Reflections On Six Months As A City Attorney

Six months and a week ago, I started a new job as a senior assistant city attorney at the City ad County of Denver in the civil litigation section. We handle lawsuits brought against the City and County of Denver, and against City employees where the lawsuit arises from the employee's official duties.

The job

Most people who work in my section have backgrounds either in criminal case litigation, or in private sector insurance defense of personal injury cases. I was one of the fairly uncommon applicants who had significant prior experience in civil litigation with government entities. One of my main responsibilities at my first job in Colorado, in Grand Junction, was defending county governments all over Western Colorado from lawsuits, which is more or less exactly what I do now defending the City and County of Denver. In my subsequent private private of law, I had a low volume, but steady trickle of cases where I represented private parties in lawsuits against the government, in addition to having broad civil litigation experience making up about half of my practice in a variety of other areas in both state courts and federal courts. This has allowed me to hit the ground running, compared to many of my peers.

Fortunately, our office operates with a very high level of professionalism, and my co-workers are good to work for.

My current case load (which varies from lawyer to lawyer in my section based upon the lawyer's experience and aptitudes) is about 60% civil rights litigation (mostly, but not entirely, involving actions of the police and jail guards), about 20% plain vanilla personal injury litigation like motor vehicle accidents that is similar to what private insurance defense lawyers do but with a governmental liability twist, and about 20% litigating subpoenas and public record requests where there are disputes that go beyond what can be resolved by records custodians out of court.

Different sections of the City attorney's office handle employee discipline and employment related litigation, enforcement of ordinance violations, child protective proceedings in cases where there are allegations of abuse and neglect, and transactional/corporate counsel type work for matters like negotiating and monitoring compliance with contracts between the City and its vendors, drafting ordinances, lobbying the state and federal governments, and managing conflicts that arise between different city agencies and officials.

There are also some governmental agencies which many people think are part of the City and County of Denver, but which are not: the Denver Public Schools, the Denver District Attorney, Denver Health (the county's public hospital), the Denver Housing Authority, the Regional Transportation District (RTD), the Downtown Development Authority, the Denver District Court, the Denver Probate Court, the Denver Juvenile Court, and probably a few others that I've failed to mention. 

The Denver County Court is a unique hybrid court that combined the roles of the limited jurisdiction state government's county court found in other Colorado counties, and the role of a municipal court for the City and County of Denver where municipal ordinance violations are prosecuted.

The biggest change for me has been transitioning from being self-employed for two decades to being a salaried W-2 employee. 

Mostly, this is for the better and was an important reason to take this job. Instead of having to invoice clients and pester them to pay their bills, or to wait until contingent fee cases are converted into money at the end of a case, money just magically appears in by bank account without me even asking for every two weeks. I get paid vacations and sick days! I get my health insurance through an employer plan, a switch I made shortly before big cuts to Affordable Care Act subsidies for self-employed people seeking health insurance took effect. If I continue to work for the City for five years, I get a defined benefit pension. I have a public sector defined contribution plan to which I can contribute about 20% of my income. I can pay for my parking expenses with pre-tax dollars. I don't have to pay anything out of pocket to get IT support. My tax returns will get a lot less complicated starting in 2027 (I had some residual self-employment work and income wrapping up my private practice in early 2026). I don't have to deal with fixing broken copying machines, building maintenance, hiring employees, tax withholding for employees, office security, arranging telephone and internet service, balancing an attorney's trust account, and so on. I don't have to spend large chunks of time marketing and deciding which clients to sign up. My work is mostly (not 100%) confined to 9-5 on business days.

I also get to work in a place with good systems in place, with adequate administrative support, with competent fellow attorneys who can cover for you while you are sick or on vacation, and top quality legal research and office related software packages.

We still have to pay close attention to potential conflicts of interest in new cases (and conflicts of interest that can emerge during cases), so we can send conflicted cases to outside counsel. But, unlike my fairly brief stint in a multi-state law firm with about a thousand lawyers, I don't have to spend half an hour to forty-five minutes every day (like every single other lawyer in that entire law firm) screening new cases brought into the firm for conflicts of interest.

Best of all, except for particular phases of the small share of cases where there is a prospect of receiving an attorneys' fee award, I don't have to track every tenth of an hour of every single working day, since all of the work we do is for the same client and is very unlikely to be the subject of attorneys' fee litigation.

Insights into law and policy and legal practice

Most people, most of the time, are outsiders to government, sometimes spinning conspiratorial narratives about what they think happens behind the scenes in the criminal justice system, and in government more generally. In my subpoena and records request practice, and in civil rights cases, I'm on the opposite side of the fence, with more or less complete access to the full "behind the scenes" story.

I almost always know more about what actually happened, sometimes legally relevant and sometimes not, than the other lawyers in the case and that the judge. It is a rare case where I don't know more or less exactly what happened in all legally relevant ways within a month or two of receiving it, and often within a couple of weeks.

I have nearly full access to all relevant records and a full ability to interview the government employees involved in a context where they are more quickly forthcoming about what I want to know, than in the formal discovery process.

The truth isn't nearly as nefarious as conspiracy theorists and a plurality of civil rights lawyers would have you believe.

This isn't to say that law enforcement officers or jail guards never make mistakes that hurt someone, sometimes in ways that give rise to legal liability, and sometimes in ways that don't.

A significant portion of my job is facilitating the payment of reasonable settlements to people who have been legitimately wronged by the government or government officials. Sometimes a city employee is clearly at fault in a motor vehicle accident. Sometimes a law enforcement officer does cross the line and is in the wrong. The City pays out millions of dollars a year in settlements and judgments as a result.

Most settlement payments err on the side of being generous, in order to avoid the risk that a jury won't correctly evaluate liability and damages in a case and will award an excessive amount. 

A significant minority of jury awards reach the wrong result on liability or damages (sometimes for the government and sometimes against it), often (as post-verdict juror interviews reveal) for reasons that shouldn't be legally relevant or reflect misunderstandings that neither side's lawyers even contemplated were possible. Most of the time, juries reach verdicts that are close to being right, but not all of the time by any means (even when the lawyers and judges are doing their jobs correctly).

My rule of thumb (based upon the available academic literature on the topic, and confirmed by my personal experience) is that in a best case scenario where the lawyers and judges in a case are doing their jobs right and the law dictates a clear answer, is that the likelihood that a jury will reach the wrong conclusion is about 10%. 

The odds that the jury will reach the wrong conclusion rockets up, of course, when one or the other side's lawyers engaged in misconduct, or the judge makes a significant mistake (not always appealable), or there is litigation misconduct by a party in the case such as destroying or fabricating evidence or lying under oath (often not known to the lawyers). The most common problems, however, are lawyer incompetence or a bad ruling from a trial judge or sincere but incorrect witness memories about what happened, and not outright litigation misconduct.

Some kinds of suspicions about what is happening behind the scenes are more often correct than others. For example, I know (from having access to what is in them in cases where I move to quash subpoenas) that the vast majority of internal affairs files sought by defense attorneys in criminal cases that are withheld from them, truly aren't material to the outcome of those cases, even at the margins on credibility issues. The kind of conduct that law enforcement agencies, and governments more generally, care about for purposes of internal employee discipline, are only vaguely similar to the kinds of conduct that give rise to legal liability, or would be relevant in a criminal case in which an officer was involved in some way and is a potential witness.

