This spring Hebets & McCallin conducted a national essay competition for writings related to criminal defense topic.  The winner of this year’s contest is Joshua Wilson from Kansas State University.  His essay appears in full below, and in the coming weeks several of the other notable essays will appear on our blog also.

An Argument Regarding the Delicate Safeguard of Jury Nullification

JOSHUA TANNER WILSON

Legal Communications Scholar

Sophomore, Kansas State University

February 2012

In the fall of 1670, William Penn, the future father of Pennsylvania, along with his codefendant, William Mead, stood trial before twelve of their peers for unlawful outdoor preaching which allegedly caused a public disturbance. After preliminary deliberation, the jury returned a verdict finding Mead not guilty and Penn, “guilty of speaking or preaching to an assembly, met together in Grace-church street,”[1] but they declined to use the term ‘unlawful’ in their verdict. The court rejected the verdict, since it didn’t conform to the accusation of an ‘unlawful’ assembly, and ordered the jury to render a verdict that conformed to the accusation. After two days of confinement without food, drink, or other accommodations, the jury ultimately returned a verdict of ‘not guilty’ in the teeth of both fact and law. The Recorder of London fined the jurors for contempt of court and then threw them in jail until they paid the fine. One of the jurors, a man by the name of Edward Bushell, was granted a writ of habeas corpus by the court of common pleas which subsequently ruled that jurors could no longer be, “punished for not finding in accordance with the courts instructions”.[2]

Ever since this landmark decision in the history of western law, the question has been raised: Should the jury have the right to ignore the law when handing down their verdict? This practice, often labeled “jury nullification,” is just as applicable and controversial today as it was in 1670. Although not without pitfalls, the ability of a jury to issue a verdict that is at odds with the court’s interpretation of the law is a necessary element in the judicial system’s protection of the rights of the accused. Nevertheless, it should not be actively encouraged.

Many use the term ‘jury nullification’ pejoratively to infer that the jury has, in effect, done away with the law in question. In all but the rarest of cases (such as in the particular local mentioned by Neubauer and Meinhold where the prosecutor refused to prosecute a minor drug possession law “because jurors will not convict in possession-of-marijuana cases”[3]) the jury do not void the application of a law in its entirety; they merely bend it in a particular instance. As Guinther notes, “The law selected may not have been the one the judge would have preferred, may not technically fit the evidence, but the jury has rejected the law only in the narrow sense that it has chosen another; the one it has rejected remains in effect.”[4]. Thus, the term ‘nullification’ must be used loosely as the jury in such an instance is simply extending their scrutiny to cover a particular application of the law, not the law per se, in addition to the facts of the case.

The appropriate use of jury nullification can be justified on several grounds. Among other reasons, it is firmly established in precedent, cannot be practically eliminated, acknowledges the interplay of law and fact, gives common sense flexibility to the law, provides a check against majority rule, leads to the creation of more just laws, and favors the innocent. This wholehearted defense must, however, include the caveat that jury nullification should not be unnecessarily encouraged; this will serve to mitigate its potential for misuse.

This prerogative of the jury is firmly established in historical precedent. Without the ability to defy unjust application of the law, the jury is an empty right…and so it often was, until Edward Bushell. Ever since then it has been assumed that jury have the sole right to determine innocence and guilt, even when an acquittal seems to directly conflict with the law as interpreted by the court. The first recorded instance of jury nullification in Americawas in 1735 when a New Yorkjury acquitted Peter Zenger of libel since the words were commonly known to be true[5]. Since then it has been used to acquit apartheid protesters, prohibitionists, abortionists, war protesters, marijuana users, abolitionists, homicidal victims of abuse, and, perhaps most controversially, racist behavior, especially in the early 20^th century South. For every instance that one can find to praise it seems that one can find an opposite verdict to vilify.

