August 23, 2019

Archives for September 23, 2010

ABA Commission on Ethics 20/20 Accepting Comments Two Technology Issues

The ABA Commission on Ethics 20/20 will hold a public hearing in Chicago, IL, to receive comments and suggestions concerning the subject of two issues papers: “Client Confidentiality and Lawyers’ Use of Technology” and “Lawyers’ Use of Internet Based Client Development Tools.”

Testimony relating to other relevant issues is also welcomed by the Commission.

The hearing will take place on Thursday, October 14, 2010 from 2:00 – 5:00pm at the American Bar Association headquarters located at 21st Floor, 321 N. Clark Street in Chicago.

Those interested in testifying in person can find submission requirements here.

Those unable to attend the hearing but interested in providing comments and responses can submit them by December 15, 2010, via email or hard copy to: ABA Center for Professional Responsibility, Attn: Senior Research Paralegal Natalia Vera, 15th Floor, 321 N. Clark Street, Chicago, IL 60654.

Notice of the public hearing can be found here.

Colorado Supreme Court: Inconsistent Jury Instructions on Lesser-Included Offenses Proper Only with Rational Basis for the Instruction

The Colorado Supreme Court issued its opinion in Brown v. People on September 20, 2010.

Criminal Trial—Jury Instructions—Lesser-Included and Non-Included Offenses.

The Supreme Court affirmed the Court of Appeals judgment, holding that a criminal defendant who maintains his or her innocence throughout trial may seek an inconsistent jury instruction on both a lesser-included offense and voluntary intoxication, provided there is a rational basis for the instruction in the evidence. Specifically, the Court held that second-degree murder is a lesser-included offense of first-degree murder and that a criminal defendant may receive inconsistent jury instructions on these two crimes. The Court also held that because a voluntary intoxication defense would relieve a defendant of first-degree murder and leave him or her liable for the lesser-included offense of second-degree murder, a defendant may receive an inconsistent jury instruction on voluntary intoxication. However, the Court stressed that inconsistent jury instructions on lesser-included offenses and voluntary intoxication are proper only when there is a rational basis for the instruction in the evidentiary record. Because there was no rational basis in the record in this case, the failure of the trial court to allow inconsistent jury instructions was harmless.

Summary and full case available here.

Colorado Supreme Court: Equally Divided Court Affirms Decision Under C.A.R. 35(e)

The Colorado Supreme Court issued its opinion in Rodriguez v. People on September 20, 2010.

C.A.R. 35(e).

By operation of law, the judgment of the court of appeals in Rodriguez v. People, 209 P.3d 1151 (Colo.App. 2008), was affirmed by an equally divided court. See C.A.R. 35(e).

Summary and full case available here.

Colorado Supreme Court: Notice of Appeal Not Untimely when Excluded Intervening Weekends and Holidays

The Colorado Supreme Court issued its opinion in People v. Zhuk on September 20, 2010.

Calculating Time Limit for Filing Appeals—Crim.P. 37.1—C.A.R. 26(a).

The Supreme Court reversed the district court’s judgment dismissing as untimely the People’s appeal under Crim.P. 37.1. Under Crim.P. 37.1, the notice of appeal must be filed within ten days of the entry of the order being appealed. The rule does not specify whether to count ten calendar days or whether to omit intervening Saturdays, Sundays, and legal holidays. Because the rule directs the court to the relevant Rule of Appellate Procedure when “no procedure is specifically prescribed by this rule,” time computation is governed by C.A.R. 26(a), which excludes intervening Saturdays, Sundays, and legal holidays. Under C.A.R. 26(a), the People’s appeal in this case was timely.

Summary and full case available here.

Colorado Supreme Court: Case Appropriately Dismissed for Failure to Prosecute

The Colorado Supreme Court issued its opinion in Concerning the Application for Water Rights of Streu and the Board of County Commissioners of Lake County, in the Arkansas River and its Tributaries, in Lake and Chaffee Counties: Streu v. City of Colorado Springs on September 20, 2010.

Dismissal of a Case for Failure to Prosecute.

The Supreme Court held that the water court did not abuse its discretion when it dismissed plaintiff’s case for failure to prosecute. Under the factual circumstances of the case, the water court did not act in a manifestly arbitrary or unreasonable manner. The water court also did not err when it dismissed plaintiff’s case without making findings of fact or conclusions of law. C.R.C.P. 41(b) does not require a trial court to make findings of fact or conclusions of law when it dismisses a case for failure to prosecute.

Summary and full case available here.

Tenth Circuit: Opinions, 9/22/10

The Tenth Circuit on Wednesday issued no published opinions and three unpublished opinions.


United States v. Sears

United States v. Jimenez-Baeza

Browning v. American Family Mutual Ins. Co.

Finalists Announced for 4th Judicial District, El Paso County Judgeships

The Fourth Judicial District Nominating Commission has selected six finalists for two vacancies on the Fourth Judicial District bench and three finalists for one vacancy on the El Paso County bench, State Judicial announced on Thursday.

The seven-member Commission recommended Colorado Springs lawyers William Burlingham Bain, Debra Campeau, HayDen William Kane II, Diana Kay May, Michael Paul McHenry, and Regina Marie Walter to Gov. Ritter for his consideration for the two judgeships in the district court.

For the single opening at the El Paso County Court, the Commission recommended Fotios (Fred) Michael Burtzos, Sheilagh Ann McAteer, and Douglas Joseph Miles, All three nominees hail from Colorado Springs.

As proscribed by the Colorado Constitution, the governor has 15 days to select his appointees.

The three new judgeships were authorized by the passage of House Bill 07-1054 (pdf) in 2007, which funded several new positions on district and county court benches in Colorado.

Tenth Circuit: Opinions, 9/21/10

The Tenth Circuit on Tuesday issued two published opinions and two unpublished opinions.


In State of Oklahoma v. Tyson Foods, Inc., the Court affirmed the district court’s denial of the Cherokee Nation’s (Nation) motion to intervene. The State of Oklahoma brought suit against Tyson Foods for improper disposal of poultry waste in the Illinois River Watershed (IRW). When Tyson Foods sought to dismiss the case on the grounds that Nation was a necessary and unjoined party, the Nation purportedly assigned its monetary interest to the State. This assignment was improper and the Nation was a necessary party, as much of the IRW flows through Nation lands. However, the district court did not abuse its discretion by denying the motion to intervene as “the Nation had unduly delayed seeking to intervene because from the outset of the litigation it had no reason to believe that the State would represent its interests in monetary relief.”

In United States v. Leyva-Matos, the Court dismissed the appeal without addressing the merits. Petitioner, found guilty of possession and conspiracy to distribute marijuana, appealed his conviction, claiming that the district court improperly considered information he provided to the Government on the understanding it would not be used against him. Petitioner’s plea agreement provides, however, that should the court not accept any of the agreement’s stipulations, the defendant waives his right to appeal based on such stipulations. Appellate waivers are only unlawful when they seriously affect the fairness, integrity, or public reputation of judicial proceedings; nothing in the case indicated that the waiver was unlawful, and Petitioner failed to meet his burden of demonstrating that enforcing the waiver would result in the miscarriage of justice.


United States v. Williams

Thelen v. State of Oklahoma