Timelines

Different kinds of cases have different timelines. Records request cases and subpoenas are typically litigated over a period a week to a few months. Ordinary personal injury cases in which a defendant just happens to be a governmental entity, tend to be fairly simple cases that are resolved in a year or two once a case if filed, and are often settled sooner than that. 

Civil rights cases, and personal injury cases which are really civil rights cases in disguise, take one of two typical courses. Many of them are resolved very early on in initial dispositive motion practice and are often dismissed within a few months to a year with complete dismissals on the merits (or for failure to prosecute by a pro se party, i.e. a Plaintiff bringing suit without a lawyer). The civil rights cases that aren't resolved that way can take much longer, in part because they are often prosecuted in federal court which is much slower than state court, in part because interlocutory appeals (i.e. appeals brought prior to a final trial and verdict) are common in civil rights cases, and in part because these cases are sometimes more complex and require lengthy pre-trial discovery and motion practice. I have one case that will probably go to trial soon about eight years after the underlying incident (that involved a handful of people over the course of less than two hours in one place)  took place.

If everyone knew what I know as a governmental defense attorney know within two or three months of a case being filed, these cases could be resolved in six months and would be resolved more accurately than they are in jury trials. But, of course, part of the reason that I can secure this information so quickly is because the people from whom I receive the information know that what they share with me won't be used against them in court. Still, this observation does suggest that there is plenty of room for improvement in the process.

Also, a lot of the delay in civil litigation is a function of simply not having enough judges to keep their case loads small enough to allow them to make prompt rulings, and an overall litigation system that has adapted to that reality.

The quality of plaintiff's litigation

Another thing that my job gives me is a broad overview of the quality of the legal work done by the people who sue the City.

About half the lawsuits brought against the City are brought by pro se parties, or by lawyers whose legal work falls below the standard of care that should be expected from a reasonable competent lawyer. 

Indeed, the best pro se parties (maybe the top 5-10% of them) are doing a better job of litigating their cases than the worst lawyers that we see (although no pro se parties do an excellent job). There are a few lawyers in the Plaintiff's bar who are so incompetent that I am amazed that they passed the bar exam, although even they have basic literacy and some understanding of the process. But there are plenty of pro se parties whose literacy and understanding of the process is below that of an average high school student, who would benefit from representation by even an only marginally competent lawyer.

One of the better arguments for a "civil Gideon" system in which indigent people would routinely be provided access to lawyers by the state, the way that indigent criminal defends are, is that it would make the delays and confusions caused by incompetent pro se litigants largely go away making the whole legal system work much more efficiently.

Cases brought by incompetent litigants overwhelming get dismissed early on, or settled for amounts far less than a competent lawyer could secure.

Incompetent litigants tend to be particularly weak at investigating a case and gathering facts to support it, and in understanding at a more than superficial level the relevant substantive and procedural legal requirements for proving a case of governmental liability. Now and then, they do the right thing despite themselves, however.

Of course, part of the failure rate among these litigants is an inability to accurately judge if they have a legally meritorious case. I have definitely seen cases that were winnable or could have secured a larger settlement, that don't because they are brought by incompetent litigants. But probably 80%-90% of the cases brought by incompetent litigants wouldn't have been brought at all by competent lawyers, who could have identified the weakness in those cases at the outset and not filed suit. 

When I was in private practice, I probably turned away two or three potential clients a week, often potential clients who had heart wrenching stories of misfortune. But those potential clients either didn't have cases for which the legal system had a remedy, or had cases where the likely outcome of  their cases with competent legal representation would provide them with less economic benefit than the cost of competent legal representation, and would have greatly disrupted their personal lives and eaten up huge amounts of their personal time.

And, by the way, incompetence by lawyers isn't restricted to sole practitioners with little experience. I've seen multiple cases of grossly incompetent litigation from medium to large plaintiff's law firms (some of which are household names due to their advertising or due to prominent cases that they have litigated) by lawyers with significant experience.

This isn't to say that all litigants against the City are incompetent. About half of lawsuits against the City are brought by lawyers whose work is at least up to the standard of a reasonable competent lawyer, and a minority but good share of litigants against the city are represented by lawyers whose work represents the best practices in this work, are highly competent, and have screened potential clients in such a manner that they have chosen to represent plaintiffs with meritorious cases.

At least one case that I have handled so far involved a plaintiff who was represented by two successive incompetent lawyers, only to have the case pass to a third, highly competent lawyer that salvaged the case with some smart litigation decisions and was able to secure a settlement much higher than what the previous incompetent lawyers came close to reaching.

Sadly, there is very little that a person thinking about bringing a lawsuit can do to determine if their lawyer is litigating competently or not. That's why we have a bar exam in an attempt to impose at least some minimum standards, but this gatekeeping isn't perfect.

Admission to the bar allows you as a lawyer to handle almost any kind of case (patent law is an exception, and some states set a higher standard to determine if a lawyer is allowed to represent defendants in death penalty cases), subject only to their own self-determination about their competence.

But while being admitted to the bar usually means that a lawyer meets basic standards of literacy and can find their way to the courthouse, with a vague understanding of how the process works, the vast majority of lawyers (I'm an extreme outlier in this regard), have a far more specialized legal practice and predominantly handle a fairly narrow kind of legal work.

Probably a majority of lawyers don't litigate any civil or criminal cases on a regular basis, and instead do transactional work, legal compliance work, or provide counsel to senior corporate officials in their day to day activities.

It is rare for a lawyer to represent both plaintiffs and defendants in personal injury work. It is rare for divorce lawyers or real estate lawyers to handle personal injury or civil rights cases. It is rare for commercial litigators to litigate personal injury cases. It is rare for probate lawyers to do personal injury or civil rights litigation. It happens. I'm an example of that. But it is rare.

Unlike physicians, whose regulators have imposed both a general threshold professional qualification to become an M.D., and an additional professional qualification to practice in a particular medical specialty, the legal profession has almost no secondary level of professional qualification to practice in a particular legal specialty, like personal injury litigation, or civil rights litigation.

Most specialist legal practitioners do develop special expertise in the area where they practice, from working as a junior lawyer in a firm that has that kind of practice, from taking continuing legal education classes in that field, from researching the law and procedure in their own cases, and from the school of hard knocks. But it isn't systemic or uniform among specialist legal practitioners who often have significant gaps in their knowledge of the best practices for handling cases in their specialty.

This can be a particular problem in civil rights litigation where the law is more complicated than in many other areas of law, and where firm sizes tend to be small, so that many practitioners have never worked as junior lawyers under seasoned senior civil rights lawyers to learn the ropes. A fair number of lawyers with this kind of practice went to law school because of, and are driven by, a strong commitment to social justice, but couldn't find an employer in a field relevant to their objectives out of law school. So, they never received the kind of mentorship that they needed to become competent in their field as a result and are prone to making big picture conceptual mistakes and to bad legal judgment that hasn't been honed by more seasoned practitioners.

Hello Baby (Spoilers Below The Fold)

Hello Baby is a webcomic at Webtoons by Enjelicious, a South Korean comic author, who established herself with her first "big time" debut comic, Age Matters, which was recently completed after years of serialization. Hello Baby has been running for about six months and as I write, thirty episodes are available if you are willing to pay a modest price so you don't have to wait three weeks to read episodes for free.