From a practical standpoint, jury nullification is virtually inevitable and cannot be stopped without completely eviscerating the fundamental right to trial by a jury of one’s peers.  Since the jury has the ultimate jurisdiction over the factual guilt of the defendant, they will always have the power to acquit in variance to the facts. Juries can always give a surprising verdict; to disregard it because certain individuals, or even a majority of society, don’t like the verdict would be a violation of double jeopardy and reduce the jury to a powerless formality, not much more than a rubber stamp. Although seeming to disapprove of jury nullification, Neubauer and Meinhold cede that “Indeed, the right to trial by jury creates the right to jury nullification.”[6] Since we cannot attempt to eradicate jury nullification, the question then becomes primarily normative: Ought juries to take their views of the law into account in their verdict and to what degree should such behavior be encouraged or discouraged?

It is convenient to talk as if there is a clear distinction between law and fact, however, in reality, the two are so intertwined that it would be practically impossible to completely separate the two. Even as far back as colonial times, locals, such as Virginia, acknowledged that “most of the time there would be no clear distinction between facts and law”[7]. For instance, the jury has the obligation to determine whether a particular defendant’s actions meet the definition of a particular crime; although ostensibly a question of fact, such a determination inherently requires an interpretation of the potential applicability of the law and, at least a subconscious, judgment as to which, if any, particular codified sanction is appropriate for the alleged behavior. In the words of Professor Thomas Regnier, “Today, we might use the word “holistically,” or we might say that the jury looks at the “gestalt” of the case and then reaches a verdict. The two must be decided together because a law without a fact is meaningless…What has come to be called “jury nullification” today is merely an occasional byproduct of a jury’s right and duty to determine the law and the facts complicately.”[8]. He also notes that the ability of the jury to return a “special verdict,” where they only state their findings on specific facts, further demonstrates that a normal verdict is a holistic determination which, at least implicitly, takes the law into account as well.

Not every case before a jury, with its own unique combination of circumstances, will perfectly fit the law, which is seemingly unbending in its written form. This can occasionally create dilemmas when the letter of the law would seem to unreasonably apply to a relatively harmless behavior. That is what the jury trial is for. It supplies that flexibility to legal rules which is essential for justice and popular contentment. Regnier quotes the legal scholar John H. Wigmore on the subject, “Law and justice are from time to time inevitably in conflict…Now this is where the jury comes in. The jury, in the privacy of its retirement, adjusts the general rule of law to the justice of the particular case. Thus the odium of inflexible rules of law is avoided, and popular satisfaction is preserved.”[9] From the 1735 acquittal of Peter Zenger to the 2009 acquittal of honorably discharged veteran Keith Alexander of gun possession charges, jury nullification has consistently been used in this manner to balance the general law with the community’s notions of justice.[10]

Many have objected that such a view of the jury process subordinates law to popularity and majority whim. Such a criticism seems quite potent until one realizes that what is referred to as ‘law’ is merely the majority rule of a larger community. Thus the difference is not so much one of type as of magnitude. Viewed in this manner, the ultimate ability of the jury to acquit regardless of majority interpretation of law is a way to protect the rights of minorities in the application of the law. As the preeminent Harvard Dean Roscoe Pound noted, “Jury lawlessness is the greatest corrective of law in its actual administration. The will of the state at large imposed on a reluctant community, the will of a majority imposed on a vigorous and determined minority, find the same obstacle in the local jury that formerly confronted kings and ministers.”[11] A jury of peers is distinctly suited to this task as they are most likely to have a sense of a particular community’s norms and sensibilities. This approach was perhaps most powerfully stated by Sean Overland, “The jury applies community values and beliefs to the administration of justice. As such, the jury verdict is more than a statement of fact; it is also an expression of popular will.”[12] Such a view of the jury’s essence leads him to the conclusion that particular verdicts are no more right or wrong than an election, since, in both instances, those within a particular community are expressing the will of that community in regards to how the law should be applied.

