A Reason to Retain a Good Colorado Criminal Defense Lawyer

Many of the calls I receive are from persons who have retained lawyers that were their third, fourth or last choice. They are looking for “do overs” having received poorly negotiated plea bargains or lost trials which they believe, rightly or wrongly, they might have won.

These individuals are looking for a second bite of the apple a second chance. They believe that their Colorado criminal defense lawyer’s performance was below the minimum standard for a competent criminal defense lawyer’s in Colorado.

Here’s the truth the likelihood of a second chance at a new plea agreement or a new trial using a Motion referred to as a “Crim. P. 35(c) Motion” is minimal at best.

These motions are almost uniformly denied.

The right decision in selecting a Colorado criminal defense lawyer implicates careful and thorough due diligence in locating and then selecting a lawyer. This work should be done on the front end of a criminal case without relying on the idea that an appeal of their lawyer’s poor performance on the back end for example following sentencing on a plea bargain or after a negative verdict is read by the finder of fact in a trial a Trial Judge or a Jury.

Using Colorado Crim. P. Rule 35 is used as the primary tool to request a post conviction hearing to investigate allegations of “ineffective assistance of counsel.” There are many grounds for filing such a motion among them for example are the failure of counsel to:

• Adequately investigate the case.
• Call certain witnesses to testify at the trial.
• Present certain defenses such as an “alternate suspect” theory of defense, or defenses such as self defense in an assault or other violent crime case.
• Call an expert.

To be successful on a Colorado ineffective assistance of counsel claim under what is known as the Strickland Standard ( Strickland v. Washington, 466 U.S. 668, 687 (1984), the Defendant must prove:

1. First that his lawyer’s performance was constitutionally deficient and
2. Second That the lawyer’s performance resulted in prejudice to the defendant.

There is no right to a hearing on a Crim. P. 35 ( c ) Motion. A Judge can deny an ineffective assistance of counsel claim without ever conducting a court hearing if the Judge finds from the Motion and the record that: “the existing record establishes that the allegations, even if true, would not establish at least one prong of the Strickland test.”

To obtain a hearing on your Rule 35 Motion you must successfully establish that: “the alleged acts or omissions by counsel that, if true, could undermine confidence in the defendant’s conviction or sentence, and the motion, files, and record in the case do not clearly establish that those acts or omissions were reasonable strategic choices or otherwise within the range of reasonably effective assistance, the defendant must be given an opportunity to prove they were not. To warrant a hearing, a defendant need only assert facts that, if true, would provide a basis for relief. “

Judge’s and Colorado Appellate Courts when evaluating whether your lawyer’s performance was deficient, do not Monday Morning Quarterback analysis. The Courts evaluate the representation you received from your lawyer’s perspective at the time of the representation, and the Courts “indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.”

That is a huge roadblock to success as the Defendant must overcome the presumption that, under the circumstances, the lawyer’s challenged actions might have been be sound strategy.

The criminal defense lawyer, not the client, has the final authority to make strategic or tactical decisions, including the decision as to what strategy should is employed in the defense of the case. While the Defendant has the absolute right to make decisions that are considered… “inherently personal rights” such as the plea to be entered, whether to waive a jury trial, and whether or not to testify, almost every other decision is viewed as “strategic or tactical in nature” and such decisions are reserved to the criminal defense lawyer.

“Defense counsel stands as captain of the ship in ascertaining what evidence should be offered and what strategy should be employed in the defense of the case.”

Strategic decisions include such things as:

• what witnesses to call (excepting the defendant),
• whether and how to conduct cross-examination,
• what jurors to accept or strike,
• and what trial motions to make.

Even if the Defendant disagrees with the lawyer’s decisions, these “tactical decisions” are left to the Captain of the Ship.

Relying on an appeal of your case based on your lawyer’s questionable performance is another mistake. Be thorough when interviewing potential criminal defense lawyers. While cost is a factor it should not be the most important factor in making your decision. The selection of your Colorado criminal defense lawyer may end up as the single most important decision you make in your entire life. I have separately written an article on making this decision here is a LINK to that article: Good Luck

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Never stop fighting never stop believing in yourself and your right to due process of law.

About The Author: H. Michael Steinberg Email The Author at [email protected]. A Denver Colorado Criminal Defense Lawyer or call his office at 303-627-7777 during business hours or call his cell if you cannot wait and need his immediate assistance 720-220-2277. Attorney H. Michael Steinberg is passionate about criminal defense. His extensive knowledge and experience of Colorado Criminal Law gives him the edge you need to properly handle your case.

You should be careful to make a responsible choice in selecting a Colorado Criminal Defense Lawyer and we encourage you to “vet” our firm. Over the last 30 plus years by focusing ONLY on Colorado criminal law H. Michael has had the necessary time to commit to the task of constantly updating himself on nearly every area of criminal law, to include Colorado criminal law and procedure and trial and courtroom practice. H. Michael works hard to get his clients the best possible results in and out of the courtroom. He has written, and continues to write, extensively on Colorado criminal law and he hopes this article helps you in some small way.