Concerned my cousin's lawyer is working against him behind the scenes (Felony Stalking case)

[nate829]

What is the name of your state? Colorado

My cousin was charged with breaking a protection his girlfriend placed on him in 2016 so I agreed to hire him a lawyer for a flat fee in February 2018 (I guess my cousin had a warrant for all of 2017 and didn't know about it). After we hired this lawyer my cousin was charged with felony stalking (18-3-602) for alleged incidents in March/April 2018 against his ex-girlfriend. We decided to just hire the same lawyer for the new case. After we hired him he started talking about how he was friends with the DA going back to college as if that was a good thing for my cousin and he might be able to negotiate a better deal based on this relationship. It turns out that this is not a good thing at all and I believe he is actually helping his friend get a felony stalking conviction by recommending that my cousin plead guilty with the promise that the DA will argue for probation. I don't believe they have a strong case and I don't believe my cousin should plead guilty. I was hoping the deal would be that the charges would be reduced to harassment or some other misdemeanors.

Is it a red flag that the attorney is a former prosecutor who is friends with the DA?
Is it unethical that the attorney didn't disclose this relationship before we hired him?
What recourse do we have if the attorney is actually scratching his friends back by helping him get a felony conviction?

 

[xylene]

1. No.
2. No.
3. What evidence do you have of this, beyond supposition

Pay an attorney for a second opinion.

It is quite possible that the best case scenario is avoiding jail.

Could you flesh out the circumstances of the orginal and subsequent charges?

 

[nate829]

I don't know what the lawyer and DA talk about behind the scenes. They joke around with each other in the courtroom in front of my cousin so they appear to be good buddies. The lawyer already got his flat fee and if the DA needs a win then I could imagine the lawyer just giving up on the case and helping his buddy out knowing that the worst we could do is write a negative review on avvo.com.

I’ll go over the evidence here if someone wants to give a second opinion. As far as the breaking the protection order case in 2016 goes he is accused of sending a text message. They don't have the text message with a time and date stamp to my knowledge, just a police report that says he sent the message. His lawyer said that this case could likely be dropped but it hasn't been yet. After we hired him for the stalking case he started talking about a "global solution" to combine everything into one negotiation. I think this is a stupid idea since the alleged incidents are over a year apart and have nothing to do with each other.

As far as the stalking case goes the law in Colorado, to my understanding, says that someone has to engage in activity that "repeatedly causes serious emotional distress". “Repeatedly” is defined as more than once. “Serious emotional distress” is not defined so I believe prosecutors can use this law to criminalize any messy break up if they want to. They have 2 incident reports they are using. The first incident report says that my cousin tried to run his ex-girlfriend off the road near her parents house in the country. My cousin said that he drove next to her and tried to get her to pull over. He will deny that he was even there in a trial and say that she is making the entire thing up. There are no tire tracks or paint transfer. The only evidence is her statement to the police. The police didn't issue a warrant and she didn't put a protection order in place. They attempted to charge him with reckless endangerment much later but dropped the charges I believe because they know the evidence wouldn’t hold up in court. If this incident cannot be proven I don’t think they have a felony stalking case since they need 2 incidents. Just assume that the 2nd incident a couple weeks later occurred and caused serious emotional distress for the sake of argument although I believe that can be challenged as well (he basically just went to her house and pounded on the door, she called the police and he was arrested-no threats, no violence, no destruction of property). She also talks about him calling/texting frequently and being seen near the house. They are presenting no evidence of any of this other than her statement so it looks like the case hinges on the 2 incident reports where the police were called.

My cousin also broke the bond for the stalking case by responding to an email his ex sent. He was arrested and right before I got him out again they charged him with reckless endangerment for the first alleged incident with the car (this was dropped at the first hearing). They wanted to keep him in jail. Breaking the bond if you are accused of a felony is a felony in Colorado so the DA has a felony in their back pocket even if my cousin is found not guilty of stalking. They have yet to produce the actual email my cousin sent, they only have a print out. Not sure how that would hold up in court. They took his iphone but I don’t believe they will be able to get into it to retrieve the actual email.

