Law Week Colorado

By David Forster
LAW WEEK COLORADO

The Colorado Supreme Court on Monday gave broad scope to the rule that protects prosecutors’ opinions about cases from disclosure.

The decision stems from an El Paso County case in which a criminal defendant sought disclosure of the prosecutor’s work in a different but related case.

Last September, Brittany Angel was in a car with three other people as sheriff’s deputies attempted to serve an arrest warrant on one of the passengers.

The driver tried to drive away and allegedly ran over a deputy’s foot. The deputy shot him and Angel then allegedly pushed the wounded driver out of his seat and drove the car away. The car was found hours later outside an emergency room with the driver’s dead body inside. An arrest warrant was issued for Angel and she eventually turned herself in.

Angel, who faces a host of charges from the incident, asked for the prosecutor’s investigation and findings regarding the shooting by the deputy. The prosecutor refused, but the trial court ordered that the information be disclosed.

The trial court said that the prosecutor’s exemption from disclosing work product under Colorado’s Code of Criminal Procedure applies only to work related to the case at hand — here the prosecution of Angel.

In his ruling overturning the trial court, Chief Justice Michael Bender first noted that it is well established that the work product exemption applies only to prosecutors’ opinions and impressions about a case, and not to factual matters, which must be disclosed to a defendant.

But whether the exemption applies only to work product prepared for the case at hand or to all cases remained an open question. In other words, can a defendant in one case force a prosecutor to turn over opinion work product prepared in another case.

Bender said the answer is no.

“We hold that the protection of prosecutorial work product, under Crim. P. 16(I)(e)(1), extends to opinion work product prepared by the prosecution in anticipation of any criminal prosecution,” Bender wrote.

“If we were to hold that Crim. P. 16(I)(e)(1) applies only to protect opinion work product created in anticipation of the case before the court, then a prosecutor, when investigating a criminal episode in the future, would have a substantial incentive to refrain from candidly and thoroughly evaluating a case for fear that her mental impressions, legal analysis, and trial strategies would be discoverable by defendants in future cases.”

The case is 2012-CO-34.

LAW WEEK COLORADO

CENTENNIAL — Five candidates clamoring for the coveted seat at the 18th Judicial District Attorney’s Office will debate for the first time this evening in Centennial.

Primaries are a few months away, but four Republicans are vying to run against Democratic candidate Ethan Feldman, a former Arapahoe County judge who stepped down from the bench to run for DA. The Republican candidates are George Brauchler, Leslie Hansen, John Topolnicki and Robert Wareham. Current 18th Judicial DA Carol Chambers will step down from her post this year due to term limits.

The debate will take place in the South Metro Denver Chamber of Commerce offices in Centennial at 5 p.m.

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LAW WEEK COLORADO

LOUISVILLE — A Louisville attorney charged with prostitution will have his first appearance in Boulder County Court Thursday morning.

Daniel M. Lucas, a sole practitioner, was arrested and charged with prostitution from a Dec. 11 incident where he allegedly offered cash to a 22-year-old pizza delivery man in exchange for sex. The alleged victim told police Lucas asked for extra condiments with his pizza. When he returned with the requested items from his car, he found the lights out in the home with Lucas on his knees offering extra cash if he could perform fellatio on him.

Lucas is still listed as active in the Colorado Supreme Court Office of Attorney Regulation. He was admitted into the Colorado bar in 2006. A man of same name and age ran against Paul Weissman for state House of Representatives in 2008 and lost. Lucas will appear at 9 a.m. in Courtroom F, according to information from the Boulder County Court docket.

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Jerry Rhea, the former owner of scandal-plagued Quality Paving and Quality Resurfacing, has been convicted of theft in a fraud that cost Adams County taxpayers hundreds of thousands of dollars, The Denver Post reports.

A jury in Adams County convicted Rhea this morning of 23 separate counts. Prosecutors argued during trial that Rhea overbilled Adams County for paving jobs or was paid for work the company did not do, The Post reported.

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LAW WEEK COLORADO

DENVER–A Denver attorney and an Illinois federal judge recently co-authored a book on child exploitation, released Monday.

The book, “Child Exploitation and Trafficking: Examining the Global Challenges and U.S. Responses,” was co-authored by T. Markus Funk, a partner in the Denver office of Perkins Coie, and U.S. District Court Judge Virginia M. Kendall, from the Northern District of Illinois.

“We wanted this book to serve as a first-line resource for clear, practical thinking on the range of complex, and often misunderstood, investigative, prosecutorial, and rehabilitative issues surrounding child exploitation cases,” Funk, a former federal prosecutor in Chicago, said in a release. “Each year, more than two million children around the world fall victim to commercial sexual exploitation. The numbers of children sexually abused for non-commercial purposes are even higher.”

