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

[Taxing Matters]

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.

In the states I practice I would have let them testify if they were determined to testify, but I could not not in any way assist them in lying, which means I could not ask questions of them that would prompt the false answers. If the client wants to give that testimony anyway, he/she does so with out my help, which of course tips off the judge and the opposing counsel that something is amiss. The opposing counsel will then work to exploit that if possible. I tell clients that to put them on notice that going that route can end up damaging their case.

 

[quincy]

Colorado's Rule 1.2 (because this is a Colorado thread) speaks to attorney limits on representing a client and attorney withdrawal (when it makes sense):

http://www.cobar.org/For-Members/Opinions-Rules-Statutes/Rules-of-Professional-Conduct/Rule-12-Scope-of-Representation-and-Allocation-of-Authority-Between-Client-and-Lawyer

There was an interesting old case out of Massachusetts where an attorney on trial for murder lied himself into a conviction because he would not listen to the many attorneys he hired to represent and advise him. I know I posted a link to the case before .... somewhere. It is a good lesson on why you shouldn't lie in court and why you might want to follow the advice of your lawyer.

 

[Just Blue]

Colorado's Rule 1.2 (because this is a Colorado thread) speaks to attorney limits on representing a client and attorney withdrawal (when it makes sense):

http://www.cobar.org/For-Members/Opinions-Rules-Statutes/Rules-of-Professional-Conduct/Rule-12-Scope-of-Representation-and-Allocation-of-Authority-Between-Client-and-Lawyer

There was an interesting old case out of Massachusetts where an attorney on trial for murder lied himself into a conviction because he would not listen to the many attorneys he hired to represent and advise him. I know I posted a link to the case before .... somewhere. It is a good lesson on why you shouldn't lie in court and why you might want to follow the advice of your lawyer.

Do you remember the attorneys name? I would love to read that case...(hint hint....)

 

[quincy]

Do you remember the attorneys name? I would love to read that case...(hint hint....)

No. I will search for it. I only mentioned it because I thought I had a link to the case readily available. I discovered I didn't.

I do remember that the attorney-defendant appealed his conviction on the basis of ineffective counsel, though. He lost his appeal because it was clear he ignored all advice from his attorneys. The only inept attorney was himself.

 

[nate829]

Thanks for the responses. Glad I didn't accuse the attorney of anything now knowing that there is no proof of a conflict. I have a few more questions.

Do we have any rights to see any/all emails or information about any correspondence the defense attorney has with the prosecutor related to these cases? Do we have a right to know when these conversations take place, how long they last, and what is discussed? If the attorney was charging by the hour I'm assuming he would document everything but maybe not with a flat fee agreement. I'm concerned that the lawyer doesn't really care and is putting minimal effort into these cases. My cousin met with him once for an hour to go over everything a couple of months ago and he said the lawyer just googled the stalking law, skimmed it over, skimmed over the evidence and then said that he would just say that my cousin did it because he wanted to see his daughter and would ask for a deferred sentence (probation and expungement). The prosecutor is refusing to offer expungement. I believe there are many holes in the case and an attorney that really knew the stalking law and took the time to go over every word of the evidence could find them.

The lawyer seems to be pressuring us to take the deal and I assumed the deal would be in writing and we could take some time to review it. The flat fee agreement means that he already got his money and every minute he spends on the case is money out of his pocket so it's in his best interest to just get the case out of the way. The lawyer also pressured us to sign another fee agreement for a trial when the next court date is 3 weeks away. The breaking to protection order case from 2016 is a pre-trial hearing but the stalking and breaking the bond cases are only in the disposition hearing phase. Not seeing the urgency. I don't like the "global solution" strategy this attorney is using by lumping all the cases together. He originally said that the breaking the protection order case from 2016 would likely be dropped since they don't even have the text message. Now he's saying that the prosecutor is doing us a favor by offering to drop it with a guilty plea for the stalking case. If the 2016 case is so weak why doesn't the attorney just negotiate it as a separate case and get it dropped? Anyway, I politely told him that I am unhappy with how this has been handled by him so far so we would not hire him to represent my cousin at a trial. My cousin and the attorney were on speaker phone and my cousin later said that the lawyer seemed nervous and started shaking when I said that. The lawyer said that he will not take offense to that and said that he thinks my cousin will likely be convicted on all charges so he understands why we wouldn't want to hire him (he's been telling us for months that the 2016 case would likely be dropped since they don't have the text and the breaking the bond case is weak since they don't have the actual email that was sent, just a print out). I don't think I would hire a lawyer for a flat fee again.

