May 19, 2019

Archives for April 2015

Tenth Circuit: Federal Court Must Defer to State Court Findings of Knowing and Intelligent Miranda Waiver

The Tenth Circuit Court of Appeals issued its opinion in Al-Yousif v. Trani on Friday, March 6, 2015.

Naif Al-Yousif, a native of Saudi Arabia who studied English in the United States for several months, participated with his two roommates to rob and murder a friend who was visiting from Saudi Arabia and dispose of his body in a dumpster. After the killing, Al-Yousif fled to California, but his brother convinced him to return to Colorado. Upon his return, Detective Guigli arrested him and took him to the police station and questioned him with another officer, Detective Martinez, while videotaping the interview. Detective Martinez read a Miranda advisement, and Al-Yousif nodded while the advisement was being read. Martinez asked Al-Yousif if he understood and Al-Yousif said he did. He also signed the advisement form. He spoke to the detectives and made several inculpatory statements, then led them to the dumpster where they had disposed of the body. After that, the detectives returned with Al-Yousif to the police station and again advised him of his rights, at which point he requested an attorney.

Before trial, Al-Yousif moved to suppress the video of the police interrogation, asserting he had not knowingly and intelligently waived his Miranda rights. The trial court heard testimony and reviewed the video, and ultimately ruled to suppress the video despite its impression that Al-Yousif responded appropriately to questions and understood the questions posed to him, finding that the State failed to show a knowing and intelligent waiver. On interlocutory appeal, the Colorado Supreme Court reversed, ruling that Defendant sufficiently understood his rights and the waiver was therefore valid. The video of the interrogation was admitted at trial, and the jury ultimately convicted him. He was sentenced to life imprisonment without parole. On direct appeal, the Colorado Court of Appeals vacated his conviction for theft by receiving, merged the robbery and felony murder convictions, and otherwise affirmed the trial court. The Colorado Supreme Court granted certiorari but then denied it as improvidently granted. The court denied a petition for rehearing. Al-Yousif filed an unsuccessful petition for post-conviction relief and the Colorado Supreme Court denied review.

Al-Yousif then petitioned the U.S. District Court for the District of Colorado for habeas corpus relief. Although the habeas petition was not timely filed, the district court granted equitable tolling and ruled on the merits, finding that the Colorado Supreme Court’s decision was contrary to and an unreasonable application of Miranda. The State of Colorado appealed.

The Tenth Circuit first analyzed the district court’s grant of equitable tolling under the Antiterrorism and Effective Death Penalty Act (AEDPA). Ordinarily, habeas petitions must be filed no later than one year after the state judgment becomes final. In this case, the petition was filed three days late. Defendant asserted his petition was timely because the Colorado Supreme Court denied the motion for rehearing on April 10, 2008, according to a printout he received from the federal district court. However, the Colorado Supreme Court’s opinion was actually issued on April 7, 2008, and received by the federal court on April 10. When the state pointed out Defendant’s error, he asserted that he should be afforded the opportunity to assert equitable tolling. The district court applied equitable tolling without allowing the state to argue in response or make a record.

The Tenth Circuit held that this was error. Quoting prior case law, the Tenth Circuit held that equitable tolling is a rare remedy and should only be applied in unusual circumstances. Plaintiff’s error in this case could have been prevented if his counsel had spoken to defense counsel from the prior state court case, or had requested the opinion from the Colorado Supreme Court instead of relying on the information in the federal district court’s system. The Tenth Circuit reversed the district court’s grant of equitable tolling.

Next, the Tenth Circuit addressed Al-Yousif’s Miranda claim, and found that it owed little deference to the federal district court’s decision. In contrast, the Tenth Circuit found it owed great deference to the Colorado state court decision denying suppression of Al-Yousif’s videotaped interrogation. Under AEDPA, the federal court cannot grant habeas relief to a prisoner with respect to a claim the state court rejected on the merits unless the state court’s decision was contrary to clearly established federal law.

The Tenth Circuit analyzed the Colorado Supreme Court’s denial of suppression of Defendant’s statements, and found it applied a “totality of the circumstances” test and held that the circumstances surrounding the waiver showed that Defendant sufficiently understood his rights. Defendant asked for clarification when he did not understand a question or word during the interrogation, but did not ask for clarification during his Miranda advisement. The court further stated that a defendant need not understand the tactical implication of Miranda rights in order to waive them.

The Tenth Circuit noted that a defendant’s understanding of his Miranda rights is a question of fact entitled to deference under AEDPA. The Tenth Circuit averred it must defer to that finding unless the defendant shows clear and convincing evidence to the contrary, which the instant defendant did not do. The Tenth Circuit reversed the district court’s grant of habeas relief.

