August 24, 2019

Archives for November 20, 2013

Curing the Collywobbles — Part 5: You Can’t Reason Your Way to Safety

rhodesThe path of reason is not the path of change. Reason won’t cure your collywobbles. It won’t get you over the change threshold, and even if it does, it’ll leave you hanging out to dry when you reach for it later.

Being reasonable is the way we try to understand things. If we can understand something, we can control it. Or so we think. That’s especially true for lawyers: we’re reasonable people, working in a reasonable profession. We are the masters of reasonableness; we are in control.

Or so we think.

Reason has its place, but not if we want to find a new career path, launch a new venture, or otherwise break out of the mold. That kind of change is inherently unreasonable. Consider the following two quotes. You know who said the first one; the second, maybe not.

Imagination is more important than knowledge. For knowledge is limited to all we now know and understand, while imagination embraces the entire world, and all there ever will be to know and understand.

The reasonable man adapts himself to the world; the unreasonable one persists in trying to adapt the world to himself. Therefore, all progress depends on the unreasonable man.

Einstein, of course, said the first one. And the second? None other than that paragon of rational curmudgeonliness himself, George Bernard Shaw. Apparently even Mr. Shaw knew his limits. Not everybody does, which is why many of the reasonable things reasonable people have said in response to proposed change are so laughable. There’s a link below you can click to amuse yourself with more, but here’s a quick sampling:

“Who the hell wants to hear actors talk?” — H. M. Warner, Warner Brothers, 1927.

“I think there is a world market for maybe five computers.” — Thomas Watson, chairman of IBM, 1943.

“The concept is interesting and well-formed, but in order to earn better than a ‘C’, the idea must be feasible.” — A Yale University management professor in response to Fred Smith’s paper proposing reliable overnight delivery service. Smith went on to found Federal Express Corp.

You get the point.

We reach for reason because we don’t feel safe. Change threatens our sense of identity, our valued relationships, our income – not to mention everything else we “know” to be true and reliable. We want reason to protect us, convince us we won’t end up living in a refrigerator box.

Not gonna work. We can’t reason our way to safety. Reason only works in hindsight (and not always then). The Maginot Line was a perfectly reasonable defense strategy until the German Army simply did an end run on it.

Reason won’t shift the playing field. It may understand and illuminate it after the fact, but won’t shift it. What will?

To be continued.

Click here for a sampling of other reasonable responses to proposed change and innovation.

Kevin Rhodes is a lawyer in private practice who coaches and mentors other lawyers to love their work and their lives. He leads workshops for a variety of audiences, including the CBA’s Solo and Small Firm Section and the Job Search and Career Transitions Support Group. You can email Kevin at

Secretary of State Releases First Part of Series of Webinars for Nonprofit Directors

On Wednesday, November 13, 2013, the Colorado Secretary of State’s office announced its release of a free eLearning program for directors of nonprofit corporations, entitled “Board Education and Effectiveness.” The first part of this five-part series is called “Fiduciary Duties of Nonprofit Directors,” and is available online through the Secretary of State’s website.

The board effectiveness training program was developed through a series of meetings between the Secretary of State’s office and nonprofit community leaders. The program is designed in hopes of strengthening nonprofits in Colorado through education. The Secretary of State noted that not all nonprofit directors are clear in understanding their roles and responsibilities, so education is a key component to help instill best practices in these directors.

The remaining four segments will be released in the coming months, and the entire course should be available to the public by mid-2014.

Although the Secretary of State programs are designed for the public, Colorado Bar Association CLE offers a comprehensive resource for attorneys who advise nonprofits—A Guide for Colorado Nonprofit Corporations. This book, written by over 20 of Colorado’s top corporate attorneys, covers the legal aspects of forming nonprofit entities in Colorado, the fundamentals of choosing the form of the entity, the requirements of maintaining the entity’s tax-exempt status, and the complex and ever-changing tax laws — federal, state, and local — that impact nonprofit organizations.

CLE Book: A Guide for Colorado Nonprofit Corporations

The 2013 Supplement to A Guide for Colorado Nonprofit Corporations is now available. Click here to purchase the supplement online, or call (303) 860-0608.

