August 23, 2019

Archives for April 16, 2013

Morphic Fields and Change (Part 1)

rhodesWe can gain useful perspective from borrowing concepts and vocabulary from other fields. Biologist Rupert Sheldrake posits the existence of “morphic fields.” We can use the concept to think about how change happens (or not). Honest. Stay with me here.

A morphic field is the controlling energy field of a biological entity – either an individual or collective system. The field is made up of both organic and psychological elements. The field is invisible, but its impact is observable. For example, both genetics (organic) and individual and collective conscious and unconscious factors (psychological) invisibly affect our behavior.

Well okay then. Glad we cleared that up. Moving right along…..

When we enter the legal profession, we enter its morphic field. Lawyers work in the field of law – get it?  There are certain expectations, dynamics, outlooks, disciplines, judgments, commonly accepted wisdom, urban legends, etc. that come with the territory of being a lawyer. In law school, we allowed our psyches to be affected by those things – we learned to “think like a lawyer.” Our neural pathways were literally rewired, our consciousness was altered, and our physiology was affected as well, so that we were biologically and chemically different beings when we graduated than we were when we started. No kidding. This brain- and body-retraining process continued when we went to work.

Within the over-arching field of law, there are also subfields that affect our experience:  e.g., being part of this firm or that practice area, practicing in this city or that small town, and so on. When an individual lawyer goes to work in one of these fields, his or her individual morphic field interacts with it to create his or her experience of being a lawyer on all levels of human existence – intellectual, emotional, physical, social, and so on.

This interaction can be harmonious or dissonant. If we’re dissatisfied with our work and how it’s affecting our lives, it’s likely because our individual field is in conflict with the field where we work.  Our personal values and preferences and expectations aren’t meshing with the field’s:  we don’t like playing by its rules, don’t share its values, don’t like its required behaviors; don’t like meeting billable hour standards or working holidays or dealing with uncivil lawyers or whatever else comes with the territory.

If we try to change our experience of work and life, then the first thing that happens is we run smack into the boundaries of our morphic fields – both our individual field, and the one where we work. Why? Because they are energetically supporting our existing reality – the one we don’t want anymore, not the one we want to create.

In order to change, we need to deal with both fields. If we don’t, then lack of change in one will sabotage attempted change in the other.

To be continued.

Kevin Rhodes helps individuals and organizations to make transformative changes. He leads workshops on change for a variety of audiences, including the CBA’s Job Search and Career Transitions Support Group. You can email Kevin at

Colorado Supreme Court: Trial Court Erred by Failing to Balance Privacy Right with Need for Information in Discovery Dispute

The Colorado Supreme Court issued its opinion in In re Gateway Logistics, Inc. v. Smay on Monday, April 15, 2013.

Privacy Interests—CRCP 26.

In this original proceeding brought under CAR 21, the Supreme Court concluded that the trial court abused its discretion by granting a motion to compel discovery without making findings of fact balancing defendants’ asserted privacy interest with plaintiffs’ need for the information sought, as required by In re District Court, 256 P.3d 687 (Colo. 2011). Accordingly, the Court made the rule absolute, vacated the portion of the trial court’s order compelling the discovery, and remanded the case to the trial court.

Summary and full case available here.

Tenth Circuit: Fair Sentencing Act Does Not Apply Retroactively To Initial Sentences Imposed Before FSA’s Effective Date

The Tenth Circuit published its opinion in United States v. Lucero on Monday, April 15, 2013.

Christopher Lucero appealed the district court’s denial of his motion to reduce his sentence, which he filed pursuant to 18 U.S.C. § 3582(c)(2). Lucero, who was sentenced before the effective date of the Fair Sentencing Act (FSA), asserted that the district court erred in failing to apply the FSA and its current statutory mandatory minimum sentencing scheme retroactively to reduce his sentence for possession of cocaine base. The Tenth Circuit disagreed. An 18 U.S.C. § 3582(c)(2) motion is not a resentencing proceeding, it is a modification of an already final sentence. The FSA does not retroactively apply to defendants who were initially sentenced before the FSA’s effective date. The court affirmed the sentence.

Tenth Circuit: Human Sniff Not A Search Under Fourth Amendment

The Tenth Circuit published its opinion in United States v. Shuck on Friday, April 12, 2013.