The attorney said that if he provided anything in writing summarizing the deal it would be an email from the prosecutor. I asked the lawyer how he knows the prosecutor will argue for probation with a guilty plea if there is nothing forcing him to do it in writing and he said that it would affect their personal relationship. That's not good enough for me since I don't really care about their personal relationship. What if they hated each other? The prosecutor could say that he would ask for probation and then ask for 4 years in prison in front of the judge and there would be no recourse.

If the attorney provides the email that says the prosecutor is ok with probation then can we use that later if my cousin ends up being convicted to show that the prosecution doesn't think this crime is worthy of prison time? Like I said, the family doesn't want him to be charged at all but if they are put on the stand and they walk back some of the statements they made to police they could be exposed. I don't think they thought he would be charged with a felony, maybe some misdemeanors which I think would be more appropriate (harassment, etc.) and was hoping the lawyer would be able to negotiate the charges down. Heck, they tried to charge my cousin with reckless endangerment for allegedly running his ex-girlfriend off the road and that would have only been a misdemeanor (my cousin says he just drove next to her and tried to get her to pull over to talk about his daugher, he wouldn't try to hurt the mother of his child). They dropped that charge but that is 1 of 2 incidents they are still using in the felony stalking case (law requires 2 incidents that cause serious emotional distress). The family would most likely ask for a weak sentence to the judge as well so I don't think we should take the deal to plead guilty knowing that even if he's convicted we will have the prosecution already saying that probation was appropriate and the family telling the judge that they don't want a prison sentence.

 

[Just Blue]

Thanks for the responses. Glad I didn't accuse the attorney of anything now knowing that there is no proof of a conflict. I have a few more questions.

Do we have any rights to see any/all emails or information about any correspondence the defense attorney has with the prosecutor related to these cases? Do we have a right to know when these conversations take place, how long they last, and what is discussed? If the attorney was charging by the hour I'm assuming he would document everything but maybe not with a flat fee agreement. I'm concerned that the lawyer doesn't really care and is putting minimal effort into these cases. My cousin met with him once for an hour to go over everything a couple of months ago and he said the lawyer just googled the stalking law, skimmed it over, skimmed over the evidence and then said that he would just say that my cousin did it because he wanted to see his daughter and would ask for a deferred sentence (probation and expungement). The prosecutor is refusing to offer expungement. I believe there are many holes in the case and an attorney that really knew the stalking law and took the time to go over every word of the evidence could find them.

The lawyer seems to be pressuring us to take the deal and I assumed the deal would be in writing and we could take some time to review it. The flat fee agreement means that he already got his money and every minute he spends on the case is money out of his pocket so it's in his best interest to just get the case out of the way. The lawyer also pressured us to sign another fee agreement for a trial when the next court date is 3 weeks away. The breaking to protection order case from 2016 is a pre-trial hearing but the stalking and breaking the bond cases are only in the disposition hearing phase. Not seeing the urgency. I don't like the "global solution" strategy this attorney is using by lumping all the cases together. He originally said that the breaking the protection order case from 2016 would likely be dropped since they don't even have the text message. Now he's saying that the prosecutor is doing us a favor by offering to drop it with a guilty plea for the stalking case. If the 2016 case is so weak why doesn't the attorney just negotiate it as a separate case and get it dropped? Anyway, I politely told him that I am unhappy with how this has been handled by him so far so we would not hire him to represent my cousin at a trial. My cousin and the attorney were on speaker phone and my cousin later said that the lawyer seemed nervous and started shaking when I said that. The lawyer said that he will not take offense to that and said that he thinks my cousin will likely be convicted on all charges so he understands why we wouldn't want to hire him (he's been telling us for months that the 2016 case would likely be dropped since they don't have the text and the breaking the bond case is weak since they don't have the actual email that was sent, just a print out). I don't think I would hire a lawyer for a flat fee again.

