Colorado Springs Criminal Lawyer Blog

By Caryn J. Adams
Partner and Attorney
The Gasper Law Group, PLLC

Why would a guilty man faced with the certainty of a long mandatory prison sentence hire a lawyer? Why would he do so if he had confessed everything about his crime to the police? If there were no holes in the District Attorney's case against him? If he had no hope of "beating the rap"?

First, a case that appears hopeless may not be. A good defense attorney is trained to look for any weakness in a case, especially weakness that someone with less legal experience might overlook. For example, was that confession taken in a manner that meets Constitutional muster? Did the police commit any Fourth Amendment violations in their investigation? Does the evidence gathered meet the strict elemental requirements of the statute? If drugs were seized, were they tested? Was all laboratory work done correctly? As one of my clients recently put it, "If the District Attorney is going to hold a gun to my head, I'd like to know if it's loaded."

But let's assume for a moment that the experienced criminal defense attorney examines the evidence and determines the case is airtight. What then?

I am convinced even cases that may appear hopeless can benefit from negotiation with the District Attorney. Given the number of cases filed every year, the District Attorney simply cannot try every single one. Very few people indeed are prosecuted to the “fullest extent of the law.” The resources are just not there. About ninety-five percent of all criminal cases are resolved through the plea bargaining process. This obviously includes a vast number of cases where the person accused is, in fact, guilty.

Continue reading "Negotiation with a Gun to Your Head." »

Authored by Staff Attorney
The Gasper Law Group, PLLC

As a child, when I was really out of line, my parents would occasionally spank me. No doubt I deserved it often, probably far more than I was actually spanked. My parents always explained why it was that I was being spanked, and used an open hand to my buttocks. It was always done in love, but no doubt sometimes it hurt to sit down afterwards.

Through the years I have met numerous friends that were also punished with physical discipline. A couple of my favorite stories involved grandparents that, when my friends were out of line, would make them go into the woods to choose with which switch they wanted to be spanked. This was apparently a difficult decision. A thinner stick may leave a thinner welt, but would travel much faster and could sting more. Whereas a larger stick would leave a bigger welt, but the thickness of it prevented it from striking so quickly. No doubt, such use of switches for physical discipline of children seems archaic now to many people. Yet, my friends seem to have turned out quite well despite it and are even thankful for it.

However, in this day and age of the nanny-state knowing better than parents, local officials’ seemingly constant belief that they know best, and mandatory reporting requirements of virtually anyone that is paid by the government and works with children to report anything that could be potential child abuse, things are no longer so simple. Ironically, in an age where children are more and more incorrigible and undisciplined, the government works to limit traditional methods of instilling discipline and values in our children. For many, there is a narrow list of acceptable ways to discipline children. If you stray outside that list, or discipline in any way that can be considered strict, you are out of line and must be punished. And unfortunately the system is certainly not consistent in what is worthy of punishment.

Continue reading "Parenting and Discipline - Can I Spank My Kids?" »

By Staff Attorney
The Gasper Law Group, PLLC

As a Criminal Defense Attorney, this is a question that I hear often during initial consultations. It’s a reasonable one. After all, no one wants to spend lots of money on a lawyer if he or she doesn’t have to do so. And in this economy who has money to waste?

The question puts me in a difficult position. How do I answer? I do not want the potential client to think I’m overstating the need for an attorney just so he or she will hire me and my firm, but I also need to speak the truth. The truth is that yes, you need an attorney! Whether you hire the Gasper Law Group or someone else, you need to hire someone.

The first and foremost reason is the obvious one: you are not an attorney. This is not a bad thing. (Even attorneys acknowledge that there are reasons for lawyer jokes.) However, criminal law is a complicated area that is as much art and experience as it is book knowledge. Criminal cases carry far reaching (and often surprising) repercussions. They can result in loss of a driver’s or professional license, jail time, probation requirements, substance abuse therapy, trouble finding a job, or even a prohibition from carrying firearms. To use a common example, if you have a leak under your sink, you call a good plumber. If you need to face the weight of the Colorado legal system, call a good lawyer.