Sometimes the law itself is unjust. It certainly should not be assumed to be so, and should only rarely be treated as such, but in such cases the jury may be the final check to draw attention to unjust laws. In 18^th and 19^th century England many crimes that we would consider fairly minor today had prescribed sanctions clearly out of proportion to the harm inflicted by the miscreant. Due to the harsh penalties, many juries would engage in nullification by acquitting rather than impose a sentence of capital punishment. At one point, bankers even asked the legislature to repeal the death penalty for forgery because too many forgers were being acquitted by juries. In fact, “Historians maintain that the reluctance of juries to return verdicts of guilty during the period of the bloody code led to the decline of capital punishment in England.”[13] In these and other cases jury nullification has lead to more just laws.

Ruling on the law has even lead to a more just system in those cases where jury nullification is almost universally presumed to have gone awry. The repudiated practice of acquitting racially motivated crimes is often cited against jury nullification, however, “the revulsion and sense of shame fostered by that practice fueled the civil rights movement … spurred on the revitalization of the equal protection clause and, in particular, the recognition of the right to be tried before a jury selected without bias. The lessons we learned from these abuses helped to create a climate in which such abuses could not so easily thrive.”[14] The problem was jury selection, not nullification; even the abuses of nullification lead to better selection practices.

There are those that believe that the jury no longer needs the power to lay aside the law. Those who advocate such positions argue that jury nullification may have developed to check the power of an unelected, distant king and parliament, but “Now that our laws are made and enforced by officials who are answerable to the people, the theory goes, jury independence is no longer needed.”[15] This argument, however, fails to take into account the previously analyzed facts that jury discretion is still necessary as a safeguard for minority communities and is often necessary to adjust the law in a particular application.

The U.S Supreme Court of 1895 offered a much more direct critique. While acknowledging that there was nothing that could be done about a jury that choose to acquit in the face of uncontested facts, the majority nonetheless contended that since jurors “cannot be allowed to increase the penalties or create laws on their own, they cannot be allowed to reduce such penalties or nullify the law.”[16] In this, the Court erred in their reasoning. Our system is built on the fundamental principle that it is better to let the guilty go free than to wrongly convict the innocent. Accordingly, it is valid to draw a line by upholding an easier ability to acquit while still proscribing the ability to arbitrarily convict using an ex post facto standard. This ability of the jury is yet another way to ensure that the innocent do not wrongly suffer harm at the hands of a political majority.

The question naturally comes whether the ability of a jury to void a particular application of a law would not necessarily lead to a general anarchic disregard of law. Just such a fear was expressed by the 4^th Circuit Court of Appeals in United States v. Moylan, “No legal system could long survive if it gave every individual the option of disregarding with impunity any law which by his personal standard was judged morally untenable. Toleration of such conduct would not be democratic, as appellants claim, but inevitably anarchic.”[17] This assumption, however, is challenged by empirical research in the field, such as multiple studies cited by Hans and Vidmar which show that, “When the evidence was clear, the jury was inclined to follow the law, but when it was unclear, jurors felt liberated to give reign to their own sense of justice and equality…Deviations are not widespread, nor routine. When they do occur, they are not invariably irrational and capricious.”[18]

Many of these critiques of the jury system rest implicitly on an elitist attitude of, “law as a sacrament to be administered exclusively by an endowed priesthood,”[19] that the average juror is too ignorant and susceptible to emotion to be entrusted with such power. This fear is partially offset by the built-in check of the peremptory challenge. If the attorneys care about the outcome, both sides theoretically have the chance to exclude those with opinions they view as unreasonable. This mindset also ignores the aforementioned studies which consistently show that juries, by and large, are reasonable, view the evidence, generally only depart from the letter of the law in abnormal circumstances, and only bend the law to fit particular circumstances rather than categorically ignoring it.

