Drunk & Disorderly

On the Docket of a Colorado Criminal Defense Attorney

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What’s That Ringing in My Ears?



I’m just a plainspoken Colorado criminal defense lawyer, but the way I see it…

I, and colleagues around the world, share a lot of grim tidings with you in these newsletters. I guess that’s the nature of criminal justice, of human rights violation.

It would be a shame not to share something fine, even if once in a blue moon, or not completely on topic. To skew it closer to topic, I might even say, it would be a crime.

My baby girl shared this news with me first. Go ahead, click on the link just below here. If you’re not delighted by what you see and hear, you may be from an even grimmer planet.




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Baby, It’s Cold Outside


I’m just a plainspoken Colorado criminal defense lawyer, but the way I see it…

Just a little something to help you (and me) get through the winter. A Christmas present from my daughter, singer Kay-Kay Rosmarin, and her musical partner (and I’m pleased as punch, proud as a peacock, and flabbergasted as a father to announce, her fiancé) guitarist Fili Filizzola.

They actually made me sign a contract not to publish it until now. Seemed ironclad, at least to a criminal defense lawyer who barely remembers his contracts class, so I kept my word.

Not really musically their cup of tea, but it is mine, and maybe yours.

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Drunk and Disorderly…Not


I’m just a plainspoken Colorado criminal defense lawyer, but the way I see it…

To a hammer, everything is a nail. To a prosecutor, every defendant is a criminal.

That was nowhere more apparent than a trial I watched yesterday of a man in my home town accused of drunken driving.

These are the bare facts: a rookie cop watched a man leave a bar at closing time; watched him drive his car from the parking lot and slow, but not completely stop, before driving on to the street, where there was no traffic.

The earnest young cop immediately noted this as a traffic infraction, and decided to follow him a bit. After all, the driver just left a bar. He followed him long enough to note another traffic infraction when the man turned onto a four-lane road. You may not realize this, but when you have a choice of two lanes to turn onto, you’re supposed to pick the nearer lane. Our driver picked the farther lane, and that was enough for the rookie. He lit up the party hats, and pulled the suspect over.

Asked him if he’d been drinking. Yes, officer, I had a drink at last call at that bar you followed me out of. That’s what they all say. (Actually, what they all say is, I had two beers.) That was the sixth clue the officer had that yes sirree, we got a drunk here. Leaving a bar, the two traffic violations, alcohol on his breath (smelled, actually, like a brewery), a slight slur in his speech, and minimizing his drinking. Step out of the car.

Do the standardized field sobriety tests. Sorry, sir, you failed to perform them as a sober person would. Would you prefer blood or breath? What, you won’t take either test? No, I don’t have to tell you what you did wrong on the SFSTs. Sure you don’t want to take the chemical test? It could prove your innocence. No? Still mad? Fine. A refusal. Slam dunk for the prosecutor.

Prosecutor thought so, too. Wouldn’t offer a deal, forget about a dismissal. Only reason you’d refuse an alcohol test is if you were drunk.

Except, it wasn’t a slam dunk for the prosecutors (they always like to double-team the defense lawyer and why not: they’re the government). Wasn’t, because at trial the prosecutor learned, apparently for the first time:

  • While the man was clearly belligerent like we know many drunks are, the video the prosecutor showed the jury unfortunately also showed the man pass all the field sobriety tests, so that at first I thought I’d fallen asleep and the defense had put this video on. “Aced it,” criminal defense lawyer Lindasue Smollen got the engagingly honest policeman to agree about several of the tests. Only three years out of the police academy, he hasn’t yet learned to shade his testimony to the prosecution palette.
  • The man smelled like a brewery because he worked all day and night at a brewery, a Boulder beer pub, slopping hops and shit all over the clothes he hadn’t had a chance to change.
  • He slurred his speech because he’s had a lisp all his life and though he’s had medical help with it, all six of his peers in the jury box could still hear it.
  • While the prosecutors took care to establish the officer as an expert in field sobriety tests, so the jury could take his word as gospel, it turned out he hadn’t really read the bible (the SFST manual given to every rookie), because “it’s a really big book” and they went over it in class anyway. No, he didn’t keep it, hasn’t looked at it since.
  • When Lindasue gently asked if an expert shouldn’t have paid more attention to the manual he’s supposed to be an expert on, the nice young cop gestured toward the prosecutor and the judge, “I never said I was an expert. They’re the ones who say I’m an expert.”

