August 22, 2019

Archives for October 23, 2014

Colorado Appellate Rules Amended by Colorado Supreme Court

On October 17, 2014, the Colorado Supreme Court issued Rule Change 2014(13), amending the Colorado Appellate Rules. Four rules were amended: C.A.R. 3, “Appeal as of Right – How Taken”; C.A.R. 25, “Filing and Service”; C.A.R. 32, “Form of Briefs and Appellate Documents”; and C.A.R. 57, “Briefs – In General.”

In general, these rules were amended to change “shall” to “must” where applicable and change “papers” to “documents.” Several of the comments were removed from subsections of Rule 3, as well as references to specific caption requirements and requirements regarding transcripts. Description of magistrate review requirements was added to Rule 3.

Many of the changes to Rule 25 address the availability of electronic filing and specifications related to electronic files. Inmate filing procedures were also clarified. Rule 32 was amended to add information to the caption regarding the lower court. The sample captions in Rule 32 were also changed, and much language was deleted from the comment. In Rule 57, some dates were changed in accordance with the Rule of Seven. Specifications that briefs comply with the content and length requirements of Rule 28 and the form and service requirements of Rule 32 were added to Rule 57 as well.

For a redline of these changes to the Colorado Appellate Rules, click here. For all of the Colorado Supreme Court’s rule changes, click here.

Judge Philip James McNulty Named Chief Judge of First Judicial District

On Tuesday, October 21, Colorado Supreme Court Chief Justice Nancy Rice appointed Judge Philip James McNulty Chief Judge in the First Judicial District Court. McNulty’s appointment will be effective November 17, upon the retirement of current Chief Judge Stephen Munsinger.

Judge McNulty was appointed to the district court bench in the First Judicial District in 2008. Prior to his appointment, he was a municipal court judge for the City of Lakewood. McNulty was also a deputy district attorney for the First Judicial District from 1988 to 1996 and a deputy city attorney for the City of Lakewood from 1985 to 1988. He received his undergraduate degrees from Colorado State University and his law degree from the University of Denver.

Three nominees were announced this week for the impending vacancy on the First Judicial District Court bench due to Judge Munsinger’s retirement. The nominees are Todd E. Kastetter of Littleton, K.J. Moore of Littleton, and Laura A. Tighe of Golden. The governor has 15 days from October 20 in which to appoint one of the three nominees.

Comments regarding any of the nominees may be sent to

Colorado Court of Appeals: Announcement Sheet, 10/23/2014

On Thursday, October 23, 2014, the Colorado Court of Appeals issued 10 published opinions and 18 unpublished opinions.

People v. Maestas

People v. Castillo

People v. Frye

People v. Bertrand

People v. Beauvais

People v. Calderon

In re Marriage of Johnson

Markus v. Colorado Department of Revenue

In re Marriage of Corak

People in Interest of M.K.D.A.L.

Summaries of these cases are forthcoming, courtesy of The Colorado Lawyer.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. The case announcement sheet is available here.

Tenth Circuit: Unpublished Opinions, 10/23/2014

Killing Them Softly (Part Six): Bouncing Back

rhodesThe reason not all law students and lawyers are paralyzed with stress-induced brain damage is because our brains are resilient. They bounce back. They successfully resist or unlearn stress conditioning.

Stress is profession-wide, but adaptation to stressful experience, including resistance and recovery, is individual by individual. As Prof. Austin explains in Killing Them Softly:

The brains of all healthy law students are comprised of the triune structure: the primitive, emotional, and thinking brains. The critical unit of communication within each brain is the tree-shaped neuron, which relies on the electrochemical process of transmitting information through the brain and between brain and body. Every law student has a multitude of neuronal networks operating within the brain. But each student’s transit system map of neuron data pathways, referred to as the connectome, is unique.

“You are your synapses,” and your brain is a “work in progress” because your connectome is continuously rewiring itself. The brain is in a constant state of change. It has the capacity to produce new neurons in the hippocampus and the olefactory bulbs (parts of the emotional brain) in a process called neurogenesis. The modification of neural networks in response to experience, such as legal education, is neuroplasticity.

Linda Graham’s book Bouncing Back describes neuroplasticity this way:

Technically, neuroplasticity is the lifelong capacity of the brain to create new neurons (brain cells) and connections among neurons (neural pathways and circuits). . . . When you focus attention on the conditioned pattern you want to rewire, you activate the neural networks of that pattern and cause the neurons to fire again. When you know how to harness the neuroplasticity of your brain in that moment, you can alter the pattern.

In other words, neuroplasticity isn’t just something that happens in the normal course of life inside our skulls, it’s also a skill we can consciously practice to our advantage. As Prof. Austin points out, “The brains of law students and lawyers are continuously being rewired and everything they do, think, and feel is governed by their neural networks.” We can either allow this to happen without our conscious intent, and leave the prospect of suffering brain damage and recovering from it up to chance, or we can engage in the intentional “neural self-hacking” Prof. Austin advocates — a term taken from “a class taught at Google, [that] teaches employees about the power of neuroplasticity.”

