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.