Colorado Court of Appeals: Announcement Sheet, 4/30/2015

On Thursday, April 30, 2015, the Colorado Court of Appeals issued no published opinion and 18 unpublished opinions.

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, 4/30/2015

On Thursday, April 30, 2015, the Tenth Circuit Court of Appeals issued two published opinions and three unpublished opinions.

Stone v. Simone

King v. Miller

Alvarado v. State of Utah

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

The Future of Law (Part 16): The New Law Masters

[I wrote last week about open source law. Check out this article on that topic from The Lawyerist that was posted the same day. Yes, the future of law is already here.]

rhodesI Googled “definition of expert” and got this: “a person who has a comprehensive and authoritative knowledge of or skill in a particular area.”

As we saw earlier in this series, the legal experts of the future will be systems thinkers who can fashion comprehensive, multidisciplinary, mass-appeal, consumer-oriented IT products with legal solutions embedded within them. And, as we saw last time, Law by Algorithm will increasingly provide the “think like a lawyer” artificial intelligence needed to create those products.

On the other hand, in his book Tomorrow’s Lawyers, law futurist Richard Susskind anticipates the ongoing need for lawyers (using human brains, not artificial intelligence) who can fashion legal solutions beyond the “think like a lawyer” work product.

  • Those lawyers will emerge as a new class of law masters.

Consider this quote from Ken Coleman. host of The Ken Coleman Show and author of One Question, in which Coleman captures the essence of the commoditization we’ve been talking about.

Society seems to favor mass production from its citizens. We dress alike, behave similarly, and speak with a common vernacular. Thanks to the gifts of the digital age, anyone today can become an “expert.”

In this blog interview with author Daniel Pink — bestselling author of Drive and A Whole New Mind — Coleman and Pink agree that what’s really needed is not expertise but mastery, and share some thoughts about how you get it. Further, check out this blog post on that topic from The Lean Thinker, which ends this way:

Put another way, the “expert” knows. The “master” knows that there is much to learn.

Here are this week’s predictions about the new law masters:

  • The law masters of the future will be valued not as repositories of knowledge, but for their inquiring minds, and especially for the ability to ask important, relevant questions whose answers aren’t already embedded in commoditized legal products.
  • The new law masters’ key proficiency will lie not in knowing the law (the job of experts), but in knowing how to develop it.
  • The new law masters will shape the law using innovative new methods not currently part of the law landscape. (What these might be is anybody’s guess.)
  • And the law itself will reward them for this expertise, by continuing to provide plenty of gray areas and unanswered questions, commoditization notwithstanding.

In his book The End of Lawyers?, Richard Susskind notes that disruptive innovation is disruptive to lawyers, not clients. This comment suggests another role for the new law masters:

  • They will profoundly and skillfully shape the assimilation of disruptive innovation into the law and law practice.
  • For example, they will have the sage ability to understand and guide the law and law practice when the law goes multimedia, as it inevitably will (another topic Richard Susskind takes up in The End of Lawyers?).

As for the latter, just try to imagine what the law will be like when it is detached from its Gutenberg printing press moorings in language and logic.

I can’t either.

Which is precisely why we’ll need the new law masters to help us out.

A collection of Kevin Rhodes’ Legal Connection blog posts for the past three years is now available in print from Amazon. Also available from Amazon as a Kindle, and as an ebook from Barnes & Noble, iTunes, Smashwords, and Scribd.

Colorado Supreme Court: Assault Sentence to be Consecutive with Any Other Sentence Being Served

The Colorado Supreme Court issued its opinion in People v. Diaz on Monday, April 27, 2015.

Sentencing—Statutory Interpretation—CRS § 18-3-203(1)(f).

Defendant was convicted of second-degree assault of a detention center employee in two separate cases. Trial for the second assault preceded trial for the first assault. Defendant finished serving his original sentence before trial in either case. The trial court held that CRS § 18-3-203(1)(f) requires that the sentence for the first assault be served consecutively to the sentence for the second assault. The court of appeals reversed on the ground that mandatory consecutive sentencing applies only to the sentence a defendant is serving at the time of the assault. The Supreme Court reversed the court of appeals’ judgment, holding that CRS § 18-3-203(1)(f) requires a consecutive sentence if, at the time of sentencing, the defendant is serving any other sentence.

Summary and full case available here, courtesy of The Colorado Lawyer.

Tenth Circuit: No Sixth Amendment Violation for Long Delay but Defendant’s Speedy Trial Act Rights were Violated

The Tenth Circuit Court of Appeals issued its opinion in United States v. Hicks on Friday, March 6, 2015.