There is no magic in criminal law, but an experienced criminal attorney can quickly see what a layperson never will. When reviewing the facts of a case, an experienced attorney immediately works through a laundry list of questions. Was the contact proper? Was there probable cause for the officer to request a blood or breath test or to make an arrest? Was the expressed consent advisement proper? Do the facts as alleged actually match the elements of the crime? Was the damages calculation done correctly? Are the suspect’s admissions admissible in court? Can the case be tried without the cooperation of the victim? Is the offer from the District Attorney a good one or unreasonably harsh?

Continue reading "It’s Not a Felony or Anything, So Do I Really Need an Attorney?" »

By Staff Attorney
The Gasper Law Group, PLLC

In the modern age, most Americans rely on social media to stay connected with friends and family. Social media is an outlet for personal expression and often people post their deepest fears and secrets for the world to see. Unfortunately, sometimes the ease of using social media outlets for self expression leads to posting items that might best be kept private. Job recruiters warn employees entering the job market against posting items that could influence prospective employers. Politicians and celebrities have lost credibility and careers over items posted on social media sites. Just look at the controversy currently surrounding New York Congressman Anthony Weiner who allegedly sent out a Twitter stream with a lewd photograph attached. Regardless of the outcome of any investigation into how the incident occurred, Mr. Weiner’s career will be forever linked with this allegation.

While these incidents are well documented in the American mind, what many people do not consider is the impact social media can have on pending litigation. In the domestic litigation arena, when the mud starts flying in the courtroom, postings on websites can come back to haunt a party to a case. Items posted on a Facebook or My Space page can be used to show that someone is an unfit parent. Postings disparaging the other parent can be used to demonstrate threats or an inability to foster a loving relationship between the children and the other parent (an important consideration for the Court in determining which parent should have the majority of parenting time with the children.) Bragging about purchases like new cars or partying can come up in litigation to show that a party isn’t obeying Court orders not to use marital assets during a divorce.

Continue reading "Facebook and My Space and Twitter, Oh My!" »

By Tonya L. Holliday
Senior Paralegal
The Gasper Law Group

This was the recent headline in the Casey Anthony jury trial. So you’re asking yourself, “If she’s innocent, why wouldn’t she want to testify in her own defense?” Casey Anthony was accused of murdering her child, Caylee. One might think if she was innocent she would want to shout it from the rooftops instead of sitting stoically next to her attorney as he stands in front of those jury members and says, “The defense rests.” However, there are several good reasons why defense attorneys may counsel their clients to not testify.

In preparing for a jury trial an attorney and the Defendant need to discuss the pros and cons of having the Defendant testify. For instance, if the Defendant has prior felonies he or she may not want to testify and have prior convictions used against him or her. Typically in criminal cases, the jury will not hear about a Defendant’s former felony convictions unless the Defendant takes the stand. There are other good considerations as well: Is the circumstantial (non-witness) evidence presented by the prosecution strong or weak? Will the testimony of the Defendant have any weight in deciding guilt or innocence? Is the Defendant credible and likeable? Defense attorneys want the jury to like their client, to sympathize with him or her, and understand the situation as presented by the defense. Sometimes, although certainly not always, that goal is better achieved by the Defendant’s silence.

If the Defendant has multiple cases – an open domestic violence case, a divorce case and a restraining order case for example – the Defendant and his attorney may not want him to testify where statements made in one case can be used to impeach the Defendant in one of the other cases. A Defendant might not want to make a statement in the Permanent Protection Order Hearing, only to have the opposing party get a copy of the transcript to use against him in the domestic violence case.

Whether or not to testify is a decision that must be decided on an individual case basis. Each Defendant must decide this with his or her attorney based on several factors which may be determined at trial (e.g. a last minute decision based on the progress of the case) or can be decided in advance depending on the circumstances of the Defendant’s case.

By Mark C. Cohrs
Senior Investigator
The Gasper Law Group

The average law abiding citizen will likely have very few occasions to interact with the police. One of the most common occasions will probably occur because you committed a traffic violation, or because you became the victim of a crime or a perceiving eye witness to an incident. In the latter cases, the police will typically interview you about particular details of the event that are professionally referred to as the six essential elements of information; Who, What, When, Where, Why and How. This process is generally referred to as an interview, although some procedures simply involve the process of you writing out a statement about what happened.

