June 26, 2017

Archives for October 21, 2016

The Addicted Lawyer: Is Alcoholics Anonymous For You?

Editor’s Note: This article originally appeared on Above the Law on October 14, 2016. Reprinted with permission.

If you or someone you know is struggling with addiction, please get help. The Colorado Lawyer Assistance Program provides confidential assistance — call (303) 986-3345 or visit coloradolap.org

briancuban-e1473974781722By Brian Cuban, Esq.

April 2007. I walk up to the door of the building where area Alcoholics Anonymous (AA) meetings are held. My family is pushing hard for in-patient treatment but I refuse. My psychiatrist feels that a trip here is the first step to long-term sobriety. Lucky for me, the building is right next to his office. If it hadn’t been convenient, I might have just made excuses to not go at all. For an addict, excuses are often more plentiful than reasons for recovery. The present is more important than the future — the present of the high.

After pacing around outside the doorway for a long time, I finally peer down the long hallway into the room where people are gathering. I’m afraid of being recognized. My ego is still paramount in my worries. “I’m a lawyer. There are no lawyers in in AA or treatment. My one client left needs me!”

My mind flashes back to one of my favorite childhood movies, Willy Wonka & the Chocolate Factory. I suddenly imagine that as soon as I enter the meeting room, I’ll be carried away by a team of chanting Oompa Loompas determined to punish me for my bad habits. I have no desire to meet the Oompa Loompas on the other side of that door.

I finally walk down the hall into the meeting room, and I can smell the fumes of stale cigarette smoke and day-old coffee. My eyes lock onto the 1950s tile floor, ingrained with the dirt of countless feet. There are other people milling around in room. Are these the people with whom I was supposed to share my darkest secrets? Would I be made fun of, teased, or insulted? Who are these people? Skid row bums? That’s my perception of AA. I think of Nick Cage’s character, Ben, living in the sleazy “no-tell motel” as he drinks himself to death in Leaving Las Vegas. Dick Van Dyke’s character, Charlie, drunk, alone on the beach with no future in The Morning After.

Deep breath. Don’t look around. Eyes down at the floor. That fixed point. Watch the feet move forward. One baby step at a time to a waiting chair. It’s the way I’m able to accomplish things in life. It’s how I was able to finish eight marathons. Facing any difficult task, my best self is that part of me that can place one foot in front of the other until a goal is accomplished. Don’t look left. Don’t look right. Don’t think about the finish line. I sit down. I listen. I cry. At the end of the meeting, I take a desire chip. The most important journey in my life begins.

As you have probably figured out, I got sober in Alcoholics Anonymous. I know I am irritating some who believe we should not talk publicly about being in AA. I believe we should be empowered to share all aspects of our personal journey if we choose to. I find it perplexing that we as attorneys in recovery, who spend our lives engaged in critical thought and using data, will exclude AA from that process as if there is some magical healing power to not discussing both its benefits and flaws when there is no empirical data to support the notion that talking publicly about being in AA, then relapsing publicly, will cause someone to not enter the program.

Certain aspects of AA have worked for me to date. I completely disregard other aspects. The sober connections I found in group were, and are, important to me. The people. The stories that tell me I am not alone. I, however, have never been as keen on the spiritual aspects and certain rituals of the program. That’s just me. You may like that. You may need that. Those issues however, have never been a deterrent to me in my program like they are for some who reject AA as their mode of recovery.

In speaking to law students and other lawyers about recovery, while some embrace the program, some would rather find others ways to long-term sobriety and have. Through their church. Through non-12-step-based programs such as Smart Recovery. Through both 12-step-based and non-12-step-based residential treatment. Through collegiate recovery programs. Through informal local attorney support groups. I know a few lawyers who have gotten sober on their own, although I would never recommend that path to start. There are many paths to recovery available today that were not available in 1935 when AA was founded.  AA has also not been my only mode of therapy. I have been seeing a psychiatrist for over a decade. I take anti-depressant medication daily. Cognitive Behavioral Therapy (CBT) and Acceptance and Commitment Therapy (ACT) have been important in my recovery. Let’s not lose sight of the goal: To be a person in long-term recovery regardless of the path chosen. The most important decision of your life should be one of reflection and critical thought. It’s your journey. If it’s AA, that’s great. If it’s another path, get on it. Recovery awaits.