Brian Hicks was arrested following a shooting in 2005, and at the time of arrest he was wearing a bulletproof vest and carrying a loaded .40 caliber Glock magazine. Because of his previous felony convictions, he was not allowed to possess these items, and was charged with one count each of possession of firearms and body armor by a convicted felon. More than a year later, Denver’s Metro Gang Task Force intercepted a call suggesting that Hicks was going to meet a drug dealer to purchase cocaine. After the meeting, police attempted a traffic stop, which turned into a chase. During the chase, Hicks threw a black bag from his car. Police later apprehended Hicks and recovered the bag, which contained several kilograms of cocaine. Hicks was indicted on multiple charges related to conspiracy to distribute cocaine in 2007. The government and Hicks engaged in a years-long period of motions and continuances, and finally on August 1, 2012, the district court ruled that all remaining issues had been resolved and the matter could be set for trial. On August 2, 2012, the government moved for the court to set a trial date. The district court ruled on this motion on September 27, 2012, when it scheduled a status conference and hearing on all pending motions for November 28, 2012. However, on November 15, Hicks filed two motions to dismiss on speedy trial grounds, one based on violation of his Sixth Amendment right to a speedy trial and one based on violations of the Speedy Trial Act. The district court denied both motions. Hicks eventually pleaded guilty in February 2014, reserving the right to appeal the denial of his speedy trial motions.

The Tenth Circuit first reviewed the denial of Hicks’ Sixth Amendment violation claims. The Tenth Circuit found the length of the delay, five and a half years, was presumptively prejudicial, and turned to the reason for the delay. Most of the delay was attributable to Hicks—he filed over forty unique motions, including several requesting deadline extensions or continuances; he changed counsel several times during the proceedings; and he requested that his federal prosecution be delayed until the conclusion of his state court proceedings. Although some of the delay was attributable to the prosecution, the majority of it was because of Hicks, and this factor weighed against him. Next, the Tenth Circuit evaluated whether Hicks asserted his right to a speedy trial, and found that although he first asserted his right in January 2008, he did not renew his assertion until August 2011. This weighed against Hicks also. Finally, the Tenth Circuit evaluated whether the delay prejudiced Hicks. Because he was already serving a life sentence on different charges, the delay did not cause pre-trial confinement concerns. Hicks also failed to make a particularized showing of increased anxiety from the delay, leaving Hicks to show that the delay “fundamentally hampered his ability to assist in his defense.” Hicks did not make this showing; although he was housed in the administrative segregation unit of the prison, he was generally able to meet with his legal counsel at any time during business hours, and he made numerous motions for continuances and extensions of time. The Tenth Circuit found no Sixth Amendment violation and affirmed the district court’s denial of Hicks’ motion.

Turning next to the Speedy Trial Act claims, the Tenth Circuit evaluated whether the delay in setting Hicks’ hearing exceeded the Speedy Trial Act’s 70-day limit, and found that it did. The district court issued its order resolving all remaining issues on August 1, 2012, and the Speedy Trial clock started ticking then. It was tolled for thirty days by the prosecution’s motion to set the trial, but the 70 days expired on November 10, 2012, and Hicks’ Speedy Trial Act rights were therefore violated. The Tenth Circuit reversed the district court’s denial of Hicks’ Speedy Trial motion and remanded with orders to vacate his convictions and determine if they should be vacated with or without prejudice.

Tenth Circuit: Unpublished Opinions, 4/29/2015

On Wednesday, April 29, 2015, the Tenth Circuit Court of Appeals issued no published opinion and two unpublished opinions.

In re Anderson: Anderson v. West

Craft v. Global Expertise in Outsourcing

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

The Colorado Lawyer: Abraham Lincoln—150 Years Later

Editor’s Note: This article originally appeared in the April 2015 issue of The Colorado Lawyer. Reprinted with permission.

By Charles F. Garciacharley garcia

Where justice is denied, where poverty is enforced, where
ignorance prevails, and where any one class is made to feel
that society is an organized conspiracy to oppress, rob and
degrade them, neither persons or property will be safe.

—Frederick Douglass, Emancipation Celebration
Washington, DC, 1886

April 15, 2015 marks the 150th anniversary of President Abraham Lincoln’s death. Lincoln served as U.S. President for little more than one term, and during that period, he worked to make all people of this country equal. He wrote the Emancipation Proclamation in 1862, declaring that “all persons held as slaves within any State or designated part of a state . . . shall be . . . forever free.” On April 4, 1864, the Thirteenth Amendment to the U.S. Constitution abolishing slavery passed the Senate, and on January 31, 1865, it passed the House of Representatives. It was ratified after Lincoln’s death on December 6, 1865.

