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A Reason to Retain a Good Colorado Criminal Defense Lawyer

Law Book and Gavel 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.
The Two “Prongs” of a Colorado Claim of Ineffective Assistance of Counsel Under Rule 35

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. “

Another Roadblock the Court’s Will Presume That Your Lawyer Fell Within the Range of Reasonable Professional Assistance

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.

The Captain of the Ship Model

“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.

Summary and Conclusion Be Careful When You Select Your Colorado Criminal Defense Lawyer

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

A Reason to Retain a Good Colorado Criminal Defense Lawyer The Wrong Choice May be Irreversible

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

30 Years of Experience About The Author: H. Michael Steinberg Email The Author at hmsteinberg@hotmail.com. 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.

Client Reviews
★★★★★
"Mr. Steinberg provided my family with expert handling of my son's case. He took extra time understand the case, to consult with us during the pretrial proceedings, and to support him for a plea agreement. Mr. Steinberg is very knowledge about the law and very professional. He guided us in achieving the best possible outcome for my son. If I am ever in need of law services again, I will certainly have Mr. Steinberg handle my case. l also highly recommend his services to anyone that might be in need of an excellent defense attorney!" Tanya Witt
★★★★★
"I found myself in criminal trouble, that I wasn't guilty of and thanks to Mr. Steinberg's dedication and hard work, right before we we're looking at having to continue on to trial level Mr. Steinberg was able to use his vast knowledge of the law and his many respected years in the system to find a way to show my innocence. After a very unsure and somewhat difficult time for me, this very skilled and knowledgeable attorney was able to find the right path to take to reach a dismissal in my case. For that I can't tell you how much I appreciate his representation and his excellent understanding and helpful personality. He's a great man and an even better attorney but don't misunderstand him, he is an attorney not a therapist. Thanks H." Josh
★★★★★
"Working with Michael Steinberg was a wonderful experience. Truly people need to know that he is a expert in what he does. His personality is compassionate, intellectual, and down to earth. I glean that Michael is fun to be around. In the time I worked with him, it was a pleasure to be around him. As for my case, the outcome was amazing and couldn’t be better. He has made my life more manageable because of the outcome of my case. I’ve worked with other lawyers in the Denver area. He is superior to them all. If you’re in need of a lawyer and you come across Mr. Steinberg look no further he’s going to be the one you need. Thank you again Michael." Renee Taylor