Tenth Circuit: Specific Treatment Plan Required Before Court can Order Involuntary Medication of Incompetent Defendant

The Tenth Circuit Court of Appeals published its opinion in United States v. Chavez on Wednesday, November 13, 2013.

Reydecel Chavez was charged with being a felon in possession of a firearm, being an illegal alien in possession of a firearm, and reentry of a removed alien. Chavez was found incompetent to stand trial and he refused antipsychotic medication that would render him competent. The district court ordered Chavez to be involuntarily medicated.

Under United States v. Sell, “the government may involuntarily administer drugs to a mentally ill, non-dangerous defendant in order to render him competent to stand trial only upon a four-part showing. The government must establish that: (1) “important governmental interests are at stake;” (2) the “involuntary medication will significantly further” those interests; (3) the “involuntary medication is necessary to further those interests,” e.g., less intrusive alternative treatments are unlikely to be effective; and (4) the administration of the medication is “medically appropriate” and in the defendant’s best medical interests.”

Chavez argued that the lack of an individualized treatment plan could not satisfy the requirements of Sell. The Tenth Circuit agreed and held that “an order to involuntarily medicate a non-dangerous defendant solely in order to render him competent to stand trial must specify which medications might be administered and their maximum dosages.” Without this information, a court could not be sure any side effects would be unlikely to significantly interfere with the defendant’s ability to assist in his trial defense, or that the medication is medically appropriate. The court held that a list of possible medications and their maximum dosages was adequate because medical staff require flexibility to provide effective treatment.

The court vacated the district court’s order and remanded for further proceedings.

Tenth Circuit: In Conviction of First Degree Murder of a Child, Sentence of Death Affirmed

The Tenth Circuit Court of Appeals published its opinion in Cole v. Trammell on Monday, November 18, 2013.

On the evening of December 20, 2002, Benjamin Cole caused fatal injuries to his nine-month-old daughter Brianna. An autopsy revealed that Brianna’s spine had been snapped in half, and her aorta had been completely torn through due to non-accidental stretching.

Cole was charged in the District Court of Rogers County, Oklahoma, with one count of first degree murder of a child. The State also filed a bill of particulars alleging the existence of three aggravating circumstances: (1) Cole was previously convicted of a felony involving the use or threat of violence to the person; (2) the murder was especially heinous, atrocious or cruel; and (3) the existence of a probability that Cole would commit criminal acts of violence that would constitute a continuing threat to society.

The case proceeded to trial. At the conclusion of the first stage evidence, the jury found Cole guilty of first degree murder. At the conclusion of the second-stage evidence, the jury found the existence of two of the three aggravating factors alleged in the bill of particulars — the murder was especially heinous, atrocious or cruel, and that Cole had been previously convicted of a felony involving the use or threat of violence to the person — and fixed Cole’s punishment at death.

Cole initiated these federal habeas proceedings. The district court issued an opinion and order denying Cole’s petition, but granting him a certificate of appealability (COA) with respect to five issues: an alleged breakdown in communications between Cole and his defense counsel; defense counsel’s failure to investigate and present additional mitigating evidence; improper admission of photographs of the victim; sufficiency of the evidence to support the heinous, atrocious or cruel aggravator; and prosecutorial misconduct. The court subsequently expanded the COA to include the issue of cumulative error.

Alleged Breakdown in Communications Between Cole and His Defense Counsel

Cole argued that he “was denied his right to the effective assistance of counsel as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution because there was a complete breakdown in communication between [himself] and his attorneys.”

Two mental health examinations and a jury trial were held to determine Mr. Cole’s competency. The Tenth Circuit held that that Cole’s arguments were insufficient to warrant federal habeas relief under the standards of review outlined in § 2254(d). Although the record on appeal indicated, and the Oklahoma Court of Appeals (OCCA) conceded, that Cole and his defense team had difficulties communicating with each other during the course of the pretrial proceedings, the OCCA found that Cole was partly responsible for these communication difficulties and that, in the end, there was not a complete breakdown in communication such that Cole was denied his right to effective assistance of counsel. And, though Cole disagreed with the OCCA’s finding that he was partly responsible for the communication difficulties, he failed to establish that it was “an unreasonable determination of the facts in light of the evidence presented in the State court proceeding” as required by § 2254(d)(2).