As recently as 1972, in the case of U.S vs. Dougherty, the United States Court of Appeals for the District of Columbia Circuit, in a case involving vandalism by Vietnam war protesters, extensively reviewed precedent and upheld the ability of the jury to engage in judging both fact and law, noting that “The pages of history shine on instances of the jury’s exercise of its prerogative to disregard uncontradicted evidence and instructions of the judge. Most often commended are the 18th century acquittal of Peter Zenger of seditious libel, on the plea of Andrew Hamilton, and the 19th century acquittals in prosecutions under the fugitive slave law.” [20] Nevertheless, the court, in accordance with Supreme Court precedent of Sparf v Hansen (1895), refused to overrule the actions of a judge who had denied to the jury that they had such a right and had refused to allow the defendant’s counsel to make arguments to the jury based on their ability to judge the law in its application.

This bipolar approach has been the defining element of a delicate balancing act where juries are allowed to acquit in the face of ‘uncontradicted evidence,’ yet are frequently told that they have no such right. In fact, only two states have judges even mention in their instructions to the jury that the jury has jurisdiction over both law and fact.[21] This seemingly schizophrenic posture is, in fact, an attempt to balance the jury’s historic right to rule on the law with the desirability of the rule of law. “An equilibrium has evolved…with the jury acting as a “safety valve” for exceptional cases, without being a wildcat or runaway institution. There is reason to believe that the simultaneous achievement of modest jury equity and avoidance of intolerable caprice depends on formal instructions that do not expressly delineate a jury charter to carve out its own rules of law.”[22] In fact, most judges expressly dictate to the jury that they must accept the law as interpreted by the judge regardless of their personal feelings on the subject.

This balance has merit, but is controversial nonetheless. By comparing the average number of acquittals in the states that tell the jury that they have jurisdiction over both law and fact with the average in the greater majority of states that specifically deny that the jury has such a power, DiPerna concludes that “the jury system works as well with an explicit reference to jury nullification as without it.”[23] Hans and Vidmar, on the other hand, reference a systematic study by psychologist Horowitz where some juries were specifically told that they had the power to lay the law aside if applying it strictly would produce a result that they felt was unjust, he then compared the juries’ deliberations and outcome with that of juries where the jury’s ability to rule on the law was left unmentioned. Horowitz found that not only was the first group more likely to acquit, but “they spent less time discussing the actual evidence, and spent more time discussing nullification powers, the character of the defendant, and their own personal experiences as they applied to the case.”[24] With this knowledge, it seems that it may be best not to explicitly mention the jury’s ability to rule on the law and merely to accept it when it happens, as is periodically necessary, i.e. refrain from actively encouraging it.

Jurors are the conscience of the law, their unique role in our judicial system provides a way to balance analytical jurisprudence’s rigid adherence to the law with natural law and the social context of a particular event. This ability to judge the law under particular circumstances is one of the main reasons juries exist in the first place. If the jury can do no more than consider cold facts then what comfort is there in a trial by one’s peers? The defense of the jury institution itself is usually that they protect against unjust sentencing. Such is implied in the opinion of Byron White in Duncan v. Louisiana where the majority ruled that the right to jury was fundamental and applicable to the states, largely because “Fear of unchecked power…found expression in this insistence upon community participation in the determination of guilt and innocence…as a defense against arbitrary law enforcements for protection under the due process clause”.[25] Without the ability to check unjust application of the law the efficacy of the jury as a safeguard would be significantly mitigated.

Admittedly, it can be disconcerting to leave justice in its entirety to a group of 12 citizens; fortunately, research shows that it has been left in good hands. Not only is it futile to attempt to stand against the jury’s holistic jurisdiction over fact and law due to the interplay of fact and law and their de facto ability to acquit, limited use of jury nullification is firmly established in precedent, provides flexibility to the law on the books, safeguards rights against tyranny (whether by an individual or majority), aids in creating more just laws, and favors the innocent. When balanced by having judges not encourage its use, we can agree with   Hans and Vidmar that “[s]ome times the jury is at war with the law, but for the most part it is, in Kalven and Zeisel’s phrase, a ‘modest war.’…Regardless, the hard facts indicate that on the whole the jury behaves responsibly and rationally.”[26]

Notes

Hebets McCallin

Recently, over in the UK a man was concerned about the speed that people were travelling outside his house.  He estimated that people were driving about 20 to 30 mph over the speed limit.  Rather than continue to  wait around for the police to enforce the speed limit the man decided he would do something, and this was his solution:

The yellow device shown in the picture is actually a bird house.  The man built it to look exactly like speed trap cameras used in his area.  While he did say it has been very effective the city has not been so happy with his efforts and has asked him to remove the bird house.