Age Matters, one of the hottest titles in the romance comic genre at the time, was about a young woman filling in for a friend in her friend's job a cook and maid for a young CEO of a social media tech company who falls in love with him, that also has a strong supporting cast of secondary characters, and a backstory of melodrama involving famous models, villains motivated by jealousy and money, and rich family business chiefs looking for marriage alliances. Overall, the tone is cute and funny, if somewhat cliched. The most serious issues it explores, not very seriously, are the propriety of a woman dating a younger man, and the propriety of a woman dating her boss. It has a good chance of being made into a live action K-drama if this isn't already in the works.

Hello Baby is her sophomore romance comic effort. It is more serious, more down to Earth, and explores deeper emotions and issues related to modern marriage, parenting, love, responsibility, and our social instincts that deserve thought and discussion (but can't be discussed without revealing some spoilers from the first dozen or so episodes from what will probably be more than a hundred episodes when it's done, below the fold). It is also a huge hit and also has strong K-drama potential.

The State of Capital Punishment In Ohio

Jones was convicted of a murder committed in Ohio in 1997 for murdering a police officer trying to arrest him on outstanding felony warrants, and sentenced to death in 1998 following a sentencing hearing.

During the penalty phase, Jones’s counsel presented testimony from a clinical psychologist who diagnosed Jones with Antisocial Personality Disorder. The psychologist testified that Black men with this disorder (including Jones) would commit more murders—he claimed that about one in four “African-American urban males” suffered from the disorder, and the only treatment for them was to “throw them away, lock them up.” After hearing this testimony, the jury recommended the death penalty. The court accepted the recommendation and sentenced Jones to death. . . . 

In his post-conviction appeal, Jones did raise this ineffective-assistance claim and supported it with an affidavit from psychologist Hugh Turner. Dr. Turner, who had been contacted by post-conviction counsel, interviewed Jones and conducted new testing. In Dr. Turner’s view, Dr. Eisenberg’s diagnosis of APD was incorrect: Jones primarily suffered from post-traumatic stress disorder

How did Jones come to be betrayed in this fashion by his own court appointed lawyer?

Prior to the trial, held six months after he was indicted for murder, but the court wouldn't let him replace his court appointed counsel who he figured out was ultimately going to sabotage his case at the 11th hour.

the relationship between Jones and his appointed counsel deteriorated. Two hours after the jury was sworn in, attorney David Per Due filed an entry of appearance, having been retained by Jones’s family that day. The trial court held a hearing the following day to discuss the status of Jones’s representation. But after hearing from Jones and the attorneys, the court denied Jones’s motions for Per Due to substitute as counsel and for a continuance, finding that Jones’s relationship to his court-appointed counsel had not broken down beyond repair and that the request for a continuance was made in bad faith and for purposes of delay. The trial proceeded as scheduled with Doughten and Tobik representing Jones. At the close of trial, the jury found Jones guilty of aggravated murder. 

During the penalty phase, the court explained to the jury that they had four sentence options: (1) life in prison without parole eligibility for 25 years; (2) life in prison without parole eligibility for 30 years; (3) life in prison without the possibility of parole; or (4) death.

Appeals by Jones of the conviction and death sentence were rejected repeatedly by the Courts of Ohio, with the Ohio Supreme Court affirming the conviction and sentence on direct appeal in 2001, and a federal district court ultimately denying him relief in a collateral attack on the conviction and sentence.

But, after twenty-four years on death row, the U.S. Court of Appeals before the 6th Circuit vacates his death sentence, but not his conviction of the crime, for ineffective assistance of counsel.

This gross betrayal by his own lawyer and the expert witness his lawyer hired was corrected before any of the originally available sentencing options had been rendered moot after the incredibly prolonged appellate and post-trial litigation (which is typical of U.S death penalty cases). But spending twenty-four years on death row instead of in an ordinary prison sentence was an incredible psychological hardship and excessively severe punishment.

There was also a claim that his lawyers in the original murder trial failed to present evidence that another man had claimed to have murdered the police officer, but because this arguably could have been presented at that trial and was "harmless error" because courts found that the jury wouldn't have believed, this mistake by his trial lawyer went without a remedy and his conviction for murder was allowed to stand.

This is the quality of justice in Ohio's courts, which is very typical of cases in which the death penalty is imposed.

N.B. the 6th Circuit notes in a footnote that: 

During federal habeas proceedings, petitioner legally changed his name to Malik Allah-U-Akbar. For purposes of clarity and continuity, we continue to refer to petitioner by his former name.

You Can Lose Your Right To Bring Claims In Civil Lawsuits

You have to engage in extreme conduct to do so, but the Colorado Supreme Court has recognized its authority to bar abusive litigants from every bringing claims of their own in lawsuits without being represented by a lawyer. The right to defend a claim in a lawsuit without a lawyer is preserved for natural persons. 

The request to bar this disbarred lawyer from authority to litigate in his own name was made by the first law firm I worked for in Colorado, which is based in Grand Junction, Colorado and changed its name mid-litigation. He had brought 27 lawsuits related to the same matter over a decade, of which 26 were determined to be frivolous and duplicative.

This is from a September 13, 2021 official syllabus of a Colorado Supreme Court decision:

2021 CO 66 

No. 21SA147, In re Francis v. Wegener—Right of Access—Supervisory Power of the Court—Injunction Against Self-Representation. 

The supreme court makes the rule to show cause absolute and enjoins Robert A. Francis, whether acting individually or on behalf of a trust or some other entity, from ever again proceeding pro se as a proponent of a claim (i.e., as a plaintiff, third-party claimant, cross-claimant, or counter-claimant) in any present or future litigation in the state courts of Colorado. While the Colorado Constitution confers upon every person an undisputed right of access to our state courts, that right isn’t absolute. A party’s constitutional right of access to the courts must sometimes yield to the constitutional right of other litigants and the public to have justice administered without denial or delay. Such is the case when courts are called upon to curb the deleterious impact that duplicative and baseless pro se litigation has on finite judicial resources.  

Francis has been abusing the judicial process for the purpose of harassing his adversaries for the better part of a decade. State courts have warned, reprimanded, and sanctioned Francis—all to no avail. Even the suspension of his law license has failed to deter his appalling conduct. Under the circumstances, the extraordinary injunction requested is amply justified. Of course, Francis may still obtain access to judicial relief—he just may not do so without legal representation.

What Happens When A DA Commits Lots Of Brady Violations?

One of the dirty little secrets of the American criminal justice system is that when a prosecuting attorney violates his or her ethical duty to disclose all evidence that potentially exonerates a criminal defendant to the defendant's lawyer, often causing a wrongful conviction for a crime, the attorney rarely suffers any consequence for the lapse even though a court of law in the criminal case found that the attorney violated this ethical duty. 

A DA in rural Southern Colorado, Francis Ruybalid, didn't just violate this duty. He violated in more than 150 different cases, resulting in 15 of those convictions including convictions for child abuse, domestic violence and murder being thrown out.

What consequences did this DA suffer? 

He resigned as DA, and in exchange for admitting to more than 24 ethical violations, his law license was placed on probation. The Colorado Supreme Court, in a case of first impression, denied him reimbursement for the $223,000 of attorneys fees and litigation costs that he incurred defending himself against the ethics charges, because they involved reckless or knowing conduct which the Court held was not within the scope of his official duties as a DA.

Additional details and a photograph can be found in an article at the Colorado Sun.