Mindful of this powerful history, I began to reflect on recent events involving racial conflict occurring in the United States, including in Colorado, and to contemplate how far we have come in 150 years. We should not shy away from discussing racial conflict and related social and legal injustices simply because it is a difficult and sensitive subject for which there may be no single or immediate solution. I firmly believe that it is our duty as members of this honorable profession to reflect on the inescapable fact that people of color are over-criminalized, and constructively work toward reform. I hope this Message advances the discussion of the role we must play to ensure equality for all.

Atticus Revisted

On July 11, 1960, To Kill a Mockingbird by Harper Lee was published. Lee attended law school at the University of Alabama but chose to pursue a career in writing instead of the law. (She did receive an Honorary Special Membership to the Alabama Bar in 2008.[1])

To Kill a Mockingbird was published during a time of much racial tension in the United States. For example, in 1955, the black teenager Emmett Till was murdered in Mississippi for allegedly flirting with a white woman, and the Montgomery bus boycott of 1955 occurred after Rosa Parks was arrested for not giving up her seat on a bus to a white man. The book has been hailed by many in the civil rights movement for moving forward the dialogue on race and justice. For example, former Atlanta Mayor Andrew Young, who was the first African American since Reconstruction to represent Georgia in the U.S. Congress, stated that Lee’s book “inspired hope in the midst of chaos and confusion.”[2]

Searching for Answers

President Abraham Lincoln sought to bring racial justice to this country, and Harper Lee sought to bring social awareness to the fact that ninety-five years after the Emancipation Proclamation, equality was not a reality. Now, 150 years after Lincoln’s death and the ratification of the Thirteenth Amendment, there may be some sense of legal equality on the books, but equality across society is not a reality, and that is evident in the criminal justice system. For example, according to information as recent as November 2014:

Arrest rates are hard to come by, but African Americans are arrested at rates far exceeding their white counterparts. In many cities, the rate is 10 times higher and in some, it is as much as 26 times higher.[3]

According to the Bureau of Justice Statistics, “African American males are incarcerated at a rate 6.7 times higher, and Hispanic males 2.5 times higher, than their white non-Hispanic counterparts.”[4]

On February 22, 2015, when singer–songwriter John Legend accepted the Oscar for co-writing the song “Glory” from the film Selma, he commented, “There are more black men under correctional control today than there were under slavery in 1850.” The events highlighted by the death of a young African American man in Ferguson, Missouri have again focused national attention on the issue of race and justice in America. Similar events in Colorado have spurred protests in recent months. As citizens and as lawyers, we are striving to find answers to the questions raised by these events.

In December 2014, the Sam Cary Bar Association, in conjunction with the CBA and other bar associations, presented a program entitled “Community Forum—Waiting to Exhale: A Conversation About Race and Our Justice System.” The Forum was a panel discussion on long-ignored race-related issues brought to light by the events of Ferguson. Questions raised at the Forum focused largely on the manner in which our three branches of government should address these issues and the degree to which it is the responsibility of our justice system to rectify the unfair, unequitable imposition of punishment. Forum presenters focused on the Denver Police and Sheriff’s Departments, but the discussion also ventured into the role of our courts and legislature in addressing issues that ranged from excessive force by law enforcement to minority overrepresentation in our criminal justice system. The Forum itself provided no easy solutions to the problems raised by the community, but it continued to advance the conversation.

Legislating on Behalf of Children

The prevailing question is what lawyers can do to better address the issues pertaining to racial injustice in our society. It seems everyone has suggestions in these trying times, and one entity that is looking for answers is the Colorado Legislature, where, during the 2015 legislative session, it will be considering a bill dealing with petty tickets for juveniles. This bill began as a recommendation from the Juvenile Justice Task Force of the Colorado Criminal and Juvenile Justice Commission. The intention of the bill is to find a way to keep our children from becoming part of the criminal justice system. The belief is that once a child becomes part of the criminal justice system, it is very difficult to remove him or her from the system.

Tackling the overrepresentation of people of color in our criminal justice system begins with how we address the treatment of our children. It is a fact that our juvenile courts are overcrowded. The number of people of color adjudicated in those courts does not reflect our society as a community. We must begin our search for answers by looking at our courts and determining how our children reach the courts in the first place. This bill is a start to addressing the bigger issue of racial injustice.

The Challenge to the Justice System

We must begin to collaborate to solve the problems of over-criminalization, mass imprisonment, and minority overrepresentation in our criminal justice system. Although most people may agree on what the bigger problems are, they may differ on the causes. This should not stop us from working with our legislators, governors, mayors, judges, prosecutors, and defense attorneys to find solutions.

