home, but you must still follow all conditions of your Colorado probation while in Texas. Not so bad, was it?

Let’s now say you got into trouble here as a Colorado resident, got probation, but now want to start a new life and relocate to Texas to serve your probation. Don’t pack your bags just yet. Even if your Colorado judge says it’s OK, that’s just one hurdle. You must put in a Transfer Request, once again to your local probation officer, specifying how and why you should be allowed to relocate to Texas (the state you wish to relocate to is known as the receiving state).

You’ll need a sponsor in Texas of some sort, who will vouch for your ability to find housing, maintain employment, and meet the terms of your probation. For example, if you have lost your driving privileges, you’ll need to show that you can get to work somehow, and legally. If you are required to take drug treatment, those services must exist where you plan to live, and you’ll have to be able to pay what is required.

Continue reading "“Trouble in Paradise” - Criminal Defense On The Road" »

March 17, 2009

Unforgiven - The Truth About Record Sealing In Colorado

By Caryn J. Adams
Managing Associate Attorney
The Gasper Law Group

Brace yourself. I’m going to give you the bad news right upfront: You cannot seal the records of a criminal conviction in Colorado. Can’t do it. Period. Colorado’s rules on sealing are limited to cases where charges were never filed in the first place, where all counts have been dismissed, or where the defendant has been acquitted.

“But my case was over years and years ago,” you say. “I successfully completed probation. I did everything the judge and the District Attorney asked of me. Surely there must be some way I can wipe my record clean?” Sorry, old criminal records never die… and they sure as heck don’t fade away.

On the other hand, there just might be some good news for you if you were granted a deferred sentence. A deferred sentence is a deal where you agree to plead guilty and the District Attorney agrees to put off your sentencing for a period of time, up to two years in misdemeanor cases or four years in felony cases. Then, if you complete certain terms and conditions (substance abuse treatment or domestic violence counseling, for example) and stay out of trouble in the interim, at the end of your period of deferment all charges against you are dismissed. In such cases, the District Attorney may sometimes ask you to waive (or give up) your right to have your case sealed, but if not, congratulations, you’re eligible for sealing.

Continue reading "Unforgiven - The Truth About Record Sealing In Colorado" »

November 20, 2008

A Criminal Defense "Honey" of a Deal

By THE GASPER LAW GROUP

Although the Gasper Law Group specializes in Criminal Defense and Divorce and Family Law, I have worked in varied fields of law with a multitude of clients. While my past clients may have varied, one thing remained constant, my attitude to that client's case and my approach to opposing counsel. You see, I have one motto in my approach with opposing counsel, whether that be a district attorney or a private attorney, and that motto is, "you catch more bees with honey than you do with vinegar." This motto has served me well, both in private practice and in the government sector and has helped me secure the best deal for my client.


Honey%20Pic.jpg


In Colorado Springs, this motto became patently apparent, recently, as I practiced as a district attorney for the El Paso County District Attorney's Office. An example would include when a pro se defendant would approach me regarding a plea bargain in his criminal case. Oftentimes, this pro se defendant, naturally upset about the position he would find himself, which included staring down the barrel of straight jail time for a DUI, Domestic Violence, or some other criminal issue, would let that frustration boil over. When that frustration came to a head, the defendant would take it all out on me. Once that happened, you could guess how I reacted to that frustration. Did I take pity on the defendant? Did I give him the best plea offer I could? No way Jose. I would give that defendant the worst plea bargain I could legally get away with. Why? Because attitude means everything!

The same was true in private practice. If the opposing counsel yelled, cursed and made me feel insignificant or foolish, I would rarely give him what he wanted. The same was true on the other side. If I ever became rude or angry to the opposing counsel I would rarely get what I was seeking. That is why I started, many years ago, with an attitude where I am polite, agreeable and congenial with my opposing counsel, whomever they may be.