Then, this bad lawyer became someone else's problem. He was hired by the state of New Mexico to be an attorney for the Children, Youth & Families Department, where he will presumably be charged with bringing lawsuits on behalf of the state to terminate the parental rights of parents whom investigators believe have committed serious child abuse and neglect. 

So, he was out $223,000 and he had to move and take a new job with what was probably a modest pay cut and a huge drop in authority and prestige from head of a District Attorneys' office for more than one county supervising other prosecutors, to a job as a rank and file lawyer handling individual cases and probably having no more supervisory authority than he might share with other lawyers and managers in the department over a secretary, paralegal and the investigators involved in particular child abuse and neglect cases. He could conceivably also be called upon to handle juvie jail discipline cases and probation revocation cases for juveniles sentenced after committing crimes as minors.

He didn't lose his license to practice law or even have it briefly suspended. New Mexico didn't decline to let him have a law licenses as a result and he probably received reciprocity in admissions to the practice of law in New Mexico despite his disciplinary record. 

And, because prosecutors have "absolute immunity" for their judicial system conduct (although not for investigative matters), none of the criminal defendants who received unjust punishment because exculpatory evidence was withheld, and none of the victims who had crimes committed against them go unpunished because the DA screwed up can sue him. Some of those unpunished criminals are on the streets and may commit further crimes as a result. On the other hand, even if he could have been sued by the injured parties, realistically, he was probably virtually judgment proof once he had paid his lawyers (who are probably going to get stiffed for some part of his legal bill themselves).

It is worth noting, however, that if a DA isn't entitled to indemnification from the County for this conduct because it didn't fall within his official duties, perhaps his absolute immunity from civil liability for his official conduct in judicial proceedings (as opposed to investigative proceeding where the immunity is merely "qualified") doesn't apply either. There are lots of cases in other jurisdictions that hold that Brady violations do not impair a DA's absolute immunity, but those cases, unlike future cases in Colorado, would not have had the foundation of this case defining in advance the scope of an attorney's official actions, upon which to build a case. 

The resulting rule, which would allow District Attorneys to be sued only when they had been adjudicated to have committed ethical violations in a manner that was outside the DA's officials duties, would actually be a very management and reasonable way to balance the need to limit collateral litigation against prosecuting attorneys by convicted criminals, while remedying legitimate wrongs where liability is basically established independently before the case begins. The same rule could even be applied to judges who generally have absolute immunity.

So, all in all, while this bad lawyer's ethical violations, unlike so many prosecutors who commit similar violations (although rarely so pervasively) did have quite meaningful consequences, they weren't all that severe either in proportion to the harm he did.

Now, in his defense, this incident arguably looks like a classic case of the Peter Principle, "which observes that people in a hierarchy tend to rise to their "level of incompetence". In other words, an employee is promoted based on their success in previous jobs until they reach a level at which they are no longer competent, as skills in one job do not necessarily translate to another." 

As a lawyer its his job to know how to do that and get it done, and if he didn't know that he wasn't getting that part of his job done, he should have known. So it really wasn't as he argued in Court, mere negligence (although the Court could very easily have reached the opposite conclusion and found that while he did his job unethically that he was still doing his job). More likely, he wasn't confident enough to make the waves and direct people in a manner to make sure that this bureaucratically very cumbersome obligation was fulfilled.

Basically, it is certainly possible that he was competent enough to do the job of a junior prosecutor, but once he was elected to be the DA, everyone discovered that he was an incompetent manager whose failure to establish proper office procedures, which was his job, led to widespread and systemic violations of the constitutional rights of criminal defendants. So, perhaps, now that he has returned to his previous more humble level of responsibility, he may do just fine.

Also, assistant district attorneys in Southern Colorado are hardly the best paid attorneys admitted to the bar. According to Zip Recruiter:

[A]s of Jun 5, 2019, the average annual pay for an Assistant District Attorney in Colorado is $65,363 a year. While ZipRecruiter is seeing annual salaries as high as $84,284 and as low as $47,825, the majority of Assistant District Attorney salaries currently range between $53,033 (25th percentile) to $79,549 (75th percentile) in Colorado.

The high is probably in the Second Judicial District which is Denver, which has a high cost of living. The Third Judicial District probably has below average pay for its assistant district attorneys' overall, although this would have been balanced out somewhat by seniority. Still, it is safe to say that immediately before being elected DA, Francis Ruybalid was probably earning $75,000 a year or less, and he would have made less in the earlier years of his career. This is enough to live comfortably in rural Southern Colorado, but it almost means that paying for $223,000 of legal fees out of his own pocket probably wipes out a very large share of his entire net worth.

Since this is a contactual debt owed to his attorneys to the extent it hasn't already been paid, it can surely be discharged in bankruptcy, but bankruptcy may very well be in his future if he can't work out a payment plan for any unpaid balances with his ethics defense lawyers who still, at least, left him employable.

How not to make an establishment clause case.

From a draft post of May 23, 2014 with minor edits.

The Case

A Roman Catholic husband and wife in Connecticut (John Doe and Jane Doe) had three daughters whom they raised to be Catholic as well: E.D. (now age 22), L.D. (now age 19) and J.D. (now age 16).  All three attended the local Avon Public Schools and attended the same high school.  When E.D. and L.D. graduated, they went on to attend Wellesley College, a selective private women's liberal arts college in Boston, Massachusetts.  At their high school, were three Spanish teachers and a guidance counselor who taught or had dealings with each of the three girls.

On May 19, 2014, John Doe, Jane Doe, and J.D. filed a sixty-four page complaint to commence a lawsuit against three Spanish teachers, the guidance counselor, the school district and Wellesley College in federal district court in Connecticut for various federal civil rights violations, for parallel claims under the Connecticut state constitution, and for common law torts. In all it asserts twenty-six causes of action.

They are represented by attorney Thomas S. Groth, a solo practicing lawyer who has been admitted to the bar only a year and a half and has only previously practiced tax law.

The suit in in federal court under federal question jurisdiction (and incidentally, in Connecticut, the statute of limitations for a federal civil rights lawsuit, which can vary from state to state, is three years).

The gist of the grievance of the parents and youngest daughter is that the four individual defendants engaged in "predatory religious indoctrination" of their children, twice successfully and once unsuccessfully in the case of the youngest daughter who allegedly suffered retaliation as a result of not converting.  The religious beliefs, so far as can be discerned from the complaint consist of "New Age" mysticism.

The claims against Wellesley College (all of which are common law torts) are "intentional infliction of emotional distress", "intrusion upon seclusion", "negligence", "negligent inflection of emotional distress" and "prime facie tort".  Its sins:

(1) the college allowed the two adult daughters to stay away from home and live in college housing in 2013 so that they were not forced to go home for the summer and over breaks to parents from whom they were estranged and thus furthered the conspiracy's goal that the girls not convert back to Catholicism because they were not economically forced to return home, contrary to usual college policy, and

(2) the college failed to take action to prevent the two older daughters from religiously converting their youngest daughter to their new religious beliefs during a brief college visit.

They claim jurisdiction over Wellesley because it recruits students from Connecticut and its decisions had an impact on the parents in Connecticut.

Needless to say, the claims are dubious and verge on frivolous.

Hat Tip to Wonkette.

Why Don't Lawyers Cite To Relevant Precedents?

A new study reports that judges and their law clerk's often locate outcome relevant case law that is not cited to by the lawyers in the cases before them.

