Colorado Springs Criminal Lawyer Blog

No contact means No Contact: SHE TEXTED ME FIRST!

Tue, 11 Sep 2012 11:33:05 -0700

So, something happened, and there is now either a criminal protection order or a civil protection order that mandates you have no contact with the opposing party or alleged victim of a criminal charge. You know you are not allowed to contact him or her. But then you receive that text message. It’s innocent enough. The text asks something like “did you remember to mail the check for the utilities?” Or it says that she’s “really, really sorry, can we just talk about it?” And the temptation begins. You know you are not allowed to contact her—the judge said so. But, she contacted you first. It’s okay to just respond as long as you didn’t initiate the contact, right? Wrong.

The above scenario is one we see often in our practice. The message might seem legitimate, earnestly requesting information that your significant other needs. Or it might seem like an attempt to reconcile. Or it might be some nasty and hurtful comment. Truthfully, it doesn’t matter what it is. You cannot respond. Avoid the urge. Take a cold shower. Leave your phone at home and take a walk around the neighborhood. Wash your car while singing the theme to Scooby Doo. Do anything--but DO NOT respond!

Negotiation with a Gun to Your Head.

Tue, 07 Aug 2012 07:15:39 -0700

By Caryn J. Adams
Partner and Attorney
The Gasper Law Group, PLLC

Why would a guilty man faced with the certainty of a long mandatory prison sentence hire a lawyer? Why would he do so if he had confessed everything about his crime to the police? If there were no holes in the District Attorney's case against him? If he had no hope of "beating the rap"?

First, a case that appears hopeless may not be. A good defense attorney is trained to look for any weakness in a case, especially weakness that someone with less legal experience might overlook. For example, was that confession taken in a manner that meets Constitutional muster? Did the police commit any Fourth Amendment violations in their investigation? Does the evidence gathered meet the strict elemental requirements of the statute? If drugs were seized, were they tested? Was all laboratory work done correctly? As one of my clients recently put it, "If the District Attorney is going to hold a gun to my head, I'd like to know if it's loaded."

But let's assume for a moment that the experienced criminal defense attorney examines the evidence and determines the case is airtight. What then?

I am convinced even cases that may appear hopeless can benefit from negotiation with the District Attorney. Given the number of cases filed every year, the District Attorney simply cannot try every single one. Very few people indeed are prosecuted to the “fullest extent of the law.” The resources are just not there. About ninety-five percent of all criminal cases are resolved through the plea bargaining process. This obviously includes a vast number of cases where the person accused is, in fact, guilty.

Parenting and Discipline - Can I Spank My Kids?

Thu, 02 Aug 2012 10:19:53 -0700

Authored by Staff Attorney
The Gasper Law Group, PLLC

As a child, when I was really out of line, my parents would occasionally spank me. No doubt I deserved it often, probably far more than I was actually spanked. My parents always explained why it was that I was being spanked, and used an open hand to my buttocks. It was always done in love, but no doubt sometimes it hurt to sit down afterwards.

Through the years I have met numerous friends that were also punished with physical discipline. A couple of my favorite stories involved grandparents that, when my friends were out of line, would make them go into the woods to choose with which switch they wanted to be spanked. This was apparently a difficult decision. A thinner stick may leave a thinner welt, but would travel much faster and could sting more. Whereas a larger stick would leave a bigger welt, but the thickness of it prevented it from striking so quickly. No doubt, such use of switches for physical discipline of children seems archaic now to many people. Yet, my friends seem to have turned out quite well despite it and are even thankful for it.

However, in this day and age of the nanny-state knowing better than parents, local officials’ seemingly constant belief that they know best, and mandatory reporting requirements of virtually anyone that is paid by the government and works with children to report anything that could be potential child abuse, things are no longer so simple. Ironically, in an age where children are more and more incorrigible and undisciplined, the government works to limit traditional methods of instilling discipline and values in our children. For many, there is a narrow list of acceptable ways to discipline children. If you stray outside that list, or discipline in any way that can be considered strict, you are out of line and must be punished. And unfortunately the system is certainly not consistent in what is worthy of punishment.