> A New York Times column on February 18, 2015 stated:

Usually bitter adversairies, Koch Industries and the Center for American Progress have found at least one thing they can agree on: The nation’s criminal justice system is broken. Koch Industries, the conglomerate owned by the conservative Koch brothers, and the center, a Washington-based liberal issues group are coming together to back a new organization called the Coalition for Public Safety. The coalition will have initial backing of more than $5 million, with groups also spending independently on their own criminal justice initiatives.[5]

> In her book The New Jim Crow,[6] Michelle Alexander focuses on how the enactment and enforcement of drug laws have created a society in our country where we legalize discrimination. She argues in the book that the U.S. criminal justice system functions as a contemporary system of racial control, and writes that “we have not ended racial caste in America; we have merely redesigned it.” The United States currently represents 5% of the world population but represents 25% of the world’s incarcerated population.[7] In her January 2012 appearance on the National Public Radio program Fresh Air, Alexander told host Dave Davies that “[p]eople are swept into the criminal justice system—particularly in poor communities of color—at very early ages.”[8]

> George F. Will wrote about the death of Eric Garner in New York for the Washington Post Writers Group (WPWG). On December 14, 2014, when talking about the death of Eric Garner in New York for selling illegal cigarettes, Will wrote:

Garner died at the dangerous intersection of something wise, known as “broken windows” policing, and something worse than foolish: decades of overcriminalization. The policing applies the wisdom that when signs of disorder, such as broken windows, proliferate and persist, there is a general diminution of restraint and good comportment. So because minor infractions are, cumulatively, not minor, police should not be lackadaisical about offenses such as jumping over subway turnstiles. Overcriminalization has become a national plague. And when more and more behaviors are criminalized, there are more and more occasions for police, who embody the state’s monopoly on legitimate violence, and who fully participate in humanity’s flaws, to make mistakes.[9]

> Professor Stephen L. Carter of Yale Law School has stated that [o]vercriminalization matters [because] making an offense criminal also means that the police will go armed to enforce it. However, today’s political system takes bizarre delight in creating new crimes for enforcement.[10]

> George Will states further in his WPWG article: The scandal of mass incarceration is partly produced by the frivolity of the political class, which uses the multiplication of criminal offenses as a form of moral exhibitionism.[11]

> A group known as Right on Crime,[12] a project of the Texas Public Policy Foundation and in cooperation with the Justice Fellowship, has brought together former U.S. Speaker of the House Newt Gingrich, political advocate Grover Norquist, Texas Governor Rick Perry, and others to examine the causes of mass incarceration in Texas and across the United States. A look at Right on Crime’s website, www.rightoncrime.com, will lead you to articles on attempts at criminal justice reform in such states as Ohio, Georgia, and West Virginia.

The Rule of Law—The Guiding Premise to Repairing Injustices

Racial injustice exists outside the criminal justice system, as well. Inequalities in our educational system, in the employment arena, and in housing serve as breeding grounds for racial injustice in the criminal justice system. We need to constantly work at airing and addressing the problems that exist in all areas of society. At the same time, we need to address the reasons behind the staggering rate of incarceration of people of color and the poor in our country. The answer to societal injustices does not rest in any one of the three branches of our government, but in all three.

Our legislators need to address over-criminalization, mass incarceration, and overrepresentation of people of color in the criminal justice system. Legislators around the country are now rushing to enact laws around police body cameras, excessive force laws, and grand juries for police misconduct. These are perhaps good ideas, but they may be no more than Band-Aids for a much larger wound in our society.

Our Executive Branch needs to examine the enforcement of our laws to find a way to enforce them without doing harm to society. Many of the issues are particular to the local community, and this is where change needs to begin. We need to take a new approach to law enforcement, especially as it relates to people of color. It is the job of our mayors, city councils, and county commissioners to examine our methodology of law enforcement and assure the words “Serve and Protect” have meaning.

Finally, the third branch of government, and the one we lawyers know best—the Judicial Branch—plays a vital role in questioning and responding to the many issues raised here. The acts of our legislators and of our Executive Branch will eventually be tested in our courts. The criminal justice system is unworkable if it is not vetted in our courts.

There is one thing that is paramount in effecting change in our criminal justice system, and that is adherence to the rule of law. Many believe—and rightly so—that the rich and poor are treated differently in our criminal justice system. This has to change.