The article discussing it surmises that this is because lawyers are bad at finding case law. But, the example cited (when prosecutors didn't mention a case that caused a motion to be decided against it) and common sense, suggests that incompetence is not the only, and perhaps not even the primary, reason that lawyers don't cite to relevant cases.

The other obvious, but not mentioned, reason, is that often at least one of the side's lawyers do find a case, but don't cite to it because it doesn't support their client's position. Sometimes both sides may even decide that they won't cite to a case that is relevant because the case has statements that are harmful in one way to one side, and in another way to another side, and lawyers want cases that more purely support their client's positions.

In my own experience, judges and law clerks do find novel case law that was not located by either of the parties about one time in ten, but relevant (but not necessary controlling) case law is omitted in perhaps one out of three briefs written by a lawyer (although less often intentionally by both lawyers briefing the same issue in a case).

California Has Adopted The National Standard For Ethics Rules

On May 10, 2018, California's Supreme Court adopted a new set of ethical rules for the state based upon the American Bar Association's Model Rules of Professional Conduct, effective November 1, 2018. A cross-referenced comparison of the new rules to the existing ones is available here.

On that date, every U.S. state will have ethical rules for lawyers that are based upon the Model Rules of Professional Conduct. The dates of adoption are shown here. Puerto Rico is the only substantial U.S. jurisdiction that does not have rules of professional conduct for lawyers based upon the Model Rules. Contrary to my prior coverage of this issue, Maine adopted the Model Rules with select modification in 2009 and there are no longer any states that have ethical rules based upon the prior Model Code of Professional Conduct, which was disavowed by the American Bar Association in favor of the successor Model Rule of Professional Conduct in 1983.

Many states have state specific tweaks to the Model version, and California will have some of its own, but all are based upon the same general framework and starting point language. This gives rise to considerable uniformity between the states in the professional ethics rules that apply to lawyers and to easier comparisons between states when they adopt rules that differ from the Model Rule language. 

Notably, this has been achieved entirely without federal government intervention.

Bad Prosecutors

The Colorado Supreme Court has unanimously overturned a murder conviction after it was determined that prosecutors from the 18th District (which includes Arapahoe County) withheld evidence from defense attorneys in a case where the current DA and his predecessor had sought the death penalty. The opinion is here. A failure to disclose exculpatory evidence to the defense in a criminal case is also an ethical violation on the part of the prosecution attorneys involved. Specifically, it violates Colorado Rule of Professional Conduct 3.8(d). This provides that:

The prosecutor in a criminal case shall: . . . (d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal[.]

Only the language in bold is applicable in this case which never reached the sentencing phase and did not involve a protective order.

In this case, the Colorado Supreme Court explains that prosecutors were aware of the evidence that would have supported the defendant's theory of the case, that another suspect committed the murder, at the outset, but failed to disclosed it to the defense for fifteen months (and only after a conviction was secured after a jury deliberated for four days and was nearly deadlocked) and that the prosecutors instead took steps to segregate the exculpatory information from the discovery provided to defense counsel.

This was flatly culpable and unethical conduct.

In short, Arapahoe County's prosecutors, who are, by far, the most harsh in state, were wiling to breach their ethical obligations in order to secure a death sentence. This is very serious misconduct and we can only hope that the prosecutors involved will face professional discipline resulting in suspension of their licenses or disbarment. 

California On Brink Of Adopting Model Rules Of Professional Responsibility

Currently, California and Maine are the only states in the United States not to have legal ethics rules based on the American Bar Association's Model Rules of Professional Conduct, or on the predecessor Model Code.

But, a replacement has been prepared and vetted through almost all of the proper authorities as of this past March of 2017, and all that stands between California replacing its legal ethics rules with a version based on the Model Rules of Professional Conduct now is a final vote of the California Supreme Court. Some provisions of the new rules are California specific but they are placed in the context of a national framework of ethical rules for lawyers.

U.S. AG Sessions Must Have Been Asleep That Day In Law School

Our nation's attorney-general is apparently a bit fuzzy on the concept that federal district court judges in Hawaii have the same authority as judges from every other federal district court.

“I really am amazed that a judge sitting on an island in the Pacific can issue an order that stops the president of the United States from what appears to be clearly his statutory and constitutional power,” Sessions told radio host Mark Levin on Wednesday, as reported by CNN.

Via Lawyers, Guns and Money.

GOP Favors Let God Sort Em Out Approach To Wrongful Convictions

One of the strangest conceits of US law enforcement is the idea that punishing the innocent is a close substitute for punishing the guilty.

- Matthew Yglesias via Fully Myelinated.

This comes in response to an effort of the current administration to roll back Obama Administration efforts to exonerate wrongly convicted individuals.

Attorney General Jeff Sessions will end a Justice Department partnership with independent scientists to raise forensic science standards and has suspended an expanded review of FBI testimony across several techniques that have come under question, saying a new strategy will be set by an in-house team of law enforcement advisers.

In a statement Monday, Sessions said he would not renew the National Commission on Forensic Science, a roughly 30-member advisory panel of scientists, judges, crime lab leaders, prosecutors and defense lawyers chartered by the Obama administration in 2013.

Destroying Evidence Is Expensive

I'm pretty sure that the attorney malpractice policy of the law firm for Boeing won't even begin to cover a the $1,200,000,000 sanction award it received for destroying documents in a dispute over the award of a major government contract.  Presumably, the sanction is payable to the company that lost the competition for the Air Force contract.

Of course, it goes without saying that Boeing will attempt to appeal the judge's decision.

Boeing Sanctioned In $1.2B Air Force Contract Dispute 

An Alabama federal judge on Thursday granted a sanctions bid against Boeing, invoking the Joni Mitchell song "Big Yellow Taxi" in an order finding the company intentionally destroyed documents related to its long-running dispute with defunct Alabama Aircraft Industries over a $1.2 billion U.S. Air Force contract.

Via a Law360 newslettter.

Fighting For The Right To Collect Zombie Debt

Debt collection firms are fighting hard in the U.S. Supreme Court for the right to collect claims in bankruptcy that are barred by the statute of limitations and otherwise invalid. My view is that the proprietors of these firms should be going to jail, not profiting to the tune of millions of dollars.

Louisiana Makes Rare Finding That Sentence Is Unconstitutionally Excessive

A life imprisonment sentence entered for a man with three prior non-violent felonies (twenty, fifteen and eight years old respectively) for taking $15 out of a car set up by police as a "bait-vehicle" was vacated as excessive under the Louisiana constitution, but would have probably survived 8th Amendment review under the U.S. Constitution.

Both 8th Amendment jurisprudence, and the criminal statutes that make this kind of sentencing possible, are deeply flawed. It also represents a gross abuse of prosecutorial discretion in New Orleans (no doubt for reasons not unrelated to  the defendant's race), and the law enforcement tactics used to tempt someone who might not otherwise have committed the crime at all to commit a technical felony are dubious, even if this ruling upheld their legality.

Walter Johnson reached into a “bait-vehicle” and stole $15. The jury convicted him of simple burglary of a vehicle, a violation of La. R.S. 14:62. In due course, following Mr. Johnson‟s adjudication as a fourth felony offender under the provisions of La. R.S. 15:529.1 A(3)(b), the district judge sentenced him to imprisonment for the remainder of his natural life, which is the statutorily mandated minimum sentence. His life sentence, as imposed, was without the benefit of parole, probation or suspension of sentence. . . . 