The book takes a deep look at investigation techniques, sentencing and current statutes related to child exploitation cases, and defines traffickers.

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LAW WEEK COLORADO

DENVER–The last testimony will wrap up today in the trial of Bruco Strong Eagle Eastwood, the man responsible for the 2010 shooting at Deer Creek Middle School that injured two students, the Denver Post reports.

Eastwood, who has suffered from schizophrenia for 10 years, is pleading not guilty to 15 charges including first-degree murder. Prosecuting Eastwood is Jefferson County District Attorney Scott Storey, and presiding over the trial is Jefferson County District Judge Christopher Munch. Representing Eastwood is public defender Kate Spengler.

Three doctors have testified that Eastwood wasn’t in his right mind at the time of the shooting, referencing his violent journal entries leading up to the crime.

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By Ali McNally, LAW WEEK COLORADO

DENVER—Hospital staff were incorrect when they told Perrish Cox’s alleged victim in September 2010 she had to pay $500 for a rape kit unless she filed a police report.

A law passed in 2008 eliminated the requirement for victims to pay the cost of rape kits, “even if the victim does not want to participate in the criminal justice system.”

According to the affidavit in question, the victim declined to have a forensic rape test after hospital practitioners said she had to pay $500 “because she could not afford the test on top of the $300 ER visit plus other fees.” Hospital staff told the victim the fee would be waived only if she filed a police report, but the victim said she “only had a suspicion and she absolutely did not want to falsely accuse someone of raping her.”

This contradicts C.R.S. 18-3-407.5, 3(b), which says:

A victim of a sexual offense shall not bear the cost of a forensic medical examination that includes the collection of evidence that is used for the purpose of evidence collection even if the victim does not want to participate in the criminal justice system or otherwise cooperate with the law enforcement agency, prosecuting officer, or other government official. The division of criminal justice in the department of public safety shall pay the cost of the examination.

Neither the victim nor hospital staff were at fault, says Karen Moldovan of the Colorado Coalition Against Sexual Assault, because the law is so new.

“[The victim] did everything absolutely right, and no hospital is to blame,” she said. “When changes happen to a statute, sometimes it takes a while for people to get the gist of what it means.”

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The brothers who run the world’s largest liquor store – Daveco Liquors – face racketeering and theft charges after authorities say they cheated Colorado and the City of Thornton out of hundreds of thousands of tax dollars, The Denver Post reports.

In a 52-count indictment issued late Wednesday, prosecutors allege that the Sawaged brothers faked merchandise returns for millions of dollars worth of booze that never existed, allowing them to avoid paying sales taxes they actually owed, The Post reported.

Denver criminal-defense attorney Craig Truman of Craig L. Truman P.C. has signed on to represent Hani Sawaged. Other attorney assignments are pending.

Read the press release here.

Read the indictment here.

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By Ali McNally, LAW WEEK COLORADO

DENVER–The Colorado Trial Lawyers Association awarded its Case of the Year Award to attorneys who represented Tim Masters in a civil lawsuit against the Eighth Judicial District.

Masters v. Gilmore, et al. found the Eighth Judicial District wasn’t immune from suit in the wrongful conviction of Masters in the 1987 murder of Peggy Hettrick in Fort Collins. Masters was convicted in 1999 and sentenced to life without parole.

The winning attorneys were David Lane, Darold Killmer and Rebecca T. Wallace of Denver civil rights law firm Killmer Lane & Newman, LLP; Maria Liu of Greeley law firm Collins Liu & Associates, LLP; and David Wymore of David D. Wymore, P.C. in Boulder. Accepting the award were the attorneys from KLN; Liu and Wymore were absent due to family obligations. Masters himself was also absent because he was traveling out of the country.

Other finalists were attorneys from KLM for its work representing Yemeni detainees in Guantanamo Bay, as well as Hollynd Hoskins and Ben Sachs from Leventhal Brown & Puga for their pro bono work in Dunn v. University of Colorado School of Dental Medicine, et al., a case involving a woman with developmental disabilities whose teeth were extracted without her consent. A full summary of the finalists and winning case can be found here.

Editor’s Note: This is a snippet of an article in the May 16 print edition of Law Week Colorado.

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LAW WEEK COLORADO

DENVER–A bill that would create a diversion program for those who solicit services from prostitutes passed its third reading Wednesday in the state House 51-14, and now heads to Gov. John Hickenlooper.

Under the bill, first-time offenders could avoid jail time by opting to enter a diversion program that would educate them about human trafficking. Advocates for the bill, including Boulder attorney Beth Klein, say the program reduces recidivism rates. Other cities that have adopted similar programs include Atlanta, Chicago, San Francisco and Washington, D.C. Sponsoring the bill was Senate President Brandon Shaffer, D-Longmont.

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