The attorney said that if he provided anything in writing summarizing the deal it would be an email from the prosecutor. I asked the lawyer how he knows the prosecutor will argue for probation with a guilty plea if there is nothing forcing him to do it in writing and he said that it would affect their personal relationship. That's not good enough for me since I don't really care about their personal relationship. What if they hated each other? The prosecutor could say that he would ask for probation and then ask for 4 years in prison in front of the judge and there would be no recourse.

If the attorney provides the email that says the prosecutor is ok with probation then can we use that later if my cousin ends up being convicted to show that the prosecution doesn't think this crime is worthy of prison time? Like I said, the family doesn't want him to be charged at all but if they are put on the stand and they walk back some of the statements they made to police they could be exposed. I don't think they thought he would be charged with a felony, maybe some misdemeanors which I think would be more appropriate (harassment, etc.) and was hoping the lawyer would be able to negotiate the charges down. Heck, they tried to charge my cousin with reckless endangerment for allegedly running his ex-girlfriend off the road and that would have only been a misdemeanor (my cousin says he just drove next to her and tried to get her to pull over to talk about his daugher, he wouldn't try to hurt the mother of his child). They dropped that charge but that is 1 of 2 incidents they are still using in the felony stalking case (law requires 2 incidents that cause serious emotional distress). The family would most likely ask for a weak sentence to the judge as well so I don't think we should take the deal to plead guilty knowing that even if he's convicted we will have the prosecution already saying that probation was appropriate and the family telling the judge that they don't want a prison sentence.

You do realize this is NOT your case right? I ask because you seem to think it is...all those "us" and "we" in your post makes one think you are gonna end up in prison.

Is this the same cousin you wanted to sue a few years back?

 

[nate829]

You do realize this is NOT your case right? I ask because you seem to think it is...all those "us" and "we" in your post makes one think you are gonna end up in prison.

Is this the same cousin you wanted to sue a few years back?

I want him to stay out of prison and avoid a felony record if possible so he is more likely to pay me back. He has his issues but is maturing and turning his life around.

 

[nate829]

I want him to stay out of prison and avoid a felony record if possible so he is more likely to pay me back. He has his issues but is maturing and turning his life around.

He also gave his lawyer permission to discuss everything with me and encouraged me to talk about the case and seek advice. I already paid $12,000 for his attorney so I'm trying to avoid just firing this one and hiring someone new.

 

[Just Blue]

He also gave his lawyer permission to discuss everything with me and encouraged me to talk about the case and seek advice. I already paid $12,000 for his attorney so I'm trying to avoid just firing this one and hiring someone new.

He gave you permission to post his criminal activities on the internet where the DA can see it? Really? Your cousin is foolish.

 

[quincy]

I want him to stay out of prison and avoid a felony record if possible so he is more likely to pay me back. He has his issues but is maturing and turning his life around.

Your cousin can either trust his attorney and trust the attorney is working in his best interest, or your cousin can fire his current attorney and hire a new one, or your cousin can go without an attorney and pray for the best.

Those are his options.

It is often the case that a known plea agreement is better than an unknown outcome at trial. Your cousin might not fare as well at trial and his attorney may suspect he won't, based on his familiarity with the court, the prosecutor, the evidence and the community from which jurors will be seated.

Most attorneys will advise their clients to refrain from discussing the case with anyone. You can be called on to testify against your cousin and what is published online can be used against your cousin.

Good luck.