In the case of the traffic offense, the seasoned officer will cleverly elicit an admission of wrong doing by asking “Do you know why I stopped you?”, to which you will probably feel compelled to answer something to the effect of “I was speeding” or “I didn’t come to a complete stop at the stop sign.” Human nature seems to cause us to believe that admitting the offense will dissuade the officer from issuing the ticket. Where that may work on some occasions, your admission will more often be documented in the officer’s affidavit in the same quotation marks as written above.

Continue reading "When you have the right to remain silent, but not the ability!" »

By Sean N. Young
Paralegal
The Gasper Law Group

As a criminal defense paralegal, it’s my job to take care of many of the little things that happen in between court appearances. While the attorneys are negotiating with the DA in and out of court, I might be performing some other task that a law degree does not require. I might help a client get in contact with an alcohol education provider, or I might draft a Motion to Appear by Telephone for client that lives out of state, and might be financially unable to travel back to Colorado for a given court hearing. Among all the things I do, probably the most frequent thing is answer any non-legal questions (or at least find the answer) that a client might have.

A criminal case can be a very stressful process for a client and their family. The outcome is not always favorable and if the defendant suspects this, they might just want a sentence sooner than later, just to get it over with. (I can confidently say however, that the outcome of any given case is almost always more favorable with an attorney’s help than without it). Clients often ask me when their case is going to get dismissed, or whether the next court appearance is going to be the last. The best way for me to describe a criminal case is that you have to think of it as a marathon, and not a sprint.

We all understand how stressful the process is, but as a defendant, you must have endurance for the race; you must be the tortoise, not the hare. Everybody knows the story: the slow moving tortoise beats the speedy hare. The process takes time and you must have patience. You never know what piece of evidence, or key witness might step forward and turn the case in a completely different direction. When our attorneys meet with a potential client, they will always tell the client that the most important thing to look for in an attorney (beyond competence in the subject matter) is someone the client can trust. It is the attorney’s job to keep you in the loop as to what is going on in your case, and they will not make serious decisions without advising you on the likely or probable outcome first.

Continue reading "A Paralegal's Tale - Patience, My Friend" »

By Caryn J. Adams
Managing Partner - Criminal Division
The Gasper Law Group

The Supreme Court recently handed down its decision in the Kentucky v. King case in an opinion written by Justice Alito. The vote was 8 to 1. The case will stand for the proposition that law enforcement may rely on exigent circumstances to enter your home even if they don’t have a warrant and even if the actions of law enforcement contributed to or caused the exigency. Generally, the Fourth Amendment of the U.S. Constitution prevents the police and their agents from entering a person’s home without (1) a warrant, (2) consent, or (3) “exigent circumstances.” Exigent means pressing or demanding, so exigent circumstances are those where the situation does not allow law enforcement to wait for a warrant. Traditionally, legally recognized exigencies fall into three categories: (1) the police are pursuing a fleeing felon, (2) there’s a risk that evidence will be destroyed if the police wait, or (3) there’s an emergency where someone’s life is or could be at risk.

Continue reading "Your Castle Under Siege: When the Police Can Enter Without a Warrant" »

By Staff Attorney
The Gasper Law Group, PLLC

What do the words Domestic Violence mean to you?

I’ve found that most people think of Domestic Violence as involving very bad people that physically brutalize defenseless victims. Personally, I think of the movies Slingblade and Enough. Those movies featured dark antagonists that shamelessly controlled and severely beat their victims. As one might expect, however, Hollywood’s portrayal of Domestic Violence misses the reality mark.

Domestic Violence is defined in Colorado Revised Statute 18-6-800.3 as follows:

(1) "Domestic violence" means an act or threatened act of violence upon a person with whom the actor is or has been involved in an intimate relationship. "Domestic violence" also includes any other crime against a person, or against property, including an animal, or any municipal ordinance violation against a person, or against property, including an animal, when used as a method of coercion, control, punishment, intimidation, or revenge directed against a person with whom the actor is or has been involved in an intimate relationship.

(2) "Intimate relationship" means a relationship between spouses, former spouses, past or present unmarried couples, or persons who are both the parents of the same child regardless of whether the persons have been married or have lived together at any time.

Continue reading "Domestic Violence - Not Always "Violent"" »

By
Tonya L. Holliday, Senior Paralegal
The Gasper Law Group

Have you ever wondered about the people you see on Dog the Bounty Hunter or people being arrested on COPS?