The rule of law is simple: the same laws must apply to each and every one of us. It is the duty of our courts to look out into the audience of the courtroom and the cells of our jails and ask why there is such a broad discrepancy among those who are criminalized. Colorado comprises district, county, and municipal courts. The county courts handle misdemeanor criminal matters and are frequently referred to as “our people’s courts.” The municipal courts handle municipal ordinance violations. These are the cases that are the subject of George Will’s reference to the “broken windows” method of police oversight of our communities. These are the courts Michelle Alexander speaks of when she talks about sweeping people into the criminal justice system. Once they are swept in even at the municipal level, they become branded for life, thus creating hurdles to employment, housing, and other opportunities that lead to the vicious circle that keeps them in the criminal justice system.

Conclusion

As stated in The New York Times article, in writing about the Koch brothers and the center coalition:

With the huge costs to the public of an expanding 2.2 million person prison population drawing interest from the right and the conviction that the system is unfair and incarcerating too many drug and nonviolent offenders driving those on the left, the new coalition is the most recent example of ideological opposites joining together.[13]

We must continue to correct inequality in this country and we can begin by bringing equality to the justice system. Atticus Finch stated in his closing argument:

Now, gentlemen, in this country, our courts are the great levelers. In our courts, all men are created equal. I’m no idealist to believe firmly in the integrity of our courts and our jury system—that’s no ideal to me. That is a living, working reality.[14]

I am an idealist, and I firmly believe our courts are the great levelers. I also believe that we as lawyers and citizens, together with our communities, must begin the difficult work of collaboration, because the courts are not the only solution. President Lincoln stated in the Gettysburg Address that “all men are created equal.” Our Declaration of Independence also states, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights. . . .” We must reexamine what has occurred during the past 150 years and constructively work toward improving the direction we take toward a better future.


Notes

[1] “Alabama Supreme Court Awards Harper Lee Honorary Special Membership,” The Alabama Lawyer 252 (July 2008), www.alabar.org/assets/uploads/2014/08/Lawyer-July-2008_Web.pdf.

[2] See, e.g., American Masters: Harper Lee: Hey Boo (2010), www.pbs.org/wnet/americanmasters/episodes/harper-lee-hey-boo/about-the-documentary/1972.

[3] Heath, “Racial Gap in U.S. Arrest rates: ‘Staggering disparity,’”USA Today (Nov. 19, 2014), www.usatoday.com/story/news/nation/2014/11/18/ferguson-black-arrest-rates/19043207.

[4] See West, “Prison Inmates at Midyear 2009—Statistical Tables” (June 2010),www.bjs.gov/content/pub/pdf/pim09st.pdf.

[5] See Hulse, “Unlikely Cause Unites the Left and the Right: Justice Reform,” The New York Times(Feb. 18, 2015), www.nytimes.com/2015/02/19/us/politics/unlikely-cause-unites-the-left-and-the-right-justice-reform.html?_r=1.

[6] Alexander, The New Jim Crow (New Press, 2010).

[7] See NAACP, “Criminal Justice Fact Sheet,” www.naacp.org/pages/criminal-justice-fact-sheet. See also Ehrenfreund, “There’s a disturbing truth to John Legend’s Oscar statement about prisons and slavery,” The Washington Post (Feb. 23, 2015), www.washingtonpost.com/blogs/wonkblog/wp/2015/02/23/theres-a-disturbing-truth-to-john-legends-oscar-statement-about-prisons-and-slavery/?tid=sm_tw.

[8] See “Legal Scholar: Jim Crow Still Exists in American,” Fresh Air (NPR Radio, Jan. 16, 2012), www.npr.org/2012/01/16/145175694/legal-scholar-jim-crow-still-exists-in-america.

[9] Will, “Eric Garner, criminalized to death,” The Washington Post (Dec. 10, 2014), www.washingtonpost.com/opinions/george-will-eric-garner-criminalized-to-death/2014/12/10/9ac70090-7fd4-11e4-9f38-95a187e4c1f7_story.html.

[10] Carter, “Law puts us all in same danger as Eric Garner,” Bloomberg News (Dec. 14, 2014), www.commercialappeal.com/opinion/national-and-world-commentary/stephen-l-carter-law-puts-us-all-in-same-danger-as-eric-garner_29242740.

[11] Will, supra note 9.

[12] See www.rightoncrime.com. See also Denver Post Editorial Board, “Common ground on criminal justice reform,” The Denver Post (Feb. 20, 2015), www.denverpost.com/editorials/ci_27568775/common-ground-criminal-justice-reform?source=infinite. See also Hulse, supra note 5.

[13] Hulse, supra note 5.

[14] Lee, To Kill a Mockingbird (Grand Central Publishing, 1960).