Lindasue told her client the jury would probably be out about an hour and a half. I told them maybe twenty minutes. Told them I was stunned this had even been taken to trial; only a blind man couldn’t see it. I forgot that I’m often stunned by prosecution decisions, and that justice really is supposed to be blind.

We were both wrong. Twenty-five minutes. Not guilty.

Yep, prosecutors hit that nail right on the head.

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Top Ten Reasons To Avoid a Saudi Prosecution


I’m just a plainspoken Colorado criminal defense lawyer, but the way I see it…

10. One man’s testimony worth any two women’s.

9.  Trial will be any year now.

8.  Miranda’s just some Brazilian dancer with bananas in her hair.

7.  Length of interrogation depends on how many fingers you have left from last interrogation.

6.  U.S. Constitution protects the people from the government. Saudi Constitution protects the government from the people.

5.  Punishment for offending God is just what you’d expect.

4.  Easier than you might expect to offend God.

3.  Old guys decide what the law is, and don’t write anything down.

2.  You’re a drunken American in the birthplace of Islam.

And the Number One Top Ten Reason To Avoid a Saudi Prosecution:

1.  Rights? We don’t need no stinking rights!



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Christmas Mass


I’m just a plainspoken Colorado criminal defense lawyer, but the way I see it…

I’ve flown into Syracuse more summers than I can remember with my children, when through the woods to grandmother’s house we’d go. There’s a Catholic bishop there who believes — though after exposure of his belief now prudently denies it — that other parents’ children who were raped by his priests might at least have been partly to blame.

In deposition testimony, Bishop Robert Cunningham declared of each of those children, perhaps inartfully, “the boy is culpable,” and an accomplice in his own rape.

That caused a lot of outrage in Syracuse, though to be fair mostly from people who had never raped anyone. Mr. Cunningham (he doesn’t really deserve to be called bishop anymore) said he was misunderstood, that of course the priests were wrong for what they did, but that “accomplice” and “culpable” mean different things under Catholic canon than they do under legal theory.

He’s partly right, while managing at the same time to be totally wrong. The Catholic Encyclopedia says there are two kinds of accomplice: formal and material. The formal accomplice is the kid who says to the priest who is raping him, yeah, let’s do this. Cunningham says he meant the other kind of accomplice, the material accomplice, who’s the kid that’s just there but wishes he weren’t. That kind of accomplice corresponds to the legal concept of proximate cause, best explained by an old law professor of mine using the example of my jaw being the proximate cause of his fist slamming into it. Couldn’t have happened if my jaw hadn’t been in the way.

Those boys couldn’t have been raped if they hadn’t been alone with the priests. That’s what the good bishop meant by “accomplice.”

“Culpable” doesn’t work out as neatly, unfortunately for Cunningham. In Catholic canon, just like in legal theory, by golly, “culpable” involves being responsible for the bad thing that happened. “It inherently implies,” according to the Canon Law Centre, “moral guilt or willful wrongdoing.”

One of those boys raped by more than one of Cunningham’s priests somehow can’t buy his explanation, and I’m inclined to agree.

Kevin Braney, who now lives in my part of the country, thinks a man, who imputes responsibility to altar boys raped in the church by their priests, isn’t fit to be Bishop. He wants the Pope to remove Cunningham.

The Vatican already believes that what Braney said happened to him, did happen. Last year Monsignor Charles Eckermann, then 83, was removed from his ministry and ordered to spend the rest of his life in prayer. I thought that was what priests did anyway, but never mind that.

Back then, Eckermann told a Syracuse reporter Braney’s name “doesn’t ring any bells right now.” So many children, so little time.

There are other names that do ring bells, names of other priests in the Syracuse diocese who the Vatican has confirmed raped children of their flock. Braney says Cunningham continues to protect these priests by refusing to release their names.

Braney first turned to the church for help when he was fifteen. He told another priest what Father Eckermann had done to him. The priest slapped his face and told him never to say another word about it. For many years, Braney never did.

His petition to the Pope, to remove Cunningham as Bishop of Syracuse, is here.

It’s his response to another slap, the pain of which he can no longer bear in private.

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