Well, once they are arrest and processed into jail a bond, otherwise known as bail, is either granted or denied based on several factors: the charge, employment history, residence, standing in the community, criminal history, just to name a few.

I recently had lunch with an office manager for a local bondsman and she enlightened me about their requirements. The requirements for using a bondsman to bail out of jail are based on the charge and the bond amount.

For instance if you have a bond of $100,000 you would need a percentage of that amount up front and a homeowner or business owner to co-sign and put up collateral for your bond to ensure you will be in court at every court hearing. If it’s a bond amount of $5,000 you would need a percentage of that up front and that’s it.

If you are on bond there are certain conditions that are required. You must have permission from the court and your bondsman to travel out of state. You must get consent from your bondsman to stay on bond between certain hearings. The bondsman is required to know where you are at all times. They usually have “bounty hunters” they employ if you miss court.

It's important that you check with your bondsman, and attorney to make sure you are doing everything that is required of you.

By Allen C. Gasper
Senior Partner
The Gasper Law Group

I’ve Been Charged, Now What?

During my years of practice in the criminal court system, I have been amazed constantly at the number of clients who have taken the time to seek legal advice, attend an initial intake appointment and spend time discussing the specific aspects of the case, only to ignore totally the advice given by the professional they spent time trying to locate. I find this amazing because it appears the client has convinced themselves that if the word is not spoken, if the possibility of culpability is not discussed, if the “less favorable” facts are not revealed, reality will conform to the client’s desired outcome. Not only is this foolish, it is often the most dangerous of paths, fraught with obstacles which may never be overcome.

It is generally accepted that individuals who find themselves exposed to potential liability for mistakes, errors in judgment or criminal charges determine that the best road is to do everything possible to present themselves in the best light available. While this may allow the individual to “sleep better” at night, it does not remove the circumstances which created the desire to shield themselves in the first place. Additionally, playing the “if I don’t acknowledge it, it will go away” game will only serve to waste precious time in preparation of a case which might be negotiated successfully utilizing the truth. So, what do you do when you visit an attorney for the first time after having been charged with a crime?

1. Be Honest. Believe me, your case is not the first of its kind. In fact, the chance a seasoned criminal attorney has seen your type of case before is overwhelmingly on your side. Attorneys are very busy and no one wants to chase the rabbit down the rabbit hole, simply because someone has made the decision to live in Alice’s Wonderland.

2. Don’t Tell Every Lawyer Your Story. Attorneys love to give advice. It’s what we do. We’ve been trained to do it and we love to share the fact we believe we are right with everyone we know. Not necessarily fun at the cocktail party but it is what every client seems to desire in the quest to feel better about the situation in which they have found themselves. It is my experience that potential clients are seeking that “feel good” experience during the initial intake and they will “cherry pick” all of the good stuff, ignoring the bad. The danger in telling your story to every lawyer you visit is that you will subconsciously incorporate the good advice of the lawyers visited into the story until it will be virtually impossible to remember the facts of the actual event when the desired lawyer is chosen. A seasoned criminal defense lawyer will wait until he has reviewed the District Attorney’s file thoroughly prior to debriefing the client on his version of the facts. The more accurate the client’s version of the facts – in light of the evidence presented in the DA file – the better chance the defense attorney has in developing a strategy to “counter-punch” the prosecutor’s already jaded view of the incident. Remember, sometimes the DA and police detectives have had been developing their version of the incident for months prior to turning their sights in the client’s direction.

3. But, if I am honest, I will certainly be found guilty. Not necessarily. Remember, just because the incident actually occurred, doesn’t mean there is no avenue to lessen the responsibility that might be pushed in your direction. As an example, someone who commits a homicide may be completely justified depending on the facts presented. Self-defense? Possibly, but not readily recognized by the attorney if the justification for the client’s actions is hidden by the client’s misrepresentation of the facts during the initial stages of the case’s preparation. Further, the client compromises his own credibility when it appears the “story” has been changed in order to accommodate a potential defense.

Continue reading "FINDING A LAWYER, INTERVIEWING AND CHOOSING YOUR DEFENDER" »

By Robert R. Gray
Firm Administrator
The Gasper Law Group

“I’m innocent and I shouldn’t have to pay for my legal defense”. “It’s just not fair”.