 

[Ohiogal]

Thanks for the responses. Glad I didn't accuse the attorney of anything now knowing that there is no proof of a conflict. I have a few more questions.

Do we have any rights to see any/all emails or information about any correspondence the defense attorney has with the prosecutor related to these cases? Do we have a right to know when these conversations take place, how long they last, and what is discussed? If the attorney was charging by the hour I'm assuming he would document everything but maybe not with a flat fee agreement. I'm concerned that the lawyer doesn't really care and is putting minimal effort into these cases. My cousin met with him once for an hour to go over everything a couple of months ago and he said the lawyer just googled the stalking law, skimmed it over, skimmed over the evidence and then said that he would just say that my cousin did it because he wanted to see his daughter and would ask for a deferred sentence (probation and expungement). The prosecutor is refusing to offer expungement. I believe there are many holes in the case and an attorney that really knew the stalking law and took the time to go over every word of the evidence could find them.

The lawyer seems to be pressuring us to take the deal and I assumed the deal would be in writing and we could take some time to review it. The flat fee agreement means that he already got his money and every minute he spends on the case is money out of his pocket so it's in his best interest to just get the case out of the way. The lawyer also pressured us to sign another fee agreement for a trial when the next court date is 3 weeks away. The breaking to protection order case from 2016 is a pre-trial hearing but the stalking and breaking the bond cases are only in the disposition hearing phase. Not seeing the urgency. I don't like the "global solution" strategy this attorney is using by lumping all the cases together. He originally said that the breaking the protection order case from 2016 would likely be dropped since they don't even have the text message. Now he's saying that the prosecutor is doing us a favor by offering to drop it with a guilty plea for the stalking case. If the 2016 case is so weak why doesn't the attorney just negotiate it as a separate case and get it dropped? Anyway, I politely told him that I am unhappy with how this has been handled by him so far so we would not hire him to represent my cousin at a trial. My cousin and the attorney were on speaker phone and my cousin later said that the lawyer seemed nervous and started shaking when I said that. The lawyer said that he will not take offense to that and said that he thinks my cousin will likely be convicted on all charges so he understands why we wouldn't want to hire him (he's been telling us for months that the 2016 case would likely be dropped since they don't have the text and the breaking the bond case is weak since they don't have the actual email that was sent, just a print out). I don't think I would hire a lawyer for a flat fee again.

The attorney said that if he provided anything in writing summarizing the deal it would be an email from the prosecutor. I asked the lawyer how he knows the prosecutor will argue for probation with a guilty plea if there is nothing forcing him to do it in writing and he said that it would affect their personal relationship. That's not good enough for me since I don't really care about their personal relationship. What if they hated each other? The prosecutor could say that he would ask for probation and then ask for 4 years in prison in front of the judge and there would be no recourse.

If the attorney provides the email that says the prosecutor is ok with probation then can we use that later if my cousin ends up being convicted to show that the prosecution doesn't think this crime is worthy of prison time? Like I said, the family doesn't want him to be charged at all but if they are put on the stand and they walk back some of the statements they made to police they could be exposed. I don't think they thought he would be charged with a felony, maybe some misdemeanors which I think would be more appropriate (harassment, etc.) and was hoping the lawyer would be able to negotiate the charges down. Heck, they tried to charge my cousin with reckless endangerment for allegedly running his ex-girlfriend off the road and that would have only been a misdemeanor (my cousin says he just drove next to her and tried to get her to pull over to talk about his daugher, he wouldn't try to hurt the mother of his child). They dropped that charge but that is 1 of 2 incidents they are still using in the felony stalking case (law requires 2 incidents that cause serious emotional distress). The family would most likely ask for a weak sentence to the judge as well so I don't think we should take the deal to plead guilty knowing that even if he's convicted we will have the prosecution already saying that probation was appropriate and the family telling the judge that they don't want a prison sentence.