Overall I don’t believe the attorney is aggressively challenging the evidence. He said he would just say that my cousin did this because he wanted to see his daughter and is not looking at the law and arguing that they don’t have 2 incidents and that they cannot prove the ex-girlfriend actually suffered serious emotional distress beyond the emotional distress that comes with a messy break up. She never used the words “serious emotional distress” and the police report actually just says that she appeared to be suffering “emotional distress” after the first incident which does not violate the stalking law. There were no threats and no violence. My cousin lived with his girlfriend and daughter in January/February and the girlfriend just left to live with her parents so he was upset about not being able to see his daughter.

Since the arrest my cousin hired a family attorney and he has been getting visits with his daughter. He talks to the parents because there is a protection order in place with his ex-girlfriend. The family doesn’t want to press charges and said that they won’t even show up as witnesses if there is a trial. The ex is attempting to contact my cousin in a polite way to rekindle a relationship. He is smartly not responding. After we informed the attorney of this he still recommends that my cousin plead guilty. Not sure what the family can do to be more proactive in getting the charges dropped. I’m afraid to contact them for fear that it will violate the protection order and I could be accused of witness tampering. I would tell his ex to just say that she didn’t lie about being upset but it didn’t rise to the level of “serious emotional distress” that the law requires.

The deal that is being offered is that my cousin pleads guilty to stalking, the breaking the protection order and breaking the bond cases are dropped and the DA pushes for probation. If they don’t have the text and email then those cases are weak anyway so it isn’t much of a deal. The lawyer was pushing for the possibility of expungement but the DA is refusing that deal so my cousin would avoid jail but have a felony record.

 

[Zigner]

You really ought not be airing your cousin's case on the internet.

 

[not2cleverRed]

It sounds like, from what you've said, that your cousin is guilty.

Sometimes the best a lawyer can do is have a client plead guilty and negotiate a reduced sentence.

If your cousin pleads not guilty and it goes to trial, and is found guilty, the penalty phase would be more severe.

 

[Ohiogal]

I don't know what the lawyer and DA talk about behind the scenes. They joke around with each other in the courtroom in front of my cousin so they appear to be good buddies. The lawyer already got his flat fee and if the DA needs a win then I could imagine the lawyer just giving up on the case and helping his buddy out knowing that the worst we could do is write a negative review on avvo.com.

I’ll go over the evidence here if someone wants to give a second opinion. As far as the breaking the protection order case in 2016 goes he is accused of sending a text message. They don't have the text message with a time and date stamp to my knowledge, just a police report that says he sent the message. His lawyer said that this case could likely be dropped but it hasn't been yet. After we hired him for the stalking case he started talking about a "global solution" to combine everything into one negotiation. I think this is a stupid idea since the alleged incidents are over a year apart and have nothing to do with each other.

As far as the stalking case goes the law in Colorado, to my understanding, says that someone has to engage in activity that "repeatedly causes serious emotional distress". “Repeatedly” is defined as more than once. “Serious emotional distress” is not defined so I believe prosecutors can use this law to criminalize any messy break up if they want to. They have 2 incident reports they are using. The first incident report says that my cousin tried to run his ex-girlfriend off the road near her parents house in the country. My cousin said that he drove next to her and tried to get her to pull over. He will deny that he was even there in a trial and say that she is making the entire thing up. There are no tire tracks or paint transfer. The only evidence is her statement to the police. The police didn't issue a warrant and she didn't put a protection order in place. They attempted to charge him with reckless endangerment much later but dropped the charges I believe because they know the evidence wouldn’t hold up in court. If this incident cannot be proven I don’t think they have a felony stalking case since they need 2 incidents. Just assume that the 2nd incident a couple weeks later occurred and caused serious emotional distress for the sake of argument although I believe that can be challenged as well (he basically just went to her house and pounded on the door, she called the police and he was arrested-no threats, no violence, no destruction of property). She also talks about him calling/texting frequently and being seen near the house. They are presenting no evidence of any of this other than her statement so it looks like the case hinges on the 2 incident reports where the police were called.