It’s Not a Felony or Anything, So Do I Really Need an Attorney?

Fri, 13 Jul 2012 11:22:25 -0700

By Staff Attorney
The Gasper Law Group, PLLC

As a Criminal Defense Attorney, this is a question that I hear often during initial consultations. It’s a reasonable one. After all, no one wants to spend lots of money on a lawyer if he or she doesn’t have to do so. And in this economy who has money to waste?

The question puts me in a difficult position. How do I answer? I do not want the potential client to think I’m overstating the need for an attorney just so he or she will hire me and my firm, but I also need to speak the truth. The truth is that yes, you need an attorney! Whether you hire the Gasper Law Group or someone else, you need to hire someone.

The first and foremost reason is the obvious one: you are not an attorney. This is not a bad thing. (Even attorneys acknowledge that there are reasons for lawyer jokes.) However, criminal law is a complicated area that is as much art and experience as it is book knowledge. Criminal cases carry far reaching (and often surprising) repercussions. They can result in loss of a driver’s or professional license, jail time, probation requirements, substance abuse therapy, trouble finding a job, or even a prohibition from carrying firearms. To use a common example, if you have a leak under your sink, you call a good plumber. If you need to face the weight of the Colorado legal system, call a good lawyer.

There is no magic in criminal law, but an experienced criminal attorney can quickly see what a layperson never will. When reviewing the facts of a case, an experienced attorney immediately works through a laundry list of questions. Was the contact proper? Was there probable cause for the officer to request a blood or breath test or to make an arrest? Was the expressed consent advisement proper? Do the facts as alleged actually match the elements of the crime? Was the damages calculation done correctly? Are the suspect’s admissions admissible in court? Can the case be tried without the cooperation of the victim? Is the offer from the District Attorney a good one or unreasonably harsh?

Facebook and My Space and Twitter, Oh My!

Wed, 21 Dec 2011 09:09:50 -0700

By Staff Attorney
The Gasper Law Group, PLLC

In the modern age, most Americans rely on social media to stay connected with friends and family. Social media is an outlet for personal expression and often people post their deepest fears and secrets for the world to see. Unfortunately, sometimes the ease of using social media outlets for self expression leads to posting items that might best be kept private. Job recruiters warn employees entering the job market against posting items that could influence prospective employers. Politicians and celebrities have lost credibility and careers over items posted on social media sites. Just look at the controversy currently surrounding New York Congressman Anthony Weiner who allegedly sent out a Twitter stream with a lewd photograph attached. Regardless of the outcome of any investigation into how the incident occurred, Mr. Weiner’s career will be forever linked with this allegation.

While these incidents are well documented in the American mind, what many people do not consider is the impact social media can have on pending litigation. In the domestic litigation arena, when the mud starts flying in the courtroom, postings on websites can come back to haunt a party to a case. Items posted on a Facebook or My Space page can be used to show that someone is an unfit parent. Postings disparaging the other parent can be used to demonstrate threats or an inability to foster a loving relationship between the children and the other parent (an important consideration for the Court in determining which parent should have the majority of parenting time with the children.) Bragging about purchases like new cars or partying can come up in litigation to show that a party isn’t obeying Court orders not to use marital assets during a divorce.

"Defense rests without calling the Defendant to testify

Sun, 11 Dec 2011 19:11:32 -0700

By Tonya L. Holliday
Senior Paralegal
The Gasper Law Group

This was the recent headline in the Casey Anthony jury trial. So you’re asking yourself, “If she’s innocent, why wouldn’t she want to testify in her own defense?” Casey Anthony was accused of murdering her child, Caylee. One might think if she was innocent she would want to shout it from the rooftops instead of sitting stoically next to her attorney as he stands in front of those jury members and says, “The defense rests.” However, there are several good reasons why defense attorneys may counsel their clients to not testify.