Why do you think YOU have a right review any plea agreement? YOU DO NOT! Only his client does. Global solution is what someone wants because it avoids duplicative time and is most likely to result in concurrent. Your cousin, based upon your words, IF GUILTY. You are far too involved. You say he wouldn't try to hurt the mother of his child but that is NOT evidence. HE drove beside her when he should not have. If he wanted to have visitation with his child, he should have filed and got a court order. If said court order was not filed, he should have filed a motion to show cause. What he shouldn't had done is act like a vigilante. Your cousin is in the wrong.

 

[nate829]

Your cousin can either trust his attorney and trust the attorney is working in his best interest, or your cousin can fire his current attorney and hire a new one, or your cousin can go without an attorney and pray for the best.

Those are his options.

It is often the case that a known plea agreement is better than an unknown outcome at trial. Your cousin might not fare as well at trial and his attorney may suspect he won't, based on his familiarity with the court, the prosecutor, the evidence and the community from which jurors will be seated.

Most attorneys will advise their clients to refrain from discussing the case with anyone. You can be called on to testify against your cousin and what is published online can be used against your cousin.

Good luck.

It's more likely people will read this and realize that the stalking law in Colorado is poorly crafted and can be abused by DA's to ruin people's lives and give them prison sentences and felony records if they cannot afford competent defense attorneys.

https://codes.findlaw.com/co/title-18-criminal-code/co-rev-st-sect-18-3-602.html

(c) Repeatedly follows, approaches, contacts, places under surveillance, or makes any form of communication with another person, a member of that person's immediate family, or someone with whom that person has or has had a continuing relationship in a manner that would cause a reasonable person to suffer serious emotional distress and does cause that person, a member of that person's immediate family, or someone with whom that person has or has had a continuing relationship to suffer serious emotional distress.  For purposes of this paragraph (c), a victim need not show that he or she received professional treatment or counseling to show that he or she suffered serious emotional distress.

Who gets to decide what "serious emotional distress" is and how it differs from "emotional distress" or any other description of human emotions? A psychologist? Nope, the DA's and judges get to decide in Colorado I guess. How do you prove someone actually suffered "serious emotional distress"?

This is the harassment law which is a misdemeanor.

https://codes.findlaw.com/co/title-18-criminal-code/co-rev-st-sect-18-9-111.html

(e) Directly or indirectly initiates communication with a person or directs language toward another person, anonymously or otherwise, by telephone, telephone network, data network, text message, instant message, computer, computer network, computer system, or other interactive electronic medium in a manner intended to harass or threaten bodily injury or property damage, or makes any comment, request, suggestion, or proposal by telephone, computer, computer network, computer system, or other interactive electronic medium that is obscene;  or

(f) Makes a telephone call or causes a telephone to ring repeatedly, whether or not a conversation ensues, with no purpose of legitimate conversation;  or

(g) Makes repeated communications at inconvenient hours that invade the privacy of another and interfere in the use and enjoyment of another's home or private residence or other private property;  or

(h) Repeatedly insults, taunts, challenges, or makes communications in offensively coarse language to, another in a manner likely to provoke a violent or disorderly response.

How does the harassment law differ from the stalking law? I would think that threatening bodily injury is worse than causing serious emotional distress but not in Colorado.

This is the law about breaking a bail bond in Colorado.

https://law.justia.com/codes/colorado/2016/title-18/article-8/part-2/section-18-8-212/

(1) A person who is released on bail bond of whatever kind, and either before, during, or after release is accused by complaint, information, indictment, or the filing of a delinquency petition of any felony arising from the conduct for which he was arrested, commits a class 6 felony if he knowingly fails to appear for trial or other proceedings in the case in which the bail bond was filed or if he knowingly violates the conditions of the bail bond.


(2) A person who is released on bail bond of whatever kind, and either before, during, or after release is accused by complaint, information, indictment, or the filing of a delinquency petition of any misdemeanor arising from the conduct for which he was arrested, commits a class 3 misdemeanor if he knowingly fails to appear for trial or other proceedings in the case in which the bail bond was filed or if he knowingly violates the conditions of the bail bond.

