19 December 2005

Wisdom From Colorado's Supreme Court

The Colorado Supreme Court has informed us today both of the recipe for a Molotov Cocktail (footnote 1) and guidance on how far a prosecutor may properly go in a closing argument to claim that the defendant and their witnesses are lying. The line between what is and is not permissible in closing arguments turns out to be one not immediately obvious to those not familiar with the etiquette of such affairs.

The case also presents a very typical scenario in appellate work which ordinary people often aren't familiar with. The Colorado Supreme Court found that the Prosecutor in this case did cross the line of permissible conduct. But, in only one instance did the defendant's attorney object at trial to the impermissible conduct (which objection the trial judge sustained), so the Colorado Supreme Court went on to ask if the unobjected to actions of the prosecutor were plain error, and whether any error that was plain was harmless (i.e. result changing) in a somewhat intertwined analysis. In the end (with a single judge dissenting), the Colorado Supreme Court found that while the proper procedures were not followed in trial due to a prosecutorial abuse, that the unobjected to mistakes were not so serious that the conviction should be overturned.

From the perspective of the defense lawyer involved, the appellate court thus essentially says that the defense lawyer was negligent in not objecting, but that there were no damages suffered as a result by the defendant. Of course, because there will not be a retrial, we can't really know whether or not the prosecutors prejudicial statements made a difference, we have to take the appellate court's word for it. Something tells me, however, that the mood at happy hour of the attorney whose actions were expressly found by the Colorado Supreme Court to be improper will be jubilant, since the conviction was upheld, and not contrite, for being found to have acted improperly.

Note, don't try the footnote 1 recipe at home or you will end up like the Defendant, in prison for a very long time. Colorado is not gentle towards people convicted of "use of an explosive or incendiary device [felony 2], first degree arson [felony 3 and probably a crime of violence offense], attempted first degree assault [probably a felony 4 in this case], and the possession of an explosive or incendiary device [felony 4]." The ordinary sentencing range for a second degree felony in Colorado is eight to twenty-four years, plus five years parole, for a first time offender without aggravating circumstances, and in this case probably an identical sentencing range applies to the arson count which would be aggravated as a crime of violence. Realistically, even if this fellow is lucky enough to serve the sentences for these separate counts concurrently, this fellow isn't going to get a minimum sentence either.

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