Habitual Domestic Violence Offender Law Gets View by COA

The Colorado Court of Appeals this week, in People v. Vigil, ruled that the rarely-used Habitual Domestic Violence Offender law, enacted over a decade ago, requires that charges filed under the law be prosecuted as felonies, even if the underlying offense is a misdemeanor.  The HDVO law provides that a misdemeanor offense charged as an Act of Domestic Violence, when preceeded by three or more convictions for Acts of Domestic Violence, becomes a Class 5 felony offense, punishable by sentence to the Colorado Department of Corrections.  Because the defendant in Vigil was not given the process afforded a person charged with a felony, namely trial before a district court judge and a jury of twelve persons, the COA reversed his conviction and remanded the case for trial in the proper court with the proper jury panel.

Criminal cases can be complicated, both factually and legally, and require the attention of an attorney experienced in this area of the law to ensure that the proper procedure is followed and, when it is not, that the matter is properly preserved for review by the appellate courts.

Permitting Jurors to Discuss Case Before Evidence Concludes Not a Constitutional Violation

The Colorado Supreme Court ruled this week that, although it was improper for a judge to permit jurors to discuss the case before the evidence was concluded, such conduct does not unconstitutionally deprive a criminal defendant of a fair trial.  In People v. Flockhart, the trial judge expressly permitted jurors to discuss the case among themselves prior to the conclusion of all the evidence in the case, contrary to both convention and the law.  Although the Supreme Court disapproved of this, it held that it did not deprived the defendant of any right enjoyed under the Constitution, namely of the due process of a fair trial.  Additionally, the Supreme Court also let stand the trial judge's practice of requiring trial counsel to state reasons for excusal for cause in front of the entire venire panel.  Although most judges permit, in fact require, such discussions to take place out of hearing of the potential jury members to avoid tainting and/or prejudicing the potential jurors, the Supreme Court held that the practice was entirely within the discretion of the trial court.

It is the opinion of this blog host that the Flockhart decision seriously weakens a defendant's ability to enjoy a fair trial, and reflects a decided lack of concern by the Colorado Supreme Court for same.  The Flockhart case illustrates how the need for an experienced criminal attorney is essential in the never-ending battle to obtain true fairness and justice before our Colorado courts.