My cousin also broke the bond for the stalking case by responding to an email his ex sent. He was arrested and right before I got him out again they charged him with reckless endangerment for the first alleged incident with the car (this was dropped at the first hearing). They wanted to keep him in jail. Breaking the bond if you are accused of a felony is a felony in Colorado so the DA has a felony in their back pocket even if my cousin is found not guilty of stalking. They have yet to produce the actual email my cousin sent, they only have a print out. Not sure how that would hold up in court. They took his iphone but I don’t believe they will be able to get into it to retrieve the actual email.

Overall I don’t believe the attorney is aggressively challenging the evidence. He said he would just say that my cousin did this because he wanted to see his daughter and is not looking at the law and arguing that they don’t have 2 incidents and that they cannot prove the ex-girlfriend actually suffered serious emotional distress beyond the emotional distress that comes with a messy break up. She never used the words “serious emotional distress” and the police report actually just says that she appeared to be suffering “emotional distress” after the first incident which does not violate the stalking law. There were no threats and no violence. My cousin lived with his girlfriend and daughter in January/February and the girlfriend just left to live with her parents so he was upset about not being able to see his daughter.

Since the arrest my cousin hired a family attorney and he has been getting visits with his daughter. He talks to the parents because there is a protection order in place with his ex-girlfriend. The family doesn’t want to press charges and said that they won’t even show up as witnesses if there is a trial. The ex is attempting to contact my cousin in a polite way to rekindle a relationship. He is smartly not responding. After we informed the attorney of this he still recommends that my cousin plead guilty. Not sure what the family can do to be more proactive in getting the charges dropped. I’m afraid to contact them for fear that it will violate the protection order and I could be accused of witness tampering. I would tell his ex to just say that she didn’t lie about being upset but it didn’t rise to the level of “serious emotional distress” that the law requires.

The deal that is being offered is that my cousin pleads guilty to stalking, the breaking the protection order and breaking the bond cases are dropped and the DA pushes for probation. If they don’t have the text and email then those cases are weak anyway so it isn’t much of a deal. The lawyer was pushing for the possibility of expungement but the DA is refusing that deal so my cousin would avoid jail but have a felony record.

So your cousin is willing to lie under oath. FABULOUS. I don't help liars or people attempting to help liars. He can rot.

 

[Just Blue]

I don't know what the lawyer and DA talk about behind the scenes. They joke around with each other in the courtroom in front of my cousin so they appear to be good buddies. The lawyer already got his flat fee and if the DA needs a win then I could imagine the lawyer just giving up on the case and helping his buddy out knowing that the worst we could do is write a negative review on avvo.com.

I’ll go over the evidence here if someone wants to give a second opinion. As far as the breaking the protection order case in 2016 goes he is accused of sending a text message. They don't have the text message with a time and date stamp to my knowledge, just a police report that says he sent the message. His lawyer said that this case could likely be dropped but it hasn't been yet. After we hired him for the stalking case he started talking about a "global solution" to combine everything into one negotiation. I think this is a stupid idea since the alleged incidents are over a year apart and have nothing to do with each other.

As far as the stalking case goes the law in Colorado, to my understanding, says that someone has to engage in activity that "repeatedly causes serious emotional distress". “Repeatedly” is defined as more than once. “Serious emotional distress” is not defined so I believe prosecutors can use this law to criminalize any messy break up if they want to. They have 2 incident reports they are using. The first incident report says that my cousin tried to run his ex-girlfriend off the road near her parents house in the country. My cousin said that he drove next to her and tried to get her to pull over. He will deny that he was even there in a trial and say that she is making the entire thing up. There are no tire tracks or paint transfer. The only evidence is her statement to the police. The police didn't issue a warrant and she didn't put a protection order in place. They attempted to charge him with reckless endangerment much later but dropped the charges I believe because they know the evidence wouldn’t hold up in court. If this incident cannot be proven I don’t think they have a felony stalking case since they need 2 incidents. Just assume that the 2nd incident a couple weeks later occurred and caused serious emotional distress for the sake of argument although I believe that can be challenged as well (he basically just went to her house and pounded on the door, she called the police and he was arrested-no threats, no violence, no destruction of property). She also talks about him calling/texting frequently and being seen near the house. They are presenting no evidence of any of this other than her statement so it looks like the case hinges on the 2 incident reports where the police were called.