In preparing for a jury trial an attorney and the Defendant need to discuss the pros and cons of having the Defendant testify. For instance, if the Defendant has prior felonies he or she may not want to testify and have prior convictions used against him or her. Typically in criminal cases, the jury will not hear about a Defendant’s former felony convictions unless the Defendant takes the stand. There are other good considerations as well: Is the circumstantial (non-witness) evidence presented by the prosecution strong or weak? Will the testimony of the Defendant have any weight in deciding guilt or innocence? Is the Defendant credible and likeable? Defense attorneys want the jury to like their client, to sympathize with him or her, and understand the situation as presented by the defense. Sometimes, although certainly not always, that goal is better achieved by the Defendant’s silence.

If the Defendant has multiple cases – an open domestic violence case, a divorce case and a restraining order case for example – the Defendant and his attorney may not want him to testify where statements made in one case can be used to impeach the Defendant in one of the other cases. A Defendant might not want to make a statement in the Permanent Protection Order Hearing, only to have the opposing party get a copy of the transcript to use against him in the domestic violence case.

Whether or not to testify is a decision that must be decided on an individual case basis. Each Defendant must decide this with his or her attorney based on several factors which may be determined at trial (e.g. a last minute decision based on the progress of the case) or can be decided in advance depending on the circumstances of the Defendant’s case.

When you have the right to remain silent, but not the ability!

Sun, 11 Dec 2011 19:01:53 -0700

By Mark C. Cohrs
Senior Investigator
The Gasper Law Group

The average law abiding citizen will likely have very few occasions to interact with the police. One of the most common occasions will probably occur because you committed a traffic violation, or because you became the victim of a crime or a perceiving eye witness to an incident. In the latter cases, the police will typically interview you about particular details of the event that are professionally referred to as the six essential elements of information; Who, What, When, Where, Why and How. This process is generally referred to as an interview, although some procedures simply involve the process of you writing out a statement about what happened.

In the case of the traffic offense, the seasoned officer will cleverly elicit an admission of wrong doing by asking “Do you know why I stopped you?”, to which you will probably feel compelled to answer something to the effect of “I was speeding” or “I didn’t come to a complete stop at the stop sign.” Human nature seems to cause us to believe that admitting the offense will dissuade the officer from issuing the ticket. Where that may work on some occasions, your admission will more often be documented in the officer’s affidavit in the same quotation marks as written above.

A Paralegal's Tale - Patience, My Friend

Thu, 08 Dec 2011 13:48:22 -0700

By Sean N. Young
Paralegal
The Gasper Law Group

As a criminal defense paralegal, it’s my job to take care of many of the little things that happen in between court appearances. While the attorneys are negotiating with the DA in and out of court, I might be performing some other task that a law degree does not require. I might help a client get in contact with an alcohol education provider, or I might draft a Motion to Appear by Telephone for client that lives out of state, and might be financially unable to travel back to Colorado for a given court hearing. Among all the things I do, probably the most frequent thing is answer any non-legal questions (or at least find the answer) that a client might have.

A criminal case can be a very stressful process for a client and their family. The outcome is not always favorable and if the defendant suspects this, they might just want a sentence sooner than later, just to get it over with. (I can confidently say however, that the outcome of any given case is almost always more favorable with an attorney’s help than without it). Clients often ask me when their case is going to get dismissed, or whether the next court appearance is going to be the last. The best way for me to describe a criminal case is that you have to think of it as a marathon, and not a sprint.

We all understand how stressful the process is, but as a defendant, you must have endurance for the race; you must be the tortoise, not the hare. Everybody knows the story: the slow moving tortoise beats the speedy hare. The process takes time and you must have patience. You never know what piece of evidence, or key witness might step forward and turn the case in a completely different direction. When our attorneys meet with a potential client, they will always tell the client that the most important thing to look for in an attorney (beyond competence in the subject matter) is someone the client can trust. It is the attorney’s job to keep you in the loop as to what is going on in your case, and they will not make serious decisions without advising you on the likely or probable outcome first.