Charles F. Garcia, Esq., CBA President, is a graduate of the University of Wisconsin. He worked in international tax as a CPA for Arthur Andersen & Co. and Price Waterhouse for ten years. He then went on to graduate from the University of Denver College Of Law and joined the Office of the Colorado State Public Defender, where he practiced as a criminal defense trial attorney for twenty-five years. He is an Adjunct Professor of Law at the University Of Denver Sturm College of Law and a teacher for the National Institute of Trial Advocacy. Charles retired in 2007 as the Office Head for the Denver Office of the Colorado State Public Defender. Charles was a campaign policy advisor and a co-chair to the transition team for Governor Hickenlooper and is currently Special Counsel to Governor Hickenlooper. In 2011, Charles came out of retirement to be appointed by Mayor Vidal as the Manager of Safety for the City and County of Denver.

Colorado Court of Appeals: Volunteer Traveling to Meeting Was Employee for Workers’ Compensation Purposes

The Colorado Court of Appeals issued its opinion in Teller County, Colorado v. Industrial Claim Appeals Office on Thursday, April 23, 2015.

Workers’ Compensation—Volunteer as Employee—Coming and Going Rule.

Claimant is the president and incident commander for Teller County Search and Rescue (TCSAR). All employees of TCSAR, including claimant, are volunteers who receive no monetary compensation.

On May 10, 2013, claimant left his home in Florissant to attend a fire chiefs meeting in Divide. Before leaving, he contacted the Teller County dispatch to “mark in service,” thereby notifying Teller County that he was en route to the meeting. As he was driving, he was struck head on by an approaching vehicle and sustained severe injuries.

He filed a workers’ compensation benefits claim, asserting that as a volunteer he fell within the definition of “employee” set forth in CRS § 8-40-202(1)(a)(I)(A). The administrative law judge (ALJ) agreed and the Industrial Claim Appeals Office(Panel) affirmed.

On appeal, Teller County argued that (1) claimant’s actions did not fall within the statutory definition of “employee” because he was driving to a meeting and not actually performing duties or engaged in an organized drill or training when the accident occurred; (2) the Panel’s inclusion of “planning and preparation” activities under the definition of employee broadened the scope of the provision beyond the General Assembly’s intent; (3) the Panel engaged in improper fact finding in affirming the ALJ’s decision; and (4) claimant’s claim should have been barred by the “coming and going” rule.

The Court of Appeals was not persuaded by these arguments. Attending fire chief meetings was clearly a part of claimant’s position and duties as president of TCSAR. It was, contrary to Teller County’s argument, a part of the custom and practice of claimant’s position. In addition, the Court reviewed the record and found no improper fact finding by the Panel. Finally, the Court found that the circumstances here fell squarely in one of the many exceptions to the coming and going rule, which ordinarily does not allow workers benefits if they are injured coming from or going to work. The order was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: All Separations from Base Period Employers Must Be Evaluated to Determine Unemployment Eligibility

The Colorado Court of Appeals issued its opinion in Nagl v. Industrial Claim Appeals Office on Thursday, April 23, 2015.

Unemployment Compensation—CRS § 8-73-108(5)(e)(IV)—Constitutional Right to Travel.

Claimant worked as a front desk agent for Destination Vail Hotel, Inc. He quit this job to be located closer to his girlfriend in Telluride. Claimant found a new position in Telluride, but was subsequently laid off.

Claimant then sought unemployment insurance benefits. A deputy for the division of unemployment insurance denied claimant’s request for benefits based on his employment with Destination Vail Hotel. However, claimant did receive benefits based on his work for his Telluride employer. Claimant appealed, and the hearing officer affirmed the deputy’s decision. The Industrial Claim Appeals Office (Panel) affirmed.

On appeal, claimant contended that the Panel’s decision was inconsistent with the express purpose of the Colorado Employment Security Act (CESA), which is to provide unemployment benefits to persons who are unemployed through no fault of their own. Whether a claimant is entitled to unemployment benefits attributable to wages paid by a particular employer depends on the reason for the separation from that employment. Because it was undisputed that claimant voluntarily quit his employment with Destination Vail Hotel, and thus was at fault for that separation, the hearing officer and the Panel did not err in determining that he was disqualified from receiving benefits from that employer.

Claimant also argued that the move to Telluride was not a disqualifying event under CRS § 8-73-108(4)(n). However, the hearing officer properly limited the proceeding to the circumstances surrounding his Vail job, not his subsequent employer. The fact that he accepted work after leaving the Vail job does not bear on whether he refused to accept work following the termination of his Telluride job. Thus, CRS § 8-73-108(4)(n) does not provide a basis for awarding benefits to claimant based on his employment with Destination Vail Hotel.