David Shuck entered a conditional guilty plea to all five counts he was charged with: conspiracy to manufacture 100 or more marijuana plants in violation of 21 U.S.C. §§ 846, 841(b)(1)(B)(vii); manufacture of 100 or more marijuana plants in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B)(vii); two counts of the use and maintenance of a place for the purpose of manufacturing marijuana in violation of 21 U.S.C. § 856(a)(1), (b); and possession of marijuana with intent to distribute in violation of 21 U.S.C. § 841(a)(1), (b)(1)(D). Shuck was sentenced on April 12, 2012, to eighteen months.

On appeal, Shuck argued the district court erred in denying his motion to suppress. Sheriff’s detectives went to the trailer where many of the marijuana plants were found after receiving a call from a neighbor who believed marijuana was being grown there. Because it appeared the back door was the one commonly used, the detectives went there and knocked. One detective also sniffed the end of a PVC pipe by the back door and smelled marijuana. The Tenth Circuit applied the U.S. Supreme Court’s recently decided Florida v. Jardines case and upheld the denial of the motion to suppress. Going to the back door did not violate the Fourth Amendment because even if that area fell within the curtilage, a police officer may still ‘“approach a home and knock, precisely because that is ‘no more than any private citizen might do.’” The sniff of the PVC pipe also did not violate the Fourth Amendment because a human sniff is not a search and cannot uncover intimate details or private activity within a home.

Shuck also argued he should have been granted a four-level downward departure from the sentencing guidelines in addition to the six levels he received in exchange for cooperation with the government. The Tenth Circuit’s review of this issue was limited to the overall reasonableness of his sentence, which it found reasonable. The court affirmed the sentence.

Tenth Circuit: No Fourth Amendment Violation Even if Driveway Was Within Curtilage

The Tenth Circuit published its opinion in United States v. McDowell on Friday, April 12, 2013.

A jury convicted Defendant Theodore McDowell of one count of conspiracy to possess with intent to distribute more than 1,000 kilograms of marijuana, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(vii). Prior to trial, Defendant unsuccessfully sought to suppress evidence seized in the Avondale, Arizona house where he was arrested along with four other men. He appealed the denial of his motion to suppress as well as two sentencing issues.

McDowell argued the officers searching the Avondale property violated the house’s curtilage while gathering the facts that supported the search warrant, thereby rendering the warrant invalid. The Fourth Amendment protects a house’s curtilage, that is, the “area immediately surrounding the home.” An officer had gone to the house originally to attempt to locate an assault suspect. When he entered the driveway on the way to the front door, he smelled the strong odor of unburned marijuana. The Tenth Circuit applied the U.S. Supreme Court’s recently decided Florida v. Jardines case and upheld the denial of the motion to suppress. Even if a home’s driveway may arguably fall within the curtilage, a police officer may still ‘“approach a home and knock, precisely because that is ‘no more than any private citizen might do.’”

McDowell argued the district court should not have found that his involvement in the conspiracy began in May 2006 as the presentencing report concluded. The Tenth Circuit found the evidence supported the reasonable inference he was participating in the conspiracy by that date. The court also rejected Defendant’s argument that the court erred in determining the quantity of drugs trafficked by the conspiracy. Because the amount was based on a conspirator’s testimony, it was not speculative. The court affirmed McDowell’s sentence.

Colorado Court of Appeals: Retroactive Application of Supreme Court Decision Prevents Life Sentence for Juvenile Offender

The Colorado Court of Appeals issued its opinion in People v. Rainer on Thursday, April 11, 2013.

Crim.P. 35(b)—Sentencing—Juvenile—Life Without Parole—Retroactive Application.

Defendant Atorrus Leon Rainer appealed the trial court’s order denying his Crim.P. 35(c) motion asserting that his 112-year sentence was unconstitutional. The order was reversed, defendant’s sentence was vacated, and the case was remanded for resentencing.

In 2000, when he was 17 years old, Rainer burglarized an apartment. During the incident, he shot two victims multiple times with a handgun, seriously injuring them and leaving them in critical condition. Rainer was arrested and was charged and tried as an adult in the district court. Following a jury trial in 2001, the jury found Rainer guilty of two counts of attempted first-degree murder, two counts of first-degree assault, one count of first-degree burglary, one count of aggravated robbery, and sentence enhancement counts for crimes of violence.