Your Castle Under Siege: When the Police Can Enter Without a Warrant

Thu, 08 Dec 2011 13:31:27 -0700

By Caryn J. Adams
Managing Partner - Criminal Division
The Gasper Law Group

The Supreme Court recently handed down its decision in the Kentucky v. King case in an opinion written by Justice Alito. The vote was 8 to 1. The case will stand for the proposition that law enforcement may rely on exigent circumstances to enter your home even if they don’t have a warrant and even if the actions of law enforcement contributed to or caused the exigency. Generally, the Fourth Amendment of the U.S. Constitution prevents the police and their agents from entering a person’s home without (1) a warrant, (2) consent, or (3) “exigent circumstances.” Exigent means pressing or demanding, so exigent circumstances are those where the situation does not allow law enforcement to wait for a warrant. Traditionally, legally recognized exigencies fall into three categories: (1) the police are pursuing a fleeing felon, (2) there’s a risk that evidence will be destroyed if the police wait, or (3) there’s an emergency where someone’s life is or could be at risk.

They Didn’t Read Me My Miranda Rights!

Fri, 08 Jul 2011 14:04:53 -0700

By: Mark Cohrs, Chief Investigator
The Gasper Law Group

The common belief that police officers are always required to administer a Miranda Advisement when performing a lawful arrest is probably one of the greatest myths perceived by the general public, especially for those who have been involved in any unfavorable contact with law enforcement. Any of us who have watched cop shows or movies on a regular basis can likely cite those rights as well as any trained officer on the street. But just in case you haven’t actually heard those rights stated verbatim, here they are.

1. You have the right to remain silent.

2. Anything you say can and will be used against you.

3. You have the right to talk to a lawyer and have him present with you while you are being questioned.

4. If you cannot afford to hire a lawyer, one will be appointed to represent you before any questioning, if you wish.

Now here are a couple of phrases that you may not have heard during your Hollywood legal education classes.

Do you understand each of the rights I have explained to you?

Having these rights in mind, do you wish to talk to me now?

Both of these questions must be answered in the affirmative as a secured waiver of rights.

Domestic Violence - Not Always "Violent"

Wed, 29 Jun 2011 08:18:09 -0700

By Staff Attorney
The Gasper Law Group, PLLC

What do the words Domestic Violence mean to you?

I’ve found that most people think of Domestic Violence as involving very bad people that physically brutalize defenseless victims. Personally, I think of the movies Slingblade and Enough. Those movies featured dark antagonists that shamelessly controlled and severely beat their victims. As one might expect, however, Hollywood’s portrayal of Domestic Violence misses the reality mark.

Domestic Violence is defined in Colorado Revised Statute 18-6-800.3 as follows:

(1) "Domestic violence" means an act or threatened act of violence upon a person with whom the actor is or has been involved in an intimate relationship. "Domestic violence" also includes any other crime against a person, or against property, including an animal, or any municipal ordinance violation against a person, or against property, including an animal, when used as a method of coercion, control, punishment, intimidation, or revenge directed against a person with whom the actor is or has been involved in an intimate relationship.

(2) "Intimate relationship" means a relationship between spouses, former spouses, past or present unmarried couples, or persons who are both the parents of the same child regardless of whether the persons have been married or have lived together at any time.

A Funny Thing Happened On The Way To The Trial!

Sun, 31 Oct 2010 21:17:53 -0700

By Ericka L. Gasper
Criminal Defense Paralegal
The Gasper Law Group

Every now and then, it comes to my attention that there was a particularly unusual event that happened in a courtroom, or perhaps a humorous statement made on the record. While court proceedings are not generally regarded as “entertainment for the masses,” there are those times when it is just downright difficult to keep a straight face. While it could be argued that many of the semi-ridiculous courtroom quotations can be attributed to a lack of intelligence on the part of the speaker (or simply a desperate attempt to shift the blame), a number of past cases have proven that judges and attorneys are not immune to the desire to contribute to courtroom comedy.

