September 17, 2009 News » Cover Story

Michael Salkind 

Criminal defense lawyer

Regarding criminal prosecution in this city, the system is no more or less broken than ever; it continues to be perfectly imperfect. Few of those with more than a passing familiarity would disagree, however, that our method of handing domestic violence (DV) cases is particularly and horribly flawed.

Prior to a strengthening of Colorado laws that began in 1994, DV cases were sometimes treated as if they were not crimes; cases of real abuse were shrugged off as being the business of a man and woman, in their homes, and not in the courts. Abusers received the message that it was OK to abuse. Some partners, mostly women, found themselves in a cycle of domestic violence.

In order to address perceived gaps, laws were passed that remove discretion from all parties, from law enforcement to prosecutors to sentencing judges. Suspected perpetrators must be arrested, though for the equivalent non-DV misdemeanor charges, police merely issue a summons. No one may bond out until the next day, until after a judicial advisement, in contrast to serious felony cases in which the arrestee may bond out almost immediately. The accused must appear in front of a judge the next day.

The absurdities aren't hard to find. For instance, those arrested on Friday and Saturday do not have to wait to see a judge — they may simply bond the next day. Also, the 24-hour waiting period is disingenuous; a video advisement can easily be provided without the overnight wait.

Most importantly: Effectively, there is little distinction between a man who rips his girlfriend's shirt during an isolated disagreement, and a woman who regularly beats her husband, leaving welts and bruises. The prosecution's hands are politically tied, and case-by-case approaches are barred. There is a one-size-fits-all approach dictated by inflexible statutes and the way they were interpreted, when first implemented, by our local prosecution and courts.

Many first-time offenders appear before the judge while handcuffed behind the back, wearing a jumpsuit, exhausted and scared, whereupon they are descended upon by young assistant district attorneys, with sharp teeth, who strongly imply that if a plea bargain is not immediately accepted, much worse is in store. (I added the part about the sharp teeth; some have normal teeth.)

This is known as Fast Track. Many people take deals and suddenly have to deal with grave consequences that are not mentioned or explained during the Fast Track feeding frenzy.

For example, those in the military suddenly lose their careers because they cannot then legally possess firearms. This is called a "collateral consequence," as if it is of no consequence, and the court is not responsible for relaying this information. A class of criminals now lives among us, those blindsided by the giant DV net — people who now have criminal records that greatly limit so many future options.

I have been visited by many people with buyer's remorse, sorry they accepted a plea bargain at Fast Track, explaining to me that they felt they had no choice. However, I can do nothing for them. Attempts to point out the constitutional violations of Fast Track have gone unheeded.

The only good news for those accused: The lack of reasonable options has made it impossible for the prosecution to try more than a handful of cases. The courts can only accommodate so many trials, or risk legal coagulation, and thus many cases simply go away.

So those who survive the Fast Track gauntlet and set the case for trial are very likely to not go to trial. Which cases go to trial is often determined by whether or not the "victim" appears; the victim's absence makes most cases untriable.

Of course, this means that the people whom common sense would dictate need to be stopped, the genuine abusers, are just as likely to skate free as anyone, winning a bureaucratic lottery.

The state of the city can and would be vastly improved if, in the absence of being allowed to offer reasonable dispositions, the courts and prosecution went all renegade and refused to be restrained by the legislative bonds.

The police, the prosecution and the courts should work together to triage the cases, and dismiss those cases deemed less severe. If, in response, Colorado wants to become reasonable, to devise punishments that, in fact, fit the crime, then we will agree to going back to following its laws.

Michael Salkind has been practicing criminal defense in Colorado Springs since 1994. He drums, pets dogs, and is a former contributor to the Independent. He is opinionated to the point of being grating.


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