On appeal, defendant contended that his sentence violates the Cruel and Unusual Punishments Clause of the federal constitution’s Eighth Amendment. Defendant filed his Crim.P. 35(c) motion after the Supreme Court held in Graham v. Florida, ___ U.S. ___, 130 S.Ct. 2011 (2010), that juveniles may not be sentenced to life without parole (LWOP) for non-homicide crimes. Defendant argued that his 112-year sentence constitutes a de facto LWOP sentence because his life expectancy is between 63.8 years and 72 years (based on Center for Disease Control life expectancy tables).

The rule announced in Grahamis a new substantive rule that must be applied retroactively to all cases involving juvenile offenders under the age of 18 at the time of the offense, including those cases on collateral review. Therefore, the trial court erred when it found that Graham did not retroactively apply to defendant’s sentence.

In addition, although defendant’s motion was untimely, it was based on the new substantive rule of law announced in Graham. Therefore, he established justifiable excuse, his claim was not successive, and his motion was considered on its merits.

Finally, defendant’s aggregate sentence did not offer him, as a juvenile non-homicide offender, a “meaningful opportunity to obtain release” before the end of his expected life span. Thus, it constituted the functional equivalent of a life sentence without parole and was unconstitutional under Grahamand its reasoning.

Summary and full case available here.

Colorado Court of Appeals: Action Seeking to Enforce Contractual Agreements In Personam in Nature; Maritime Law Not Implicated

The Colorado Court of Appeals issued its opinion in BDG International, Inc. v. Bowers on Thursday, April 11, 2013.

Subject Matter Jurisdiction—Maritime Law—Finality of Judgment—Contract—Duress—Offsetting—Attorney Fees.

Defendants Robert J. Bowers and Auxiliary Graphic Equipment, Inc. (AGE) appealed the judgment entered after a bench trial in favor of plaintiff BDG International, Inc. (BDG). The judgment was affirmed.

AGE purchased printing presses from a seller in Australia for a client located in Colorado. AGE contracted with Fortner Graphic Solutions, Inc. (Fortner) to dismantle the printing presses and transport them to Colorado. Fortner then subcontracted with BDG and other firms to perform its contractual duties. BDG was responsible for transoceanic shipping, and another company was responsible for packing and inland transportation to the client’s site in Colorado. BDG brought this action after defendants failed to pay all costs for inland and ocean freight for the dismantling and shipping of the presses and failed to make payment as required by the agreements to release the resulting liens. The court entered a judgment in favor of BDG and against defendants, jointly and severally.

On appeal, defendants contended that the trial court lacked subject matter jurisdiction over this case, because it involved admiralty or maritime law and exclusive jurisdiction resided with the federal courts. Contrary to defendants’ arguments, however, this action is not in rem in nature; rather, it is a proceeding in personam, because it sought to enforce the contractual agreements against defendants personally and not against the cargo or another type of property of a maritime nature. Accordingly, jurisdiction in this case did not lie exclusively in the federal courts, and the trial court did not lack subject matter jurisdiction to hear this case.

Defendants also contended that the judgment was not final because it does not dispose of the litigation. The judgment entered by the trial court resolved BDG’s and the third-party claim; dismissed the counterclaim with prejudice; and awarded a sum certain for damages, collection costs, and prejudgment interest. Although the trial court provided directions with regard to how the proceeds of any sums recovered by Bowers or AGE should be applied to the judgments they obtained against Fortner in Colorado and Missouri, those directions do not alter the finality of the underlying judgment.

Defendants also contended that the trial court erred in not finding the contracts voidable on the basis of duress. Although defendants may have felt economic pressure to sign the releases to obtain possession of the cargo, the lienholders did not engage in wrongful conduct to coerce payment from defendants.

Defendants further contended that the trial court erred in failing to set off against one another the judgments in this case. Contrary to defendants’ contention, however, the principle of offsetting judgments does not apply, because the judgments are not against the same parties.

BDG collection costs primarily were attorney fees amounting to 40% of the principal due under the agreements signed by defendants. The Court of Appeals therefore ruled that the trial court did not err in awarding BDG collection costs.

Summary and full case available here.