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FAQ – Why Fast Track Colorado Domestic Violence Cases Should Be Stopped – Beware The Loss Of Your Rights*

Introduction – I have fought hard for clients who have been the victim of a system known as the Colorado Domestic Violence “fast track system.” This system has to be stopped if not modified to protect the rights of our citizens. So many are caught up in this “gotcha” approach to justice. This article addresses what this system is all about and why we must educate ourselves to protect ourselves. H. Michael

1994

It all Started With The Requirement For Mandatory Arrests in Colorado Domestic Violence Cases in 1994.

In 1994, the Colorado Legislature enacted new laws to crack down on domestic abuse, which caused judicial districts around the state to redesign their domestic-violence programs. The result, in many cases, was the “fast-track” model.

Until 1994 those arrested for other types of crimes, were entitled to bond out immediately. That year – it all charged – domestic-violence suspects that year and ever since cannot bond out of jail until a judge has advised them of the mandatory restraining order that’s issued in all domestic-violence cases to protect the victim.

Prior to fast track, domestic-violence suspects were generally treated like any other defendants: If arrested, they could usually post bond and would be released with a temporary restraining order and a summons to appear in court at a later time.

Bonding Out Is The Issue – With Bond Suspects Are Allowed To Rest and Seek Legal Advice

The problem with bonding out immediately is, according to prosecutors is that many domestic abusers “make up” with victims permitting a revisiting of the emotions and anger that led to the calling of the police in the first instance.

What prosecutors called recanting – defense lawyers call – revisiting the facts and evidence. Suspects and their alleged victims are permitted second thoughts about bringing in law enforcement.

Now There Is No Time For Reflection On Defenses and Obtaining The Advice Of A Lawyer

The result of mandatory arrest – no bail – policies is that domestic-violence defendants are forced to spend at least one night in jail. Most are then brought straight into court the next day for their advisement. Some defendants end up spending more than one night in jail if they are arrested on the weekend – or if they are arrested so late at night that their cases can’t be processed in time for the next day’s advisement.

At the fast-track hearing, immediately after a magistrate has advised defendants and set their bond conditions, a “pre-trial conference” begins, during which the defendants most of them still in custody and wearing jail outfits and handcuffs are offered plea bargains by deputy district attorneys.

Typically, a first-time offender pleading guilty to a misdemeanor harassment charge for example will receive a one-year deferred sentence with suspended jail. That means the defendant won’t serve any further jail time, and the conviction won’t be officially entered on the defendant’s record, so long as he or she complies with certain conditions.

The problems is this – in jurisdictions – such as Westminster and other Denver municipalities – deferred judgements are not offered – and instead a conviction enters as a result of the fast track coercive process.

Other conditions of probation include obeying a restraining order and completing many many weeks of domestic-violence counseling. The counseling is time-consuming and can cost defendants many of whom have limited means as much as $1,100.

Moreover, the penalties often include restrictions against possessing a firearm and using alcohol.

A defendant who rejects all plea offers and chooses to go to trial may get acquitted but could, if convicted, receive a harsher sentence.

An Inherently “COERCIVE” Environment

While many defendants might consider the plea-bargains a good deal, critics say the district attorney’s office is taking advantage of a “coercive” environment in fast-track court to extract guilty pleas against defendants’ better judgment.

Because they’ve been locked up overnight, defendants do not have the opportunity to seek the advice of a defense attorney. Many of these defendants are first-time offenders, inexperienced with the court system. After a first-ever night in jail, during which many of these arrestees neither sleep nor eat, defendants are worn down and are ready to sign just about anything put in front of them, critics argue.

Unclear In The Minds Of The Defendant

There is no legal obligation for a defendant to take a plea bargain in order to get out of jail on the day they are advised. However – as in a case I handled literally today (5/7/12) The Defendant is not told the amount or nature of the bond until AFTER they are compelled to meet with the prosecutor.

If a defendant qualifies for a personal-recognizance bond (also known as a signature bond), he or she can reject the plea offer and return for a later court date, at which time a plea offer is almost always still available.

In the meantime, the defendant can seek a private attorney or apply for assistance from the state public defender’s office.

Defendants are rarely – if ever – fully informed of the consequences of signing a plea agreement. In some cases, a guilty plea will result in a defendant forfeiting future rights to own a gun.

Under the Federal Law known as the Lautenberg Amendment – if, for example, a defendant is a police officer or in the military, he or she may be terminated or kicked out of the service since they cannot bear arms. A foreign citizen pleading guilty, meanwhile, risks deportation.

DA’s offer the plea agreement as the quickest way to get out of jail but do not advise defendants of the possible consequences of the plea bargain.

No Access To A Lawyer

In deciding whether to accept a plea, a defendant has no access to a lawyer who might offer legal advice. Furthermore, under Colorado state law, a defendant isn’t entitled to representation by a public defender until a pretrial conference has taken place and the prosecution has announced its intent to seek a jail sentence.

Sign here, sign here, sign here.

Defendants say the deputy district attorneys they dealt with in fast-track court were adversarial and seemed uninterested in hearing their side of the story.

Relatively inexperienced District Attorneys

Many of the deputies working the fast-track court are young and relatively inexperienced. County court involves people who are brand-new deputies, and it’s an ongoing training process. Sometimes, mistakes or allegations of unfair treatment lead to pleas being reversed or adjusted upon review.

One-quarter women

Approximately one-quarter of the defendants in fast track are women.

According to national statistics, only about 5 percent of domestic-violence perpetrators are women. The discrepancy indicates problems with the state’s mandatory-arrest law in domestic-violence cases. Many believe that the police are arresting too many women who were acting in self-defense.

Women arrested for domestic assaults are more likely than men to enter a guilty plea in order to get out of custody Women are likely to be the primary caretakers of the children and their decision is often influenced by their need to return home to their children.

The Institute for Law and Justice, a private research organization, has found that the fast-track process raises serious constitutional issues.

The chief concern is obvious – the lack of counsel during plea negotiations. Without a defense attorney looking out for them, defendants often feel coerced into pleading guilty in the belief that it will eliminate further court hearings and the need to take time from work to attend court.

Increased “Easy” Conviction Rates

Since fast track increases the number of guilty pleas,the District Attorney’s conviction rates may be an unstated incentive to prosecute borderline cases.

The Right To Delay The Decision To Plead Guilty Is In The Interests of Judtice

Several changes that could alleviate concerns about the fast-track program.

If defendants arrested on the weekend are allowed to post bond after watching a videotaped advisement, defendants could go home, think about their case, and obtain a lawyer if they so desired.

* This page was rewritten and also partially summarized from an article in The Colorado Springs Independent:

Railroaded for Domestic-violence Defendants, El Paso Countys Fast Track May Not Always Lead to Justice