July 23, 2019

Archives for November 6, 2012

Sneak Preview of the Amazing 2012 Ethics Revue: “The Suspenders”

We don’t want to give too much away for the upcoming Ethics Revue starring the Law Club—but, we’ll set the stage.

OPENING SCENE: The new Ralph Carr Justice Center
Our hero Trevor has joined a tour of the new center.  While looking at an inspirational statue of Judge Carr, he is bitten by a large arachnid.

ZOOM IN ON TREVOR WITH A BRIGHT LIGHT:  Dazed by the venom, he has a vision of Ralph Carr urging him to be a better, more ethical person and to assemble a team of lawyers, each with a special superpower for professionalism.  He will call this team of ethical do-gooders:  “The Suspenders.”

CUE OMINOUS MUSIC: This team of do-gooders will have to fight their nemesis Captain Obvious and his band of villains, and their wave of unethical and unprofessional behavior.

PLOT: Hilarious songs and skits, interrupted intermittently by pearls of wisdom from the panel (Gerry Pratt, Judge Ray Satter, Chips Portales, and Amy DeVan).  Watch out for heroes and villains, as they are revealed along the way. If the villains see the error of their ways, they will be allowed to join “The Suspenders” and fight evil.

MORALOF THE STORY: 

“The obvious way is not always the ethical way.”

CLIFF HANGER:  CUE SUSPENSEFUL MUSIC

Will Captain Obvious learn his lesson?  Will everyone be aligned with the “The Suspenders” at the end?

You will only find out by ending this incredible night of ethics and entertainment. Save your seat now for November 12 or November 13.

CLE Program: Ethics Revue at Lannie’s Clocktower Cabaret 2012

This CLE presentation will take place on Monday, November 12 at 5:30 pm and Tuesday, November 13 at 5:30 pm at Lannie’s Clocktower Caberet.

If you can’t make the live program or webcast, the program will also be available as a homestudy in DVD format or Video On-Demand download.

Colorado Supreme Court: Determination that Instructional Error Did Not Constitute Plain Error Does Not Control Determination of Prejudice Because the Two Standards Differ

The Colorado Supreme Court issued its opinion in Hagos v. People on Monday, November 5, 2012.

Crim.P. 35(c) Postconviction Proceedings—Ineffective Assistance of Counsel—Plain Error Review.

The Supreme Court held that a determination on direct appeal that instructional error did not constitute plain error does not control a determination of prejudice under Strickland v. Washington, 466 U.S. 668, 684-86 (1984), because the two standards are not the same. The plain error standard requires that an error impair the reliability of the judgment of conviction to a greater degree than the Strickland prejudice standard. Hagos’s ineffective assistance of counsel claim, nonetheless, failed under the separate, fact-specific Strickland analysis. Thus, the Court affirmed the court of appeals’ judgment, albeit on different grounds.

Summary and full case available here.

Colorado Supreme Court: Plain Error Standard Differs from Standard Defined in Strickland v. Washington

The Colorado Supreme Court issued its opinion in Villareal v. People on Monday, November 5, 2012.

Crim.P. 35(c) Postconviction Proceedings—Ineffective Assistance of Counsel—Plain Error Review.

The Supreme Court, employing the reasoning of Hagos v. People, 2012 CO 63 (No. 10SC424), affirmed the judgment of the court of appeals. The Court held that a determination on direct appeal that instructional error did not constitute plain error does not control a determination of prejudice under Strickland v. Washington, 466 U.S. 668, 684-86 (1984), because the two standards are not the same. The plain error standard requires that an error impair the reliability of the judgment of conviction to a greater degree than the Strickland prejudice standard. Villarreal’s ineffective assistance of counsel claim, nonetheless, failed under the separate, fact-specific Strickland analysis.

Summary and full case available here.

Tenth Circuit: Confidential Informant Had No Basis to Challenge District Court’s Rulings When He Entered Unconditional Plea Agreement

The Tenth Circuit issued its opinion in United States v. John Doe on Friday, November 2, 2012.

John Doe agreed to be a confidential informant (CI) for the Longmont, Colorado, Police Department (LPD) to provide information on drug trafficking. As part of a written Agreement to be a CI, Doe had agree not to engage in criminal activity. On the strength of Doe’s information, an arrest was made after a cocaine pick-up and Doe was paid. According to Doe, the arrest raised suspicion. Doe told Detective Stephen Schulz he was going to have to start running cocaine to alleviate suspicion. Schulz told him he could not do that.

Although it is undisputed that there was no formal agreement of immunity, conversations took place where Doe understood he would have immunity if he was arrested. Doe continued to provide information to Schulz while also engaging in criminal activity. Doe was indicted in April 2009.

Doe plead guilty to two drug trafficking charges. Prior to the plea deal, he filed a motion to dismiss the indictment for breach of an immunity agreement and outrageous governmental conduct. First, he contended the government breached an immunity agreement that arose from his relationship with Schulz. He also argued the government’s conduct in encouraging his ongoing relationship with the organization and the crimes he committed to maintain his cover amounted to outrageous conduct, justifying dismissal of the charges. The district court denied the motion. Doe appealed.

On appeal, the Tenth Circuit considered two issues: (1) whether Doe waived his right to challenge the district court’s rulings when he entered an unconditional plea agreement, and (2) whether the government’s conduct nonetheless provided grounds to vacate the plea agreement and dismiss the indictment.

The Tenth Circuit held defendant had no basis to challenge the waiver of appeal in his plea agreement.

In the alternative, Doe argued that even if he waived his right to appeal, the government’s conduct here was so egregious, the Court should ignore the waiver and dismiss the indictment. The outrageous conduct defense is an extraordinary defense that will only be applied in the most egregious circumstances. It is not outrageous for the government to induce a defendant to repeat or continue a crime or even to induce him to expand or extend previous criminal activity. In this case, Schulz persuaded Doe to serve as a CI because he was already involved with the organization—clearly not an inducement to create crime. It was at most an inducement to extend criminal activity, which is not prohibited.

Accordingly, the court AFFIRMED Doe’s conviction, DISMISSED his appeal, and GRANTED his motion to seal the briefs.

Tenth Circuit: Unpublished Opinions, 11/2/12

On Friday, November 2, 2012, the Tenth Circuit Court of Appeals issued one published opinion and twp unpublished opinions.

United States v. Griffin

Roberts v. H-40 Drilling, Inc.

No case summaries are provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.