Hebets McCallin

One of area enforcement that we see emphasized in Denver, especially around the stadiums and downtown, is the pursuit of ticket scalping.  There are some important things you should know about ticket scalping law in Colorado.  Denver police officers have been known to approach anyone who is holding tickets in their hands and ask them about what they paid for them.  This question should indicate to you that you are suspected of ticket scalping.  Remember you always have a right to remain silent and if you would like to discover why you shouldn’t talk to the police you can read more about that.

In the Denver metro area not all municipalities have laws against scalping a ticket or selling it for higher than its face value.  Inside the city limits, however it is illegal.  Sec. 7-294 of the Denver municipal code says that selling  ticket at a premium or selling a ticket to a broker or someone who you know to be scalping are both illegal.  However, Sec 7-294 also says that, “This section 7-294 shall not apply to tickets purchased over the Internet.”  This may not protect sellers of tickets over the internet, but it certainly protects buyers of tickets.  It is important to remember though, even if you purchase a ticket at a premium on a website you are not allowed to resell the ticket for higher than the value written on the ticket in Denver.    If you would like to conduct such a transaction you should contact city officials or check with the city code in your municipality to find out whether or not the transaction is legal.  Since most big venues in Denver are inside the city limits it is not a good plan to attempt to sell tickets near the event.

If you have been accused of scalping you should contact a criminal defense attorney.

Hebets McCallin

Everyone who contacts our law office asking for advice receives some form of free consultation with a criminal attorney.  For some people, they have a few simple questions which can be answered on the telephone, but for most cases that have been set for a court appearance we offer a Denver criminal defense attorney’s free consultation.  There are many reasons that anyone who is accused of should attempt to discuss the matter with a lawyer.

First, even small cases can produce a permanent criminal record.  While a charge in municipal court may not seem that concerning because the punishments most municipal courts can give is not extremely severe, even these cases still deserve serious legal consideration.  What may seem like a small charge with a simple explanation can create a permanent criminal record.  Many people find out months or years after taking a plea that the plea they took is harming their career.  The problem is the first time a lot of people consult with a lawyer about their criminal record is after they start having problems.  A free consultation with a criminal lawyer can clear up any confusion, and by speaking to a lawyer before you do anything you have the best chance to create a favorable outcome in your case.

Second, even if people have been offered a deal that seems desirable there are many complex parts to most pleas.  Many pleas can involve alcohol and drug monitoring, months of dealing with probation, and possibly the surrender of firearms and maybe all future privilege to own firearms.  It is very important before taking a plea that you understand what will be expected of you and that you can fulfill your requirements.  Violating the conditions of most pleas can create nightmare scenarios in the future.  Again, this is why it is important to make use of the opportunity for a free consultation with a lawyer before you start having problems with your plea conditions.

Finally, most people will have very few interactions with the criminal justice system in their lifetime.  Without a wealth of experience it is difficult to understand all the possible outcomes you might ask for.  There are a wide range of outcomes in the justice system besides guilty or not guilty at trial.  It is important for you to understand what you should be asking for and what options there are in your case so that you can make an informed decision.

If any of these things resonates with you contact our office at 303-756-3231 or visit the rest of our website for more information.

Hebets McCallin

As a number of recent news articles indicate across the country schools are increasing calling the police and children are increasingly being handcuffed for school discipline issues.  In Georgia a 6 year old girl was handcuffed because she was having a tantrum school officials could not bring in control.  Here in Colorado a sixth grader was arrested after a hall monitor questioned her and she attempted to go on her way.