1. Paper… Scissors… Rock on! In 2006, a Florida judge became utterly fed up with two attorneys who could not seem to come to a consensus on where to depose a witness. Rather than making a decision on his own, US District Judge Gregory Presnell decided to adopt what he called “a new form of alternative dispute resolution.” His ruling was as follows:

“At 4:00 P.M. on Friday, June 30, 2006, counsel shall convene… on the front steps of the [Courthouse]. Each lawyer shall be entitled to be accompanied by one paralegal who shall act as an attendant and witness. At that time and location, counsel shall engage in one (1) game of 'rock, paper, scissors.' The winner of this engagement shall be entitled to select the location for the 30(b)(6) deposition to be held somewhere in Hillsborough County during the period July 11-12, 2006."

It would seem that no one is above the old “Rock, Paper Scissors” form of resolution, even after obtaining a law degree and passing the Bar exam. Conflict resolution methods change as people age; yet, as this judge has suggested, perhaps we should abandon the more complicated forms of problem management and resort to a more primitive solution.

2. I’m a Barbie girl… in a Barbie world. A lawsuit in 2002 between MCA (who released the song “Barbie Girl”) and Mattel (maker of the Barbie doll) turned out to be a back-and-forth exchange regarding copyrights and …well… hurt feelings. Mattel claimed that the song did not paint a positive picture of their toy, while MCA argued that their song was more a social commentary than an attack on the plastic icon. After long arguments that turned into corporate banter, a less-than-impressed judge ruled that “the parties are advised to chill.”

Clearly, judges must often take on a parental role in the courtroom. Thankfully, some see fit to do so with a sense of humor. Unfortunately, the judge did not follow his remarks with the classic “Don’t make me turn this car around!”

BAIL BOND…not just for TV!

Sun, 31 Oct 2010 21:08:04 -0700

By
Tonya L. Holliday, Senior Paralegal
The Gasper Law Group

Have you ever wondered about the people you see on Dog the Bounty Hunter or people being arrested on COPS?

Well, once they are arrest and processed into jail a bond, otherwise known as bail, is either granted or denied based on several factors: the charge, employment history, residence, standing in the community, criminal history, just to name a few.

I recently had lunch with an office manager for a local bondsman and she enlightened me about their requirements. The requirements for using a bondsman to bail out of jail are based on the charge and the bond amount.

For instance if you have a bond of $100,000 you would need a percentage of that amount up front and a homeowner or business owner to co-sign and put up collateral for your bond to ensure you will be in court at every court hearing. If it’s a bond amount of $5,000 you would need a percentage of that up front and that’s it.

If you are on bond there are certain conditions that are required. You must have permission from the court and your bondsman to travel out of state. You must get consent from your bondsman to stay on bond between certain hearings. The bondsman is required to know where you are at all times. They usually have “bounty hunters” they employ if you miss court.

It's important that you check with your bondsman, and attorney to make sure you are doing everything that is required of you.

FINDING A LAWYER, INTERVIEWING AND CHOOSING YOUR DEFENDER

Sun, 31 Oct 2010 20:59:09 -0700

By Allen C. Gasper
Senior Partner
The Gasper Law Group

I’ve Been Charged, Now What?

During my years of practice in the criminal court system, I have been amazed constantly at the number of clients who have taken the time to seek legal advice, attend an initial intake appointment and spend time discussing the specific aspects of the case, only to ignore totally the advice given by the professional they spent time trying to locate. I find this amazing because it appears the client has convinced themselves that if the word is not spoken, if the possibility of culpability is not discussed, if the “less favorable” facts are not revealed, reality will conform to the client’s desired outcome. Not only is this foolish, it is often the most dangerous of paths, fraught with obstacles which may never be overcome.

It is generally accepted that individuals who find themselves exposed to potential liability for mistakes, errors in judgment or criminal charges determine that the best road is to do everything possible to present themselves in the best light available. While this may allow the individual to “sleep better” at night, it does not remove the circumstances which created the desire to shield themselves in the first place. Additionally, playing the “if I don’t acknowledge it, it will go away” game will only serve to waste precious time in preparation of a case which might be negotiated successfully utilizing the truth. So, what do you do when you visit an attorney for the first time after having been charged with a crime?