This means that even if you are found not guilty of the felony you were arrested for you can still be convicted of a felony if you break your bond, which could be by drinking a beer or some other minor infraction. Not saying that breaking a bond shouldn't be a crime. I'm questioning how the penalty for the crime (felony vs. misdemeanor) can be increased based on an accusation.

 

[nate829]

Why do you think YOU have a right review any plea agreement? YOU DO NOT! Only his client does. Global solution is what someone wants because it avoids duplicative time and is most likely to result in concurrent. Your cousin, based upon your words, IF GUILTY. You are far too involved. You say he wouldn't try to hurt the mother of his child but that is NOT evidence. HE drove beside her when he should not have. If he wanted to have visitation with his child, he should have filed and got a court order. If said court order was not filed, he should have filed a motion to show cause. What he shouldn't had done is act like a vigilante. Your cousin is in the wrong.

He was charged with reckless endangerment over a month later and the charges were dropped at the first hearing. They charged him right before he was going to get out of jail for breaking the bond in an attempt to keep him in jail. They didn't issue an arrest warrant and she didn't ask for a protection order immediately after the alleged incident. They are still using that as 1 of 2 incidents in the stalking case. It doesn't matter what he is guilty of, only what the prosecution can prove beyond a reasonable doubt. If all you have to do to get someone charged with a serious crime is say that they tried to run you off of the road and there are no witnesses, video, dents, paint transfer, skid marks, etc. then that's a problem.

 

[quincy]

Most in the legal profession or in law enforcement do not spend their time trying to figure out ways to ruin people's lives (and I say "most" only because there might be some strange person out there somewhere who is doing that).

If your cousin believes he is not being represented well, he should think about getting a new attorney.

 

[Taxing Matters]

Thanks for the responses. Glad I didn't accuse the attorney of anything now knowing that there is no proof of a conflict. I have a few more questions.

Do we have any rights to see any/all emails or information about any correspondence the defense attorney has with the prosecutor related to these cases?

In general your cousin has the right to see the correspondence. Colorado Rule of Professional Conduct 1.4(4) requires an attorney to promptly comply with reasonable requests for information. Copies of correspondence, court filings, etc., are generally reasonable and the attorney should provide that when asked. You have no right to see it and your cousin is foolish to share such things with you as that can destroy the attorney-client privilege and attorney confidentialty that the law otherwise affords your cousin. You are not his lawyer and cannot provide him with legal advice.

Do we have a right to know when these conversations take place, how long they last, and what is discussed?

Some of that would be reasonable for your cousin to request and for the attorney to provide. However extremely detailed disclosures of the conversation is not likely to be provided; a summary of what was discussed and the outcome should be sufficient.

I believe there are many holes in the case and an attorney that really knew the stalking law and took the time to go over every word of the evidence could find them.

You are also (1) biased in favor of your cousin (which is not a criticism, that's just human nature), (2) likely do not know everything the state has against him and (3) are not a lawyer and have not tried criminal cases in Colorado. It is quite possible that the state's case is stronger than you believe it to be. A jury that has no relationship to your friend or his ex might see it very differently than you do.

If the attorney provides the email that says the prosecutor is ok with probation then can we use that later if my cousin ends up being convicted to show that the prosecution doesn't think this crime is worthy of prison time?

No. If your cousin gets convicted then obviously the jury determined him guilty. At that point the pre-trial negotiations are worthless. Remember, those negotiations take into account the risk by both sides that they could lose at trial. Once the jury verdict is in, you know the result and whether the prosecutor might have thought it was weak before trial no longer matters. The judge does the sentencing and will take into account the arguments for both sides for the sentence to be imposed, but what the parties thought the case looked like pre-trial is not among the things the court considers.

By the way, nothing precludes the prosecution seeking jail/prison time after the conviction has been won at trial. So if were your cousin I would not count on the prosecution just asking for probation if he ends up convicted of a felony.