Continue reading "A Criminal Defense "Honey" of a Deal" »

October 22, 2008

Colorado Springs Criminal Defense Game - Spot The Violation, Take A Shot

I don’t really like watching legal shows on television. I don’t enjoy legal shows for the same reason many medical practitioners dislike “House”: they get everything wrong. Wrong legal decisions, wrong procedure, wrong ethics. Take last night’s episode of “Raising the Bar,” the new legal drama on TNT, for example. Every other minute one of the attorneys was committing a new ethical violation, without apparent consequence. Prosecute someone you don’t actually think is guilty? No problem. Trade away one client’s constitutional rights to benefit another client? Why not? Play a judicial role in your lover’s criminal matter? Yeah, okay, even the characters thought that one was taking it all a bit too far. While all that drama might make good material for a drinking game – spot the violation, take a shot – it creates frustrations for the practicing attorney.

Like it or not, people come into the real judicial system with expectations created by popular entertainment. Usually those expectations are way off base. As a deputy district attorney in the past and as a criminal defense attorney more recently, I’ve had to sit across the table from a victim, a witness, or someone accused of a crime and dispel those false expectations. And it ain’t easy to convince someone they don’t know what they “know.” You know?

For example, how many times has someone said to me, “The police officer didn’t read me my rights. Can I get my case dismissed?” Can you get your case dismissed? Well, maybe, but probably not, lots of emphasis on “probably not." It seems like every arrest on TV involves the officer reciting the suspect’s Miranda rights as he slaps the handcuffs on. Real life usually goes a little differently. According to the Supreme Court, the police do not have to read you your rights unless you are in custody and they intend to interrogate you. That means if you talked to the police out of custody – say, standing on the side of the road or at a friend’s house, for example – they don’t have to tell you that you have the right to remain silent. (Incidentally, if you don’t know by now that you have the right to remain silent, I suspect either you’re a recent immigrant or else there’s no hope for you). Also, if the police arrest you and don’t care to hear your side of the story, they don’t have to read you your Miranda rights as they haul you off to jail.

Continue reading "Colorado Springs Criminal Defense Game - Spot The Violation, Take A Shot" »

June 12, 2008

Criminal Defense - An Attorney Checklist

By Robert R. Gray
Sr. Paralegal and Office Administrator
The Gasper Law Group

Take a look at any phone book ... there are hundreds of attorneys from which to choose! There are also a number of attorney locator sites on the web such as Attorney Find or Attorney Locate. Once you find a list of criminal defense attorneys in your area, the question becomes "How do I choose a quality defense attorney?"

There are several criteria that one might consider and these are in no particular order:

1. Experience - Some of the more obivous questions to ask are; "How long has the attorney been in practice?" "How long has the attorney been in the particular jurisdiction?" "What kinds of cases has the attorney handled?" Questions like these will give you a basic idea about the attorney and about the firm. However, a question that one might not think of asking is "How often is the attorney in court?" If the answer is less than 20 to 30 times a week, this may speak to the attorney's ultimate experience and his or her ability to understand the people and the procedures involved in the system. Frankly, this one question will speak volumes about the attorney's savoy in the courtroom and around the courthouse.

2. Price - This is always one of the defining issues, yet it may be the one thing that is of the least important. What should really be considered is the "cost" and not the "price". The difference is significant insomuch as not having an attorney may "cost" much more than paying the "price" to have quality representation. Additionally, many firms, like ours, offer payment plans that can ease the burden on defendants and their families.

3. Win-Loss Record - "What is the attorney's winning percentage?" In Criminal Defense this question is one that needs more of an answer then just numbers. On all the TV law shows, the defendant is either guilty or innocent ... and by the way, it all happens within an hour after his or her arrest! The real criminal defense system is much more lethargic, could take several months or even years to finish a case and a "win" could very well be "plea to a lessor charge" or "plea to a deferred sentence". So instead of asking the attorney about his "win-loss" record, it might be better to ask if his or her clients are generally happy with the results and if he or she gets lots of referrals!

4. Consult Fees - Some attorneys charge a "consult fee" for you to see them initially. Personally, this seems a little odd. I don't know what I'd do if I went to a car lot and the salesman approached me and said, "see that car with the tarp over it ... if you give me $150.00 I'll remove the tarp and tell you about it" ... well ... I'm afraid I want to "kick the tires" before I buy. If an attorney charges a consult fee, it may be that they are very good and just don't have time to see potential clients that aren't "serious" about hiring them. On the other hand, it may be that they need to pay their office rent!

Continue reading "Criminal Defense - An Attorney Checklist" »