My cousin also broke the bond for the stalking case by responding to an email his ex sent. He was arrested and right before I got him out again they charged him with reckless endangerment for the first alleged incident with the car (this was dropped at the first hearing). They wanted to keep him in jail. Breaking the bond if you are accused of a felony is a felony in Colorado so the DA has a felony in their back pocket even if my cousin is found not guilty of stalking. They have yet to produce the actual email my cousin sent, they only have a print out. Not sure how that would hold up in court. They took his iphone but I don’t believe they will be able to get into it to retrieve the actual email.

Overall I don’t believe the attorney is aggressively challenging the evidence. He said he would just say that my cousin did this because he wanted to see his daughter and is not looking at the law and arguing that they don’t have 2 incidents and that they cannot prove the ex-girlfriend actually suffered serious emotional distress beyond the emotional distress that comes with a messy break up. She never used the words “serious emotional distress” and the police report actually just says that she appeared to be suffering “emotional distress” after the first incident which does not violate the stalking law. There were no threats and no violence. My cousin lived with his girlfriend and daughter in January/February and the girlfriend just left to live with her parents so he was upset about not being able to see his daughter.

Since the arrest my cousin hired a family attorney and he has been getting visits with his daughter. He talks to the parents because there is a protection order in place with his ex-girlfriend. The family doesn’t want to press charges and said that they won’t even show up as witnesses if there is a trial. The ex is attempting to contact my cousin in a polite way to rekindle a relationship. He is smartly not responding. After we informed the attorney of this he still recommends that my cousin plead guilty. Not sure what the family can do to be more proactive in getting the charges dropped. I’m afraid to contact them for fear that it will violate the protection order and I could be accused of witness tampering. I would tell his ex to just say that she didn’t lie about being upset but it didn’t rise to the level of “serious emotional distress” that the law requires.

The deal that is being offered is that my cousin pleads guilty to stalking, the breaking the protection order and breaking the bond cases are dropped and the DA pushes for probation. If they don’t have the text and email then those cases are weak anyway so it isn’t much of a deal. The lawyer was pushing for the possibility of expungement but the DA is refusing that deal so my cousin would avoid jail but have a felony record.

Nate...Is this the cousin you wanted to sue back in 2014?

 

[Mass_Shyster]

So your cousin is willing to lie under oath. FABULOUS. I don't help liars or people attempting to help liars. He can rot.

Are you seriously going to tell me that your clients don't lie?

 

[Eekamouse]

I don't know what the lawyer and DA talk about behind the scenes. They joke around with each other in the courtroom in front of my cousin so they appear to be good buddies. The lawyer already got his flat fee and if the DA needs a win then I could imagine the lawyer just giving up on the case and helping his buddy out knowing that the worst we could do is write a negative review on avvo.com.

I’ll go over the evidence here if someone wants to give a second opinion. As far as the breaking the protection order case in 2016 goes he is accused of sending a text message. They don't have the text message with a time and date stamp to my knowledge, just a police report that says he sent the message. His lawyer said that this case could likely be dropped but it hasn't been yet. After we hired him for the stalking case he started talking about a "global solution" to combine everything into one negotiation. I think this is a stupid idea since the alleged incidents are over a year apart and have nothing to do with each other.