Using neuroplasticity to our benefit is a skill we can either use or lose. As Prof. Austin says,

The brain has the power to change itself through the personal effort and choices of its owner. Brain plasticity is competitive; we keep the skills we practice and we lose the ones we do not.

Embracing this skill requires focus and perseverance. As Bouncing Back says:

All mental activity creates neural structure. Using neuroplasticity to strengthen brain structures is like working out at the gym to build up our muscles. (Of course, the structures of the brain aren’t actually muscles; they’re densely networked circuits and pathways of neurons. But strengthening the capacities of these neurons to communicate with one another, and to integrate the information being processed into new responses, is comparable to working out to strengthen our muscles.)

Perseverance in our efforts to harness neuroplasticity is the sine qua non of rewiring our brains. By persevering in the use of new tools and techniques, we are stabilizing the new neural circuitry so that it can serve as a reliable platform of resilient behavior, not easily overridden by the pulls of the past. . . .

Frequent and regular repetition creates steady neural firing and rewiring and accelerates the process. . . . [A] stance of willingness — focusing on possibilities — is more effective than a stance of willpower — focusing on performance. It almost doesn’t matter how small the increment of change is.

What’s important is that we choose practices that catalyze positive change and that we persevere.

We’ll look at one of those catalytic practices next time.

Rhodes has been a lawyer for nearly 30 years, in firms large and small, and in solo practice. Years ago he left his law practice to start a creative venture, and his reflections on that topic appeared in an article in the August 2014 issue of The Colorado Lawyer. His ebook, Life Beyond Reason: A Memoir of Mania, chronicles his misadventures and lessons learned about personal growth and transformation, which are the foundation of much of what he writes about here. If you enjoy reading this blog and would like to contribute a blurb to Kevin’s upcoming collection of these posts, please email Kevin at

Watch for Enlightenment, Apocalypse, and Other States of Mind, a collection of Kevin’s blog posts from the past three years, soon to be available as an eBook.

Tenth Circuit: No Error in Admission of Other Bad Act Evidence to Prove Intent, Motive, and Opportunity

The Tenth Circuit Court of Appeals issued its opinion in United States v. Nance on Tuesday, September 23, 2014.

Jory Nance used peer-to-peer file sharing software to send images of child pornography to an Oklahoma detective. The detective reported Nance to the FBI, who began surveillance on the house where Nance lived with his wife and two young children. When Nance noticed one of the agents, he began deleting files from his laptop and stopped downloading files. He also researched how to reformat his computer. Shortly thereafter, FBI agents seized his computer, which Nance admitted was solely his but falsely claimed had been inoperable for several months.

The FBI conducted a forensic analysis of Nance’s computer and was able to recover over 1,000 deleted images of child pornography. Additionally, the FBI was able to recover names of files with images that were not recoverable, and found that Nance had used his laptop during the period he claimed it was inoperable to access a nudism website. The United States charged Nance with multiple counts of receiving or attempting to receive child pornography. Nance claimed at trial he did not know the images were on his computer, but the jury rejected his defense and convicted him of eight counts of transporting child pornography (related to the files he shared with the detective) and 49 counts of receiving or attempting to receive child pornography. He was sentenced to 64 months in prison followed by five years’ supervised release. He appeals his convictions, arguing (1) the district court erred in admitting evidence of his other bad acts in violation of FRE 404(b)(2); and (2) the evidence was insufficient to prove he attempted to receive child pornography.

The Tenth Circuit first addressed the other bad act evidence. The district court allowed admission of the evidence to prove motive, intent, and opportunity. In making this determination, the district court concluded the probative value of the evidence outweighed the potential for unfair prejudice. The trial court provided a limiting instruction when it was requested. The Tenth Circuit found no error, because the limiting instruction was available and could have been used each time potentially prejudicial evidence was admitted had it been requested. Because defense counsel did not object to the form or content of the limiting instruction, and did not request it each time potentially prejudicial evidence was introduced, the Tenth Circuit found no error.

As to the second claim, Nance asserted the jury could not prove he attempted to receive child pornography because the charges were based on recovered file names without accompanying images. However, the jury did not need to find Nance actually received child pornography — all the jury needed was to find that Nance believed he would receive child pornography. The graphic nature of the file names was enough to prove Nance’s intent.

The Tenth Circuit affirmed all of Nance’s convictions.

Tenth Circuit: Unpublished Opinions, 10/22/2014

On Wednesday, October 22, 2014, the Tenth Circuit Court of Appeals issued no published opinion and three unpublished opinions.

Jones v. Cannon

Craig v. McCollum

United States v. Stewart

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