So, this is just my opinion… but after being involved in the system for over a decade, I truly believe that we have a “Legal” system and not a “Justice” system. I guess it would be a little strange to end the Pledge of Allegiance with “ … with Liberty and Legal for All.” However, it is often times a reality that there is no “Justice” in our “Justice System” when an innocent defendant has to pay significant costs for hiring a lawyer to defend him or her without the ability to recover those expenditures.

Regardless of the innocence of the defendant, the cost of legal representation is tremendous. Like I often tell potential clients, “I bet this wasn’t in your budget!” Especially in these difficult economic times, the cost of a Criminal Defense Lawyer is often a burden that defendants and their families have trouble coping with.

OK … so what’s my point? Well, I guess it’s time to brag a little. You see, I have the honor of working as the Firm’s Administrator for a Criminal Defense, Domestic Relations, and Civil Law Firm that has as one of its mottos “helping people first”. That is, at the Gasper Law Group, we understand that the cost of legal services is very expensive and most often not a consideration in one’s budget. It’s why from the inception of the firm, Allen C. Gasper, the firm’s Senior Partner, made the statement that we would do whatever we could to ease the cost burden of hiring an attorney.

This philosophy has made it so The Gasper Law Group has some of the lowest retainers in the business, work out individual payment plans; payment plans with ZERO INTEREST, has set low Flat Fees for Criminal Defense, and works with clients to assist them in affording the very best in legal representation at a cost that the average family can afford. It’s why attorneys at The Gasper Law Group do not “talk money” with clients. They are truly all about “helping people first” and when you are talking to an attorney at The Gasper Law Group, they are talking to you about your matter; their only worry!

Continue reading "Our Criminal Defense System - A Costly Endeavor" »

By Mark C. Cohrs
Chief Investigator
The Gasper Law Group

As an employee of a reputable law firm, I often get to witness the interesting dynamic of certain clients who refuse to follow the professional advice for which they pay. Some clients tend to only consider advice that is immediately favorable to them, regardless of the potential impact to their case. It sometimes seems as though they adopt the doubting nature of a child who is told to not touch the hot stove top. In the case of the doubting child, the detrimental result is instantly realized, which is not always the case in the criminal justice system. The stinging effect in legal situations may not surface for an extended period of time, but they need to hang on when it does.

Clients faced with domestic no contact orders often reconcile with the protected person, with total reliance on the belief that nobody will ever know. Those couples often manage to experience relationship bliss until, you guessed it, a disagreement ensues. From there it only takes a phone call to the authorities to enact that long arm of the law
.
I often wonder if the decision to ignore the advice is made out of an arrogant belief that they know more than the lawyer. In comparison, I was recently involved with the process of guiding a group of horseback riders over a fairly treacherous creek crossing. The most experienced of us collectively selected a spot that had previously proven to be the safest of locations to cross.

However, several of the impatient riders failed to remain as riders when they were rapidly ejected as they chose to attempt to cross at a different location. I found this to be similar to the process of assisting clients with the decision to enter into a plea agreement instead of risking a trial in front of twelve strangers. In most cases when the evidence suggests a strong likelihood of conviction, our advice will generally lean towards achieving the best guaranteed result for the client.

Continue reading "Following Expert Advice in Criminal Defense Matters" »

By Ericka L. Gasper
Criminal Defense Paralegal
The Gasper Law Group

When I entered the fast-paced world of the paralegal at the Gasper Law Group approximately three months ago, I expected to learn new and fascinating things about the law and the American justice system every day. Of course, this meant that after about 6 months, I would be completely well versed in everything legal, and ready to open my own law practice by December. Sadly, it does not appear that this prophecy will be fulfilled in what I deemed an acceptable time frame.

After working for a short time in family law and now settling in the criminal division, I have discovered some crucial concepts that are often overlooked when one finds oneself in the stressful situation of appearing before the court. I thought I would share this newfound knowledge.

1. The police never think it’s as funny as you do. Sure, we’ve all pulled practical jokes, many of which have gone awry. Sure, we’ve had those moments when, despite the fact that the calendar puts our age over thirty, the suppressed high school teenage mindset takes over. While it may seem entertaining to party like a college student well into one’s adult years, the police do not generally appreciate the humor in the situation. In the end, their opinion is the one that counts.