As far as the stalking case goes the law in Colorado, to my understanding, says that someone has to engage in activity that "repeatedly causes serious emotional distress". “Repeatedly” is defined as more than once. “Serious emotional distress” is not defined so I believe prosecutors can use this law to criminalize any messy break up if they want to. They have 2 incident reports they are using. The first incident report says that my cousin tried to run his ex-girlfriend off the road near her parents house in the country. My cousin said that he drove next to her and tried to get her to pull over. He will deny that he was even there in a trial and say that she is making the entire thing up. There are no tire tracks or paint transfer. The only evidence is her statement to the police. The police didn't issue a warrant and she didn't put a protection order in place. They attempted to charge him with reckless endangerment much later but dropped the charges I believe because they know the evidence wouldn’t hold up in court. If this incident cannot be proven I don’t think they have a felony stalking case since they need 2 incidents. Just assume that the 2nd incident a couple weeks later occurred and caused serious emotional distress for the sake of argument although I believe that can be challenged as well (he basically just went to her house and pounded on the door, she called the police and he was arrested-no threats, no violence, no destruction of property). She also talks about him calling/texting frequently and being seen near the house. They are presenting no evidence of any of this other than her statement so it looks like the case hinges on the 2 incident reports where the police were called.

My cousin also broke the bond for the stalking case by responding to an email his ex sent. He was arrested and right before I got him out again they charged him with reckless endangerment for the first alleged incident with the car (this was dropped at the first hearing). They wanted to keep him in jail. Breaking the bond if you are accused of a felony is a felony in Colorado so the DA has a felony in their back pocket even if my cousin is found not guilty of stalking. They have yet to produce the actual email my cousin sent, they only have a print out. Not sure how that would hold up in court. They took his iphone but I don’t believe they will be able to get into it to retrieve the actual email.

Overall I don’t believe the attorney is aggressively challenging the evidence. He said he would just say that my cousin did this because he wanted to see his daughter and is not looking at the law and arguing that they don’t have 2 incidents and that they cannot prove the ex-girlfriend actually suffered serious emotional distress beyond the emotional distress that comes with a messy break up. She never used the words “serious emotional distress” and the police report actually just says that she appeared to be suffering “emotional distress” after the first incident which does not violate the stalking law. There were no threats and no violence. My cousin lived with his girlfriend and daughter in January/February and the girlfriend just left to live with her parents so he was upset about not being able to see his daughter.

Since the arrest my cousin hired a family attorney and he has been getting visits with his daughter. He talks to the parents because there is a protection order in place with his ex-girlfriend. The family doesn’t want to press charges and said that they won’t even show up as witnesses if there is a trial. The ex is attempting to contact my cousin in a polite way to rekindle a relationship. He is smartly not responding. After we informed the attorney of this he still recommends that my cousin plead guilty. Not sure what the family can do to be more proactive in getting the charges dropped. I’m afraid to contact them for fear that it will violate the protection order and I could be accused of witness tampering. I would tell his ex to just say that she didn’t lie about being upset but it didn’t rise to the level of “serious emotional distress” that the law requires.

The deal that is being offered is that my cousin pleads guilty to stalking, the breaking the protection order and breaking the bond cases are dropped and the DA pushes for probation. If they don’t have the text and email then those cases are weak anyway so it isn’t much of a deal. The lawyer was pushing for the possibility of expungement but the DA is refusing that deal so my cousin would avoid jail but have a felony record.

I'd take the deal if I were your cousin. He sounds like he could use a time out. Maybe it will make him appreciate what a court order is and to not violate any in the future.
Oh, just so you know, attorneys work together everyday in the courtroom. They can be friends with each other and that doesn't mean they won't try to beat a case if they go up against each other. Why would any attorney rack up a bunch of losses just because he's friends with his opponent?

 

[Ohiogal]

Are you seriously going to tell me that your clients don't lie?

Difference is I don’t allow them to lie in court and I have had to report witnesses that were going to commit perjury.

 

[Taxing Matters]

Are you seriously going to tell me that your clients don't lie?

No good lawyer will risk potential suspension/disbarment by putting up a witness on the stand that he or she knows is going to lie. I've had clients lie to me and lie to the court and I didn't discover the lie until later and there is nothing I can do about that. When the client does that and the opposing side uncovers the lie and makes the client look bad, that often does great damage to the case that could have been avoided had the client told me the truth and allowed me to work out a strategy to deal with the matter without him/her lying on the stand. Moreover, lying on the stand risks the client being charged with perjury.