1. Be Honest. Believe me, your case is not the first of its kind. In fact, the chance a seasoned criminal attorney has seen your type of case before is overwhelmingly on your side. Attorneys are very busy and no one wants to chase the rabbit down the rabbit hole, simply because someone has made the decision to live in Alice’s Wonderland.

2. Don’t Tell Every Lawyer Your Story. Attorneys love to give advice. It’s what we do. We’ve been trained to do it and we love to share the fact we believe we are right with everyone we know. Not necessarily fun at the cocktail party but it is what every client seems to desire in the quest to feel better about the situation in which they have found themselves. It is my experience that potential clients are seeking that “feel good” experience during the initial intake and they will “cherry pick” all of the good stuff, ignoring the bad. The danger in telling your story to every lawyer you visit is that you will subconsciously incorporate the good advice of the lawyers visited into the story until it will be virtually impossible to remember the facts of the actual event when the desired lawyer is chosen. A seasoned criminal defense lawyer will wait until he has reviewed the District Attorney’s file thoroughly prior to debriefing the client on his version of the facts. The more accurate the client’s version of the facts – in light of the evidence presented in the DA file – the better chance the defense attorney has in developing a strategy to “counter-punch” the prosecutor’s already jaded view of the incident. Remember, sometimes the DA and police detectives have had been developing their version of the incident for months prior to turning their sights in the client’s direction.

3. But, if I am honest, I will certainly be found guilty. Not necessarily. Remember, just because the incident actually occurred, doesn’t mean there is no avenue to lessen the responsibility that might be pushed in your direction. As an example, someone who commits a homicide may be completely justified depending on the facts presented. Self-defense? Possibly, but not readily recognized by the attorney if the justification for the client’s actions is hidden by the client’s misrepresentation of the facts during the initial stages of the case’s preparation. Further, the client compromises his own credibility when it appears the “story” has been changed in order to accommodate a potential defense.

Our Criminal Defense System - A Costly Endeavor

Wed, 06 Oct 2010 08:21:58 -0700

By Robert R. Gray
Firm Administrator
The Gasper Law Group

“I’m innocent and I shouldn’t have to pay for my legal defense”. “It’s just not fair”.

So, this is just my opinion… but after being involved in the system for over a decade, I truly believe that we have a “Legal” system and not a “Justice” system. I guess it would be a little strange to end the Pledge of Allegiance with “ … with Liberty and Legal for All.” However, it is often times a reality that there is no “Justice” in our “Justice System” when an innocent defendant has to pay significant costs for hiring a lawyer to defend him or her without the ability to recover those expenditures.

Regardless of the innocence of the defendant, the cost of legal representation is tremendous. Like I often tell potential clients, “I bet this wasn’t in your budget!” Especially in these difficult economic times, the cost of a Criminal Defense Lawyer is often a burden that defendants and their families have trouble coping with.

OK … so what’s my point? Well, I guess it’s time to brag a little. You see, I have the honor of working as the Firm’s Administrator for a Criminal Defense, Domestic Relations, and Civil Law Firm that has as one of its mottos “helping people first”. That is, at the Gasper Law Group, we understand that the cost of legal services is very expensive and most often not a consideration in one’s budget. It’s why from the inception of the firm, Allen C. Gasper, the firm’s Senior Partner, made the statement that we would do whatever we could to ease the cost burden of hiring an attorney.

This philosophy has made it so The Gasper Law Group has some of the lowest retainers in the business, work out individual payment plans; payment plans with ZERO INTEREST, has set low Flat Fees for Criminal Defense, and works with clients to assist them in affording the very best in legal representation at a cost that the average family can afford. It’s why attorneys at The Gasper Law Group do not “talk money” with clients. They are truly all about “helping people first” and when you are talking to an attorney at The Gasper Law Group, they are talking to you about your matter; their only worry!