  1. http://www.americanbar.org/groups/lawyer_assistance.html
  2. http://collegiaterecovery.org/programs/
  3. http://www.aa.org/
  4. http://www.smartrecovery.org/
  5. http://www.celebraterecovery.com/

 

Brian Cuban (@bcuban) is The Addicted Lawyer. A graduate of the University of Pittsburgh School of Law, he somehow made it through as an alcoholic then added cocaine to his résumé as a practicing attorney. He went into recovery April 8, 2007. He left the practice of law and now writes and speaks on recovery topics, not only for the legal profession, but on recovery in general. He can be reached at brian@addictedlawyer.com.

The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.

Colorado Court of Appeals: Cell Phone Records Created in Regular Course of Business are Nontestimonial

The Colorado Court of Appeals issued its opinion in People v. Ortega on Thursday, October 20, 2016.

Two men, one masked and one not masked, held up a fast-food restaurant at gunpoint. The unmasked man was identified in surveillance video as David Maestas. Police found a car nearby that was registered to Maestas’ wife, and in the car was a cell phone and pair of jeans consistent with those used in the robbery. DNA on the waistband of the jeans was traced to defendant, and several cell phone calls were made to a number listed in the phone as “Ray’s mom.” Defendant was tried separately from Maestas, and a jury convicted him of aggravated robbery. He was adjudicated a habitual offender.

Defendant appealed, arguing three points of error: (1) his Confrontation Clause rights under the U.S. and Colorado Constitutions were violated by admission of the cell phone records; (2) he was denied a fair trial because the prosecutor misstated the evidence; and (3) during the habitual offender trial, his Confrontation Clause rights were violated by admission of sentencing and prison records.

The Colorado Court of Appeals first addressed Defendant’s contention that admission of the cell phone records violated his Confrontation Clause rights. The court examined Crawford v. Washington and found that in order to be considered testimonial, the records must have been made in anticipation of litigation. The court also found a Tenth Circuit opinion dispositive, United States v. Yeley-Davis, 632 F.3d 673 (10th Cir. 2011). In Yeley-Davis, the Tenth Circuit determined that cell phone records kept in the course of regular business by the cell phone company were nontestimonial. The Colorado Court of Appeals found this reasoning persuasive. Although the printout of the records was ultimately included in evidence, the cell phone company created the records in the ordinary course of business and not for litigation purposes. Defendant also contended that his Colorado constitutional rights were violated because there was no showing that the custodian of the records was unavailable. The court of appeals disagreed, citing People v. Dement, 661 P.2d 675 (Colo. 1983). The supreme court’s Dement test provides that the unavailability requirement is subject to an exception when the utility of trial testimony is very remote. Because there would be little practical effect of having the cell phone company’s custodian of records testify, the court found no error.

Defendant also contended the prosecutor impermissibly informed the jury that it was impossible that someone other than Defendant had contact with the jeans. The court of appeals disagreed with Defendant’s characterization of the prosecutor’s statements. The court found that, although the prosecutor’s statements could have been worded more artfully, he did not tell the jury with certainty that the jeans came from Defendant. The court found no error. The court also found no cumulative error, since it found no error at all.

Defendant argued that, during the habitual offender phase of his trial, the court erroneously allowed evidence of sentencing and prison records without requiring the presence of the record custodian. The court of appeals found this contention analogous to Defendant’s argument about the cell phone records and found no error for the same reason.

The court of appeals affirmed the judgment.

Tenth Circuit: Unpublished Opinions, 10/20/2016

On Thursday, October 20, 2016, the Tenth Circuit Court of Appeals issued no published opinion and two unpublished opinions.

United States v. Sandoval-Flores

Maehr v. Koskinen

Case summaries are not provided for unpublished opinions. However, some published opinions are summarized and provided by Legal Connection.