 

[Taxing Matters]

Is it a red flag that the attorney is a former prosecutor who is friends with the DA?

No. Lots of attorneys are friends and can end up opposing each other in court. The thing is, litigators love to fight and love to win, even when going up against friends (sometimes particularly because they are friends) because beating your friend is a challenge and you know your friend is going to do his/her best to do the same to you. It's like two friends playing tennis against each other. If they are competitive (as litigators tend to be) they are going to do everything they can to win. Both friends know that and thus don't hold against their friend when they get beaten. They just try harder the next time around.

When it comes to negotiations, the two friends will again try to get the best deal for their side possible. The benefit of being friends, though, is that they each know that they can trust each other to keep the commitments they make, which makes it easier to come to a good deal for everyone. The defense attorney wants to know the DA will keep his word, and vice versa.

Bear in mind that neither attorney is going to want to put their jobs and licenses on the line by doing less than their best for their client. Undermining your own client not only gives you a bad reputation but it can also lead to suspension/disbarment and getting fired from your job/firm.

Is it unethical that the attorney didn't disclose this relationship before we hired him?

There is no requirement the attorney disclose that, though it is probably a good idea so that the client knows what the deal is when he or she sees the lawyer being friendly with the opposing attorney.

What recourse do we have if the attorney is actually scratching his friends back by helping him get a felony conviction?

If you have actual evidence of it (something more than the mere speculation you have now) you can make a complaint to the Colorado Supreme Court's attorney regulation counsel. That is the office that disciplines lawyers for misconduct. Your friend also always has the right to fire his current attorney and hire someone new.

The problem is that your bias towards your friend is leading you to potentially discount the state's case. Bear in mind that the ex's testimony is itself evidence against him and if a jury believes her that alone could be enough to get him convicted. Copies of the actual text messages, etc., would of course help the state even more, but it is not required that the state have that to win a conviction on this. A lot will depend on whom the jury believes. That is why going to trial always presents a risk. If the jury believes her, he could end up in prison. You may think that she's not believable and that your friend is, but you biased in favor of your friend. What will 12 people who have never met either of them before believe? It might not end up being your friend.

Your friend likely should not take the stand at all, and if he does, he certainly should not lie on the stand. He risks blowing his case if the DA successfully paints your friend as a liar, and it could even get him the additional charge of perjury, too.

 

[quincy]

Here is a link to Colorado's Rules of Professional Conduct:

http://www.cobar.org/rulesofprofessionalconduct

Nate, you can read Rule 1.7 and Rule 1.8 on Conflict of Interest.

Nothing you have said seems to indicate there is a conflict of interest. Many who are in the legal profession in any community will know each well and are friends or socialize with each other. This is not unusual. Nor is it (necessarily) a conflict of interest.

As to the perjury mentioned earlier: It is not charged all that frequently. Attorneys advise their clients not to lie and advise their clients of the possible penalties for doing so. In a criminal trial, lies can mean the difference between conviction or acquittal.

That said, people lie. Judges are not blind to that fact. One of my favorite judges (now retired) said at the start of more than one trial: "Let the lies begin."

 

[Mass_Shyster]

No good lawyer will risk potential suspension/disbarment by putting up a witness on the stand that he or she knows is going to lie. I've had clients lie to me and lie to the court and I didn't discover the lie until later and there is nothing I can do about that. When the client does that and the opposing side uncovers the lie and makes the client look bad, that often does great damage to the case that could have been avoided had the client told me the truth and allowed me to work out a strategy to deal with the matter without him/her lying on the stand. Moreover, lying on the stand risks the client being charged with perjury.

My court appointed clients lie to me all the time. That doesn't stop me from helping them, and under the Mass rules, if they're bound and determined to lie on the stand, I have to let them.

 

[quincy]

My court appointed clients lie to me all the time. That doesn't stop me from helping them, and under the Mass rules, if they're bound and determined to lie on the stand, I have to let them.

That can be a fine line you have to walk so you don't violate professional rules, huh?