Defense Counsel’s Failure to Investigate and Present Additional Mitigating Evidence

Cole contended that his trial counsel failed to investigate and present mitigation evidence from Cole’s family members that would have “personalized” him to the jury. Consequently, Cole argued, he was deprived of his right to effective assistance of counsel in violation of the United States Constitution. The Tenth Circuit held Cole’s claim of ineffective assistance of trial counsel was procedurally barred for purposes of federal habeas review. Even after an analysis on the merits, the court concluded that Cole was not prejudiced by his trial counsel’s failure to investigate and present the various items of mitigating evidence.

Improper Admission of Photographs of the Victim

Cole argued that he was denied his constitutional rights to due process, a fundamentally fair trial, and a reliable sentencing hearing as a result of the state trial court’s erroneous admission of “gruesome autopsy photographs” during the first-stage proceedings.

Cole pointed to Romano v. Oklahoma, 512 U.S. 1 (1994), as providing the clearly established federal law applicable to this claim. In Romano, the Supreme Court held that “the Due Process Clause of the Fourteenth Amendment . . . applies to the sentencing phase of capital trials.” 512 U.S. at 12. When a defendant claims that the introduction of evidence during the penalty phase of a capital trial violates the Due Process Clause, the relevant question is whether the admission of the challenged evidence so infected the sentencing proceeding with unfairness as to render the jury’s imposition of the death penalty a denial of due process. The court agreed with OCCA that the admission of certain autopsy photographs of the child did not deprive Cole of a fair sentencing proceeding.

Sufficiency of the Evidence to Support the Heinous, Atrocious or Cruel Sentencing Aggravator

Cole argued that his rights under the Eighth and Fourteenth Amendments were violated because the evidence presented during the second-stage proceedings was insufficient to allow the jury to reasonably find that the murder was especially heinous, atrocious or cruel.

Cole argued that the medical examiner’s findings, at most, indicated the possibility that some pain might have been felt by Brianna as the result of the fracture of the spine, but there was no evidence that Brianna was conscious during the time the injury was inflicted; and even if she was, the medical examiner testified that such consciousness would not have lasted any more than thirty seconds. The OCCA rejected Cole’s arguments and agreed with the State’s description that Brianna’s injuries would have been absolutely painful to a nine-month-old child. The Tenth Circuit fully agreed with the OCCA that the medical examiner’s testimony was sufficient to allow a rational trier of fact to find beyond a reasonable doubt that the murder was especially heinous, atrocious or cruel.

Prosecutorial Misconduct

Cole asserted that prosecutorial misconduct in seeking sympathy for the decedent, by way of repeated references to God and religion in both stages of the trial, resulted in violations of his rights under the Eighth and Fourteenth Amendments to the United States Constitution. Cole further asserted that his rights under the First Amendment were also violated by the prosecutorial misconduct. Additionally, Cole asserted that his trial counsel was ineffective for failing to object to the alleged instances of prosecutorial misconduct. According to Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974), prosecutorial misconduct can result in constitutional error if it so infected the trial with unfairness as to make the resulting conviction a denial of due process. The Tenth Circuit held that the prosecutor’s comments, when considered in light of the trial as a whole, did not result in a deprivation of Cole’s due process right to a fair trial and sentencing proceeding.

Cumulative Error

Having reviewed all of the state court records in the case, the court concluded that Cole received a fundamentally fair trial. In other words, even aggregating the constitutional errors alleged by Cole, those errors did not have a substantial and injurious effect or influence on either the jury’s determination of Cole’s guilt or its decision to sentence Cole to death.


Tenth Circuit: Unpublished Opinions, 11/19/13

On Tuesday, November 19, 2013, the Tenth Circuit Court of Appeals issued no published opinions and one unpublished opinion.

Martin v. Hauck

Case summaries are provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.