Claimant further argued that the hearing officer’s application of CESA violated his right to travel, as protected by the Colorado Constitution, because it effectively penalized his right to move within the state. To succeed on an “as applied” challenge, a party must show that the statute is unconstitutional under the circumstances in which the party acted. Here, the loss of benefits resulting from claimant’s decision to quit his job to move closer to his girlfriend is not a constitutionally significant restriction. The order was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Amended Complaint Could Not Avoid Jurisdictional Time Bar Because It Did Not Relate Back to Original Complaint

The Colorado Court of Appeals issued its opinion in Auxier v. McDonald on Thursday, April 23, 2015.

CRCP 106(b) Time Limits in Relation to CRCP 106(a)(4).

The Fritzes obtained a building permit to construct an accessory structure at a Salida address adjacent to plaintiff Auxier’s property. Auxier objected and appealed several decisions related to the project to the City of Salida Planning Commission. The Planning Commission affirmed the issuance of the building permit on January 10, 2013.

On January 25, Auxier filed a complaint in the district court, alleging four claims for relief and naming the Salida City Administrator, the Fritzes, and Chalk Creek Initiative, LLC as defendants. Auxier filed an amended complaint on March 25, seventy-four days after the Planning Commission’s final decision. The amended complaint added the City of Salida, the City Council, and the Planning Commission as defendants. It also added a CRCP 106(a)(4) claim against the Planning Commission.

Defendants moved to dismiss the claims against them. The district court found Auxier’s CRCP 106(a)(4) claim untimely because it had not been filed within twenty-eight days of the Planning Commission’s final decision and did not relate back to the original complaint. It therefore dismissed this claim for lack of subject matter jurisdiction. Construing Auxier’s claim against the Administrator as seeking mandamus relief under CRCP 106(a)(2), the court dismissed it for failure to state a claim on which relief could be granted.

On appeal, Auxier argued it was error to dismiss his CRCP 106(a)(4) claim as untimely. He contended that it related back to his original complaint, which gave “ample notice” of facts giving rise to a CRCP 106(a)(4) claim against the Planning Commission. The Court of Appeals disagreed. Auxier’s original complaint did not give notice of a claim against anyone in the City other than the Administrator, and did not give notice of any claim regarding abuse of discretion or exceeding its jurisdiction of any governmental body. Under these circumstances, his original complaint did not give ample notice of a CRCP 106(a)(4) claim against the Planning Commission, and the district court properly treated Auxier’s claim against the Planning Commission in the amended complaint as a new claim.

Auxier further argued that CRCP 106(b) permitted him to add a Rule 106(a)(4) claim after the twenty-eight-day limitations period expired because his original complaint alleging other claims for relief was filed within twenty-eight days of the Planning Commission’s final decision. The Court disagreed. Auxier’s original complaint did not seek review under CRCP 106(a)(4), so his amended complaint seeking such review did not relate back to his original complaint. The judgment was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Attorney Fee Award in Traverse Proceeding Limited to Fees Incurred to Prepare, File, and Prosecute Traverse

The Colorado Court of Appeals issued its opinion in L&R Exploration Venture v. CCG, LLC on Thursday, April 23, 2015.

Garnishment—Attorney Fees Under CRCP 103 § 8(b)(5).

This is the second appeal in a garnishment proceeding. In the first appeal, intervenors challenged the district court’s order allowing garnishment of their bank accounts to satisfy an underlying judgment in favor of L&R Exploration Venture and its participants (collectively, L&R plaintiffs). A division of the Court of Appeals affirmed the order, concluding that the district court did not err in (1) determining that intervenor CCG is the alter ego of judgment debtor Jack Grynberg; (2) concluding that Grynberg and his alter egos had made voidable fraudulent transfers to intervenors Gadeco, Pricaspian, and Celeste Grynberg; and (3) allowing L&R plaintiffs to garnish the bank accounts of those intervenors.

Intervenors challenged the district court’s order awarding L&R plaintiffs attorney fees and costs under CRCP 103, § 8(b)(5), which states “[a]t any hearing upon a traverse, the court shall make such orders as to reasonable attorney fees, costs and expense of the parties to such hearing as are just.” The Court held that it was error to award attorney fees and costs not incurred to prepare and file the traverses of the intervenors’ challenges to the garnishments or to subsequently prosecute the traverse proceeding. It held that such an award is limited, in a successful traverse action, to only the attorney fees and costs incurred by the garnishor to prepare, file, and prosecute the traverse, and, in an unsuccessful action, to the attorney fees and costs incurred by the putative garnishee to defend against the traverse. The order was vacated for a recalculation of attorney fees and costs.

Summary and full case available here, courtesy of The Colorado Lawyer.