Mr. Johnson appeals his life sentence without benefit of parole, probation or suspension of sentence as excessive, violating our state‟s constitutional protection against such sentences under La. Const. art. 1, § 20. The sentencing judge found that none of Mr. Johnson‟s four felony convictions involved any violence. Because we find that the “hidden death penalty”1 imposed in this case is unconscionable and shocks our sense of justice, and is thus excessive, we vacate the sentence as imposed. We remand this matter with instructions to the district judge to conduct an evidentiary hearing on Mr. Johnson‟s motion for downward departure from the statutory minimum sentence and to impose a sentence which is not, in the constitutional sense, excessive. . . .  

A police task force situated a Jeep Cherokee vehicle on a street in Uptown New Orleans. The Jeep was outfitted with interior and exterior surveillance equipment. The Jeep‟s driver side window was left down and its doors unlocked. A $10 bill and a $5 bill, the serial numbers of which were recorded by police, as well as a laptop computer were situated in the vehicle such that any passer-by could easily observe the money and the device. On the video surveillance tape, Walter Johnson is seen to be walking past the bait-vehicle and glances into it. He immediately reappears in the videotape and is seen snatching something from inside the Jeep. He then moves out of camera range. Shortly thereafter, the police officers confronted him and located the same two bills on his person. The laptop was undisturbed in the vehicle. . . . 

Our state constitution prohibits any law that subjects an individual to “cruel, excessive, or unusual punishment.” La. Const. art. 1, § 20. The Louisiana Constitution differs from the Eighth Amendment to the U.S. Constitution in its explicit prohibition of excessive sentences. Cf. U.S. Const. Amend VIII (“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”). This “deliberate inclusion by the redactors of the Constitution of a prohibition against "excessive‟ as well as cruel and unusual punishment broadened the duty of this court to review the sentencing aspects of criminal statutes.” State v. Baxley, 94-2982, p. 4 (La. 5/22/95), 656 So. 2d 973, 977 (citing State v. Goode, 380 So. 2d 1361, 1363 (La. 1980)). 

A sentence is excessive and therefore unconstitutional if “it makes no measurable contribution to acceptable goals of punishment and is nothing more than the purposeless imposition of pain and suffering and is grossly out of proportion to the severity of the crime.” See State v. Dorthey, 623 So. 2d 1276, 1280 (La. 1993) (internal citation omitted). Thus, even though an imposed sentence may be within the statutory sentencing range, and therefore “legal,” it may still violate a defendant‟s constitutional right against excessive punishment. See id., at 1280; State v. Sepulvado, 367 So. 2d 762, 767 (La. 1979). And, although we give great deference to the legislature‟s authority to determine the appropriate punishment for a crime, we emphasize that “no penalty is per se constitutional.” Solem v. Helm, 463 U.S. 277, 290 (1983); see also State v. Pernell, 14-0678, p. 4 (La. App. 4 Cir. 10/15/14), 151 So. 3d 940, 944. 

B  

At the outset, we note that Mr. Johnson was sentenced under a provision of the Habitual Offender Statute that mandates a sentence of life imprisonment without benefit of parole, probation, or suspension of sentence as a fourth felony offender. See La. R.S. 15:529.1 A(4)(b). Thus, the sentence imposed on Mr. Johnson is “legal” in the sense that it falls within the statutory range. See State v. Gibson, 16-0132, pp. 8-9 (La. App. 4 Cir. 3/16/16), 192 So. 3d 132, 137-38.  

Despite its legality, however, we find the life-without-parole sentence imposed upon Mr. Johnson unconstitutionally excessive.2 

2 Notably, the United States Supreme Court has stated that an unconstitutional sentence “is not just erroneous but contrary to law and, as a result void.” Montgomery v. Louisiana, 577 U.S. ---, ---, 136 S.Ct. 718, 731 (2016). Thus, a sentence which is unconstitutionally excessive is also illegal. 

Mr. Johnson reached into the open window of a bait-vehicle and took fifteen dollars. He is now condemned to die in prison for that crime.  

We acknowledge that Mr. Johnson‟s life sentence, under the habitual offender law, is intended as punishment not only the current conviction, but all prior convictions as well. See State v. Johnson, 97-1906, p. 7 (La. 3/4/98), 709 So. 2d 672, 677. Legitimate sentencing goals notwithstanding, Mr. Johnson‟s status as a fourth felony offender “cannot be considered in the abstract.” Solem, 463 U.S. at 296. As previously noted, the trial judge found that all his prior felonies were for nonviolent crimes. See id., at 297; see also Johnson, 709 So. 2d at 676. And the instant offense, the one which set in motion the habitual offender proceedings, is shockingly minor in nature. No person was harmed, nor any property damaged.  

Had Mr. Johnson taken the fifteen dollars but not by entry into a vehicle or other structure listed in the simple burglary statute, he would have been convicted of misdemeanor theft. See La. R.S. 14:67 B(4). Notably, the grades of theft are divided based on the amount misappropriated—the legislature set the maximum amount for misdemeanor theft at $750. The amount in this case is relevant— fifteen dollars is extraordinary in its triviality. 

We do not deny that, as a recidivist, Mr. Johnson should face some form of punishment. The inquiry of whether a sentence is grossly disproportionate, however, focuses on whether “a person deserves such punishment, not simply on whether punishment would serve a utilitarian goal.” Rummel v. Estelle, 445 U.S. 263, 288 (1980) (emphasis added) (POWELL, J., dissenting). Although a lifewithout-parole sentence may well serve to deter recidivism, the immense severity of the punishment does not fit the crime(s) in this case.  

 “[L]ife without parole is the second most severe penalty permitted by law.” Graham v. Florida, 560 U.S. 48, 69 (2010) (internal quotation marks omitted) (quoting Harmelin v. Michigan, 501 U.S. 957, 1001 (1991)). Only a sentence of death, which is not authorized in this case, exceeds it. Cf. La. R.S. 14:30 C (providing for capital punishment in first degree murder convictions).3

3 The United States Supreme Court has recognized that “defendants who do not kill, intend to kill, or foresee that life will be taken are categorically less deserving of the most serious forms of punishment than are murderers.” Graham v. Florida, 560 U.S. 48, 69 (2010)(citations omitted).  

Thus, Mr. Johnson has received the harshest punishment possible for his crimes. And, even though he is not subject to capital punishment, his sentence is comparable in that it irrevocably forfeits his life, freedom, and any aspirations he had for the future. Indeed, “[l]ife in prison without the possibility of parole gives no chance for fulfillment outside prison walls, no chance for reconciliation with society, no hope.” Graham, 560 U.S. at 79.   