Increasingly, acts that would have been dealt with internally at schools are being criminalized.  Especially as kids get older the police become more and more involved in discipline situations.  When kids are arrested there can be serious consequences.  Children in Colorado are subject to a separate juvenile justice system, but that system can still lead to time in a detention facility.  Additionally, if a child does receive a juvenile conviction that can negatively effect in future charge.

Juvenile records are also subject to different rules regarding whether or not they can be sealed.  It is important to discuss a case with an experienced juvenile defense lawyer so that you can understand if there will be any permanent consequences in a case.  Finally, a juvenile criminal attorney can help make sure that any negative consequences are avoided before a record or conviction is actually created.

Hebets McCallin

Ever since the medical marijuana boom started a few years ago here in Colorado, some weed-related legal issues have become a bit, well, hazy.  One of the issues we have seen in our practice is whether a medical marijuana patient with a state issued license to smoke may or may not continue to use marijuana while on probation for an offense.  The reason this is an issue is because a standard term of probation prohibits the probationer from committing any offense while on probation.  Even though the patient is compliant with Colorado state law in their possession/consumption of marijuana, they are still violating federal law when they burn one down.

Courts have been handling this issue in different ways.  Some jurisdictions, Jefferson County for example, prohibit anyone from using marijuana on probation whether they have their state card or not.  Other counties, such as Denver and Arapahoe, do not have blanket policies on the issue- the decision is left to the individual sentencing judges, and we have seen many of them allow for continued medical marijuana use on probation.  Dazed and confused?

Unfortunately for medical marijuana patients, clarity may be coming thanks to a recent decision by the Colorado Court of Appeals.  In People v. Watkins, 2012 COA 15 No. 10CA0579, a brand-spanking new case, the Court of Appeals reversed a trial court’s decision to allow a legitimate medical marijuana patient to use while on probation.  The Court of Appeals used the reasoning outlined above- that because marijuana use is still illegal under federal law, using it constitutes a new offense, which probation forbids.

But wait a minute- what about the fact that Colorado probation departments are perfectly OK with a probationer using other medicinal drugs? That’s right, Vicodin, Oxycontin, Percocet, and pretty much every other prescription drug are OK for a person on probation as long as the probationer can show that they have a script for them.  So why is the Court carving an exception for marijuana?  The Court of Appeals reasoned that because Colorado law only allows for “recommendations” for marijuana, it cannot be considered a “written lawful prescription.”

This appears to be the first binding precedent on this issue, and most courts will soon be following it.  What will be interesting is whether or not case will stand up after November if Colorado voters decide to approve Amendment 64- the ballot initiative aimed at fully legalizing marijuana in Colorado.   Until then, if you’re on probation for any offense in Colorado, any dreams you may have of toking up are hereby up in smoke!

Hebets McCallin

This week the Colorado legislature is moving forward on a bill to reduce prosecutors’ power in juvenile cases.   Currently, in Colorado for many types of felonies, a prosecutor can try a juvenile in adult court without any oversight from a judge.   This has several implications; some prosecutors are accused of using adult court to gain plea bargains from juveniles.   Additionally, this power can create permanent felony records for juvenile offenders who only have one offense.

Keeping a juvenile free of a criminal record is an important part juvenile criminal lawyer’s job.  A permanent criminal record can harm future jobs, college choices, or graduate school choices.  The new system would still allow for juveniles to be tried in adult court, however, a judge would have to agree with the prosecutor.  After similar reforms were passed in 2010 for 14 and 15 year olds use of this power has been cut in half.  This statistic seems to  indicate that judges were much more strict in using this power and protecting juvenile offenders.

Hebets McCallin

For many people, attending a Colorado Rockies game may be the highlight of a summer.  However, for some people misunderstandings or run-ins with other fans can lead to ejection or arrest when attending a Colorado Rockies game at Coors Field.