2. Restraining Orders are not “suggestions.” Generally speaking, when a judge issues an order, he or she means it. As such, when a No Contact Order or Permanent Restraining Order is in effect, a strong desire to tell the other party something funny that Uncle Vernon said last week, or let them know about the new sprinkler system that was just installed, must be overcome.

3. Dress codes do not end after high school. Anyone who says that first impressions are meaningless is living in an alternate reality. When appearing in front of a judge for the first time, one must keep in mind that this person has the power to decide your fate. Thus, showing up like it’s a spirit day in junior high (pajama day, 80’s style day, crazy hair day, etc.) is probably not the best plan. Showing up in a sports bra and gym shorts (yes, I’ve seen it) will not demonstrate the same deference that, say, a suit and tie would. Aretha had it right – it’s all about R-E-S-P-E-C-T.

4. Your attorney knows more about the law than you do. It is always a bit baffling to me how many people come in telling the attorney how to handle their cases. Unfortunately, watching “Law and Order,” “The Practice,” and “Boston Legal” is not the equivalent of a law degree. In reality, the courtroom is not scripted. A small piece of advice: Hire a lawyer you feel you can trust, and then trust him.

5. Hollywood star treatment does not apply to everyone. Mel Gibson. Charlie Sheen. OJ Simpson. Wynona Ryder. I constantly hear the argument that “They got off with just a slap on the wrist… I should too!” Yes, it’s sad that there may appear to be a double standard in the way that Hollywood celebrities are treated when it comes to justice. Wrong? Probably. Still, it is important to remember that one cannot go into the courtroom ready to plead “Lindsay Lohan.” Accept it… move on.

Continue reading "Appearing Before The Court - Dress Codes?" »

By Caryn J. Adams
Partner and Managing Attorney
The Gasper Law Group

Drug Cases: Different Rules for Sealing

To every rule, there is an exception. To the rule that no conviction may be sealed, the exception is criminal conviction records for some offenses involving controlled substances. Pursuant to C.R.S. 24-72-308.5, as of July 1, 2008, a person may petition the court to seal the conviction records for drug offenses at the petty, misdemeanor, or class 5 or 6 felony level. There are, as you might expect, several conditions to be met:

1) The petition has to be filed no sooner than ten years after the final disposition or end of probation, whichever is later; and

2) The petitioner cannot have been charged or convicted for any criminal offense in the intervening ten years; and

3) For convictions entered before July 1, 2008, the district attorney must consent to the sealing of the records.

There are also limitations concerning the types of drug offenses that are subject to sealing. A conviction for a class 5 or 6 felony for the sale, manufacturing, or dispensing of a controlled substance (or conspiracy, attempt, or possession with intent to do any of the above) cannot be sealed. What does that leave at the felony level? Pretty much, it leaves simple possession or attempted possession.

Finally, petitions to seal brought under C.R.S. 24-72-308.5 are more limited in scope than petitions to seal brought under C.R.S. 24-72-308. For one thing, sealing the conviction records does not vacate the conviction. This means that the conviction can be easily unsealed and used as a prior offense in any subsequent prosecution for similar charges. The conviction sealed under this subsection may also be used by a criminal justice agency, law enforcement agency, court, or prosecutor for any lawful purpose. The conviction will also show up on criminal history records checks that are required by law. In fact, the only real benefit to having your drug-related conviction sealed under this subsection is that it allows you to tell private employers, landlords, and some local and state agencies that you have not been criminally convicted and prohibits them from requiring you to disclose and information concerning the sealed conviction records.

Continue reading "Sealing Your Record - Drug Cases" »

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!" »

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?" »

Bill Edie
Attorney with the Gasper Law Group

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" »

By Tonya Holliday
Sr. Paralegal
The Gasper Law Group

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" »

Bill Edie
Attorney with the Gasper Law Group

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.

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" »

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

By Bill Edie, Attorney for the Gasper Law Group

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?" »

By Bill Edie
Attorney at Law
The Gasper Law Group

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

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" »

By Bill Edie, Attorney at Law
The Gasper Law Group

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" »

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" »

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.

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" »

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" »

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" »