Mr. Johnson is thirty-eight years old. He has three prior felonies: simple burglary in 1996, possession of heroin in 2001, and distribution of cocaine in 2008. Notably, the provision under which Mr. Johnson was sentenced subjected him to the same sentence as repeat violent offenders and sexual predators, despite his history of non-violence. The life-without-parole sentence imposed on him forgoes any possibility for redemption, and means that any character improvement or good behavior on his part is immaterial; he has been determined to be irredeemably and irreparably corrupt. And, barring the remote possibility of executive clemency, Mr. Johnson will spend the rest of his days in prison. See Solem, 463 U.S. at 303 (“Recognition of [the] bare possibility of commutation would make judicial review under the Eighth Amendment meaningless.”). We cannot condone a sentence which condemns Mr. Johnson to a life—and inevitable death—within prison walls, in light of his non-violent criminal history and the extraordinarily minor crime in this case.4  

4 Indeed, Louisiana courts have recognized that some sentences imposed legally under the state‟s Habitual Offender Statute are nevertheless unconstitutional. See, e.g., State v. Mosby, 14-2704, p. 1 (La. 11/20/15), 180 So. 3d 1274, 1274 (thirty-year sentence for seventy-two-year old nonviolent offender is “unconscionable.”); State v. Dorthey, 623 So. 2d 1276, 1280 (La. 1993) (twenty years for non-violent habitual offender may be excessive); State v. Ladd, 15-0772, p. 16 (La. App. 4 Cir. 4/13/16), 192 So. 3d 235 192, 244 (seventeen-year sentence excessive for defendant with history of drug possession convictions); State v. Combs, 02-1920, p. 6 (La. App. 4 Cir. 5/21/03), 848 So. 2d 672, 675 (life sentence excessive for defendant with history of non-violent offenses); State v. Burns, 97-1553 (La. App. 4 Cir. 11/10/98), 723 So. 2d 1013, 1019 (twenty-five-year old defendant sentenced to life as fourth felony offender is “young enough to overcome his addiction” and has “the possibility of a productive future.”). 

We thus vacate the life-without-parole sentence imposed on this defendant and remand for resentencing.  

Full opinion here.

Johnson's fate is now in the hands of a trial court judge in New Orleans who has immense discretion in sentencing in this case, but unlike the original verdict, has some discretion. In all likelihood, the final sentence will not be life in prison without parole, but will probably, at least, be the maximum sentence for the offense without a habitual offender enhancement.

Background

A local newspaper story has more background on the case.

He was found guilty of simple burglary and illegal possession of stolen things at a trial in April 2015, and Orleans Parish District Attorney Leon Cannizzaro's office promptly invoked the state's habitual-offender law. 

Johnson, who had prior convictions for simple burglary, heroin possession and cocaine distribution, was deemed a four-time felon. Criminal District Court Judge Karen Herman sentenced him in October 2015 to a mandatory life prison term with no chance for parole. . . .

Judges have little control over such decisions, and the Louisiana Supreme Court has been loath to step on the Legislature's toes by overriding one of the nation's stiffest habitual-offender laws. The state's high court has ruled that departures below the law's mandatory minimum sentences must be limited to "exceedingly rare" cases. 

But occasionally it has seen fit to do so. Last year, for instance, the Supreme Court found a 30-year sentence "unconscionable" for Doreatha Mosby, a 73-year-old New Orleans woman who was found with a crack pipe tucked in her bra. 

Yet in the case of Bernard Noble, a father of seven who was found with the equivalent of two joints of marijuana, the court found he wasn't "exceedingly rare" enough to allow a sentence below the mandatory 13-year minimum under the statute. 

Both of those cases, as well as Johnson's, came out of Orleans Parish, where Cannizzaro employs the habitual-offender law far more often than any other prosecutor in the state. In 2015, Cannizzaro's office sent 154 convicts off to long prison sentences under the statute — almost one of every four offenders who were shipped to state prisons from New Orleans that year, according to data analyzed by the Pew Charitable Trusts. 

"You're dealing with different crime problems, socioeconomic levels, and you're dealing with different judges, different sentencing dispositions," Christopher Bowman, a spokesman for Cannizzaro's office, said in explaining the office's penchant for deploying the statute. 

"If you were dealing with a situation where a prosecutor feels probation is being given too freely, then the district attorney is required to use the habitual-offender law." 

According to a state corrections spokesman, Johnson has returned to prison frequently on probation and parole violations, as well as new charges, since his first conviction, in 1996, for simple burglary. 

He has shuttled in and out of prison, with convictions for heroin possession in 2001 and cocaine distribution in 2008. His record also includes a conviction for possession with intent to distribute counterfeit drugs, records show. . . . 

[Appeals panel] Judge Joy Cossich Lobrano agreed with them in denying Johnson's bid to overturn his conviction — he had argued entrapment — but declined to declare his life sentence excessive. Lobrano said she would have ordered Herman to hold a hearing first before making that determination.

Colorado Habitual Sentencing Compared

Colorado's recidivist sentencing regime is not as draconian as that of Louisiana.

* One problem with the Louisiana statute is that it classified an offense that should have been a misdemeanor as a felony. Colorado law would not classify removing $15 from a vehicle without breaking into the vehicle as a felony. It would be a class one petty offense, see C.R.S. § 18-4-401 and would not be eligible for habitual offender enhancement which apply only to felony offenses.

In Colorado, this offense by this offender would have resulted in up to a six month jail sentence (about half of which could be reduced for good behavior in addition to any credit for time served), a $500 fine, court costs, and restitution or seizure of the $15 stolen.

* Another problem is that Louisiana unreasonably elevated a prior mere drug possession offense to a felony, something that states like Colorado are moving away from now. One of this man's prior felonies, possession of heroin, is currently a misdemeanor in Colorado, although it would have been a felony at the time.

* A third problem is that it allows life imprisonment without parole for less serious new offenses and prior offenses. Colorado's statutes require more serious priors, or more recent priors, or do not carry a life imprisonment consequence and instead have an enhanced sentence proportionate in some way to the current offense. No habitual criminal statute in Colorado carries a life without possibility of parole sentence.

Colorado's life in prison with parole after forty years for habitual criminals statute requires that the current conviction be for a class 1 felony (first degree murder or aggravated kidnapping), a class 2 felony (e.g. second degree murder), or a class 3 violent felony (e.g. armed robbery), specifically excludes burglary offenses, and requires two prior convictions of similar seriousness, or a current conviction for a violent felony and has a previous habitual criminal conviction. C.R.S. § 18-1.3-801(1) and (2.5).

None of this man's priors wold have counted for the purpose of this Colorado statute even if he had committed a felony this time.

Colorado's other general habitual criminal provisions requires a felony conviction two prior felonies within the last ten years that are not of the least serious (class 6) class, and triples the maximum sentence, C.R.S. § 18-1.3-801(1.5), or to a felony conviction other than a minor drug conviction with three prior felonies that are not the least serious at any time resulting in quadruple the maximum sentence, C.R.S. § 18-1.3-801(2).

He would have only one prior for the purpose of tripling statute, but might have been eligible if he had committed a Colorado felony for the quadrupling statute.

Colorado's habitual burglary statute includes only first or second degree burglary, not lesser burglary offenses, requires a prior serious burglary offense to be within the last ten years, and sets a maximum sentence of double the usual offense, and a minimum sentence equal to the usual maximum sentence. C.R.S § 18-13-804.

He would have had no priors for the purpose of this statue in Colorado.

Colorado's habitual offense statutes, unlike those of some states, also only allows one strike for criminal episode, even if multiple convictions for felonies resulted from that criminal episode.

* Finally, don't take this blog post as a definitive statement of Colorado recidivist sentencing law. While I capture the highlights, there are several fine details not applicable in this fact pattern that are relevant.

Back Page Criminal Charges Dismissed

California brought criminal pimping charges against the owners of the online website "Back Page" because many of the advertisements on the site are advertisements for the sexual services of victims of human trafficking. 