What to do if you get arrested at a Colorado Rockies Game at Coors Field

Whether you get arrested while at a Colorado Rockies game, or anywhere else, there a few things that you should always do.  First, you should respectfully decline to make any statements to the police.  There are many reasons to avoid talking to the police, which we have written about before.  To summarize, usually the police get their best evidence in a case from admissions that defendants make.  Many people feel that when they are a paying customer of the Colorado Rockies they should be given wide latitude in their behavior.  Typically the first contact involving an incident at a game is made by stadium security rather than police.  If you are able to cooperate with security and put the issue to rest you should.  Remember, however, that once the police at Coors Field get involved they will usually treat a Colorado Rockies fan like any other arrest suspect.  Once you have been contacted by the police if you do not comply with their instructions you may end up with more serious charges.  While we understand that every Colorado Rockies fan would probably just like to be left alone to enjoy the game we encourage fans to cooperate with the police while respectfully declining to speak about an incident.

Hiring an attorney when you have been charged with a crime at a Colorado Rockies Game

If you have been charged with a crime at a Colorado Rockies game these charges are just as serious as any criminal charge.    Hebets & McCallin regularly handles both arrests arising from Colorado Rockies games and the types of charges associated with these cases.  If you want experienced criminal attorneys who understand the very particular nature of being arrested at a Denver Broncos game Hebets & McCalin can help.  Here is some basic information you need to be aware of, even if we are only talking about a petty offense or misdemeanor you should know the answer to some very basic questions. If I enter a plea how is this going to affect my permanent criminal record? Am I exposed to any jail time? Is the prosecution going to be asking for anything I don’t know about? Bottom line if you don’t know the answers to these questions at a minimum you should set up a consultation with a lawyer who is seasoned with criminal law.

Hebets McCallin

During March 2012, the Colorado Senate has introduced a bill that would change the way people are sentenced for possession of drugs in Colorado.  SB 2012-163 is intended to prevent people who only posses a controlled substance from receiving a felony conviction.  A felony drug sentence can have serious consequences, as we have discussed before.

SB 2012-163 makes two changes to existing Colorado drug laws.  First, if you posses less than four grams of a controlled substance then you can no longer be charged with a felony, but rather only a class 1 misdemeanor.  Second, if you possess four grams or more of a controlled substance you can only be charged with a class 6 felony instead of a class 4 felony.   The important thing to remember about these changes is that they do not apply to offenses that involve the intent to distribute, only possession.  This means if a person has other factors which indicate distribution they can be charged under a more severe statute.

Overall, the goal of SB 2012-163 is to attempt to get drug addicts treatment and keep them clear of a felony conviction so that after they have received treatment they can more easily renter the labor force.  If you agree with these goals you should contact your Colorado State Senator or Representative and ask them to support SB 2012-163.

Hebets McCallin

This week the United States Supreme Court issued a pair of landmark rulings for criminal cases related to plea bargains. To understand the full magnitude of this decision it is important to remember that up to 97% of cases in criminal court are settled with a plea bargain.
In Lafler v. Cooper, the Supreme Court heard a case where a person was offered a plea bargain in a murder case. That person’s attorney incorrectly informed them that they could not be convicted of murder because the shots that were fired were all below the waist. The defendant appealed their conviction saying that their attorney had provided them ineffective counsel, since this legal advice was bogus. The Supreme Court said that it was acceptable to appeal a conviction when a defendant rejects a plea bargain because of ineffective counsel. The remedy is for the defendant to either receive a reduced sentence or, as will probably happen in most cases, be allowed to accept the original plea bargain and vacate the conviction at trial.
There are three primary things the defendant must prove in order to make these types of appeals. First, the defendant must show that they would have accepted the original plea bargain if they had not received ineffective legal advice. Second, the defendant must prove that the original plea agreement is better than the outcome of the trial that occurred. Third, the defendant must prove that the prosecutor and judge would have accepted the original plea agreement before trial.
These court rulings may create many changes in the criminal justice system. In the short term there may be a spike in these types of appeals. Additionally, Justice Kennedy recommended that all plea agreements be made in writing or on the court record. As prosecutors integrate these decisions they may change the procedure for rejecting a plea agreement so that their trials are not overturned.

Hebets McCallin