The charges were brought and the CEO was arrested on October 6, 2016. Two co-defendants who were also executive in the company were also arrested.  All three men were then released on bail after spending four days in jail over the prosecution's objections. Their lawyer then filed a motion asking that the charges be dismissed that was fully briefed.

A preliminary ruling dismissing the charges was made on November 16, 2016. And a week ago the charges were dismissed in a final ruling, because federal law related to user provided content on websites provided the defendants with immunity from liability, just as the California prosecutor bringing the case had stated it did in public back in 2013.

I did not see any of this, other than the initial arrests, reported in the news.

What Is Wrong With Denver DA Mitch Morrissey?

Moses-EL spent 28 years in state prison for a 1987 rape in Denver’s Five Points neighborhood that he has said he didn’t commit. The only evidence against him was that the victim said his identity came to her in a dream – after she had named three other men as her possible attackers. The first man she named, LC Jackson, since has confessed to the assault. 

Partly because of an error made by district attorneys, Denver police threw all the DNA evidence in the case in a dumpster. 

A Denver district judge vacated Moses-EL’s conviction last December. Despite a lack of evidence against Moses-EL – and Jackson’s sworn confession in court – DA Mitch Morrissey’s office said last winter it will re-prosecute the case.

From the Colorado Independent.

The trial is set to begin November  7, 2016, two months before his term ends and a day before he becomes a lame duck.

It is hard to see how this prosecution produces a conviction that can hold up.

Morrissey's departure won't be a moment too soon.

In Other Colorado Criminal Justice Injustice News

A former Sterling Correctional Facility inmate suffering multiple physical disabilities repeatedly asked to be transferred away from an inmate who threatened him and choked him with his own cane, but instead guards put him in the same cell with the man. 

Soon after Anthony Cipriano was placed in a cell with Kirk Popken, the man Cipriano feared, Popken attacked him from behind, fracturing his skull and nearly killing him.

On Friday, Boulder attorney Alison Ruttenberg filed a civil lawsuit on behalf of Cipriano naming two correctional officers, identified only as “Sgt. Nelson and Officer Brown,” as defendants. 

Cipriano, who is currently on parole in Southern Colorado, is seeking damages and attorneys fees, claiming that his Constitutional rights to be free of cruel and unusual punishment were violated.

From here.

The victim's physical disabilities are also largely attributable to events during previous periods of incarceration for the same offense.

The lawsuit says that a prison health care worker also took away Cipriano’s wheelchair in retaliation after Cipriano called her “fat,” requiring him to walk with excruciating pain because a piece of metal was lodged in his right foot, the lawsuit says. 

Cipriano was sentenced to four years in prison in 2011 for a conviction of stalking and violating a protection order. He broke his hip in the Douglas County jail and was required to wear adult diapers following an infection in his pelvis because he had no bowel control, the lawsuit says. He also suffered from the foot infection.

The case number in the U.S. District Court for the District of Colorado for Cipriano v. Nelson is 1:16-cv-02510. It was filed on October 7, 2016

15% of U.S. Tech Patent Litigation Due To Patent Troll Enforcement Of Three Dubious Patents

Last month I noted that 60% of U.S. copyright suits are brought against anonymous downloaders, with 40% of the total brought by a single porn company.

Also notable is the fact that a court has determined that the song "Happy Birthday" which has been the subject of nearly a century of copyright enforcement action, has actually been in the public domain all along.

Similarly dubious is the use of copyright law to charge people for access to sources that constitute legal authority that ignorance is no excuse for not knowing.

A similar situation exists in U.S. patent litigation:

Shipping & Transit's patent on bus-tracking (the basis of 500+ lawsuits, most against cities' transit authorities); Uniloc's patent on DRM; and Sportbrain Holdings' patent on wearable health monitors. Collectively, these patents account for 15% of all of America's tech patent litigation.

In suits to enforce patents that go to trial, about half of the patents are found to be invalid, notwithstanding the fact that the patents are presumptively valid and have undergone expert review of the validity on the merits in the ex parte Patent and Trademark Office patent prosecution process which rejects significant share of all patent applications, particularly for patents related to business services.

This empirical data about how intellectual property laws are actually used in practice in the U.S. casts real doubt on the largely theoretical and ideologically driven arguments that our intellectual property law regime is good for the economy.

Federal Courts Swamped With Porn Pirate Suits

[T]he adult website Malibu Media is a prodigious enforcer of its copyrights. According to law professor Matthew Sag of Loyola University in Chicago, Malibu alone was responsible for nearly 40 percent of all copyright filings in federal court in 2015. Litigation against anonymous downloaders, by Malibu and other copyright enforcers, made up nearly 60 percent of the federal copyright docket last year

From a Reuters article discussing the similar failed business model of the law firm Prenda Law, which died in a hail of court sanctions for unethical conduct.

Since porn websites routinely give away vast amounts of product for free, it isn't unreasonable to guess that these sites make more money suing infringers than they do from paying customers.

I have long advocated conceptualizing copyright suits as a form of unjust enrichment lawsuit, rather than one involving copyrights, and limiting damages to actual damages as measured by an unjust enrichment principle.

Tax Havens Considered In Light Of The Panama Papers

In the biggest leak of confidential law firm information since a junior employee leaked confidential information from tobacco tort defense firms that went on to devastate the industry, papers leaked from the records of Panamanian law firm Mossack Fonsecca have revealed a treasure trove of information about tax haven bank accounts of prominent international figures across the globe. Tyler Cohen collects some other related links to the economic issues related to the scandal at Marginal Revolution.

Few Americans are implicated because they prefer venues of common law legal traditions like Bermuda, the British Virgin Islands, the Cayman Islands, St. Nevis and St. Kitts, as well as domestic asset protection venues.  The Swiss, who invented the tax haven industry, have been out of favor for many years among both Europeans and Americans after having caved to pressure from foreign authorities to crack down on tax haven abuses.

Maintaining a Panamanian bank account is itself perfectly legal in most of the world.  

But, combined with shell companies and disregard for domestic tax laws that is impossible to detect without an improper leak of documents like this one, Panamanian bank accounts have been a global go to source for money laundering, tax fraud, fraudulent concealment of assets to hide the fruits of government corruption by top officials, to conceal assets from soon to be ex-spouses and creditors, and to hide patterns of influence.  

Simply put, it is a pain to have a foreign bank account, and typically, only people with illicit reasons or a tax evasion motive use them.  People with legitimate international financial interests usually establish accounts in non-tax haven jurisdictions where they do business or in legitimate major international financial centers like London or New York or Tokyo.

The dicey thing about tax haven/asset protection jurisdictions is that for the most part, these opportunities exist as a result of loopholed in domestic laws that permit them to be beneficial.  Tax havens typically have little economic activity of their own, and both the source of the funds and the places that they invest the funds are typically the countries that are the victims of these legal loopholes and have ample power to collectively punish tax havens if they wish to do so.  Indeed, there have been a couple of times in U.S. history when the U.S. military has intervened when countries in the greater Gulf of Mexico tried to stiff U.S. creditors.

In this respect, tax havens bear a great deal of resemblance to the Islamic fundamentalist Salafist movement that has in turn given rise to Islamic terrorism, which is funded almost entirely from the oil wealth provided by the Western countries these movements have sometimes targeted. Terrorist organizations, however, tend to be less sophisticated and traditional, than the corrupt international financial networks that are the lifeblood of international tax havens like Panama.