Members of Colorado’s second-highest court told lawyers and judges on Thursday what they are looking for when a convicted defendant argues they are entitled to relief for reasons beyond the typical array of trial-related errors.

In contrast to direct appeals of criminal convictions, which usually allege errors before trial, at trial or at sentencing, defendants also have the opportunity to seek postconviction relief directly in the trial courts. That pathway, however, is only available for specific reasons, like constitutionally ineffective assistance of counsel or newly discovered evidence — assertions that would require some investigation.

Judge Neeti V. Pawar of the Court of Appeals said it is important to demonstrate there was both an error and it undermined confidence in the outcome of the trial.

“‘Had it not been for this, the outcome would have been different.’ But why?” she said. “Those prongs are both required. It surprises me how frequently we can resolve these cases — and are required to resolve these cases — because one is just not addressed.”

Under the rules, a trial judge can deny a postconviction petition outright if the defendant is clearly not entitled to relief. However, if a judge does not deny the motion, they “shall cause a complete copy of said motion” to be sent to the prosecution and, if the defendant has requested counsel, also send a complete copy to the public defender’s office. The appointed attorney may then investigate or supplement the claims that have “arguable merit,” and the trial judge may then hold a hearing.

Judge Craig R. Welling said that generally the problem is with the initial petition filed by the self-represented, or pro se, defendant. Unless they can show merit to one of potentially several claims, their petition will be dismissed outright and not have the chance for an appointed attorney to investigate.

Oftentimes, “the appellate brief is a really, really persuasive petition that, had I been the trial judge and this was the petition that was filed in front of me and these were the arguments that were made and these were the dots that were connected, I would have granted the hearing,” he said. Yet, the appellate court has to reject cases that “ultimately may have been meritorious, but the petition doesn’t advance it in a meritorious manner.”

The missing 911 tape

At the event, sponsored by the Colorado Bar Association, attorneys and trial judges spoke about the unique hurdles for postconviction cases.

“It’s deceivingly complicated and it drives practitioners crazy. It drives judges crazy,” said Denver District Court Judge Eric M. Johnson.

Ramsey Lama, a former trial judge in the 11th Judicial District who now specializes in postconviction cases, said attorneys have a duty to think about all potential avenues to investigate when a judge has determined a pro se defendant, who is likely in custody, has stated at least one credible issue with their conviction. Lama said it was important for appointed attorneys to speak with their client in doing so.

“They were there. They are often smart folks,” he said. “They may not be able to articulate it, but they know something might have went wrong.”

He told a story of one client who was convicted of entering a home and stealing DVDs. Under Colorado’s “three strikes” law, the defendant’s prior convictions earned him a 64-year prison sentence. Lama was hitting “dead ends,” but he kept seeing references in the case file to the victim’s 911 call. The audio, though, was nowhere to be found.

He learned the defense attorney at trial never had the recording. So, he asked police dispatch for it. The dispatch center provided the recording and told Lama neither the prosecution nor the defense ever requested it. On the call, the victim told police a White man with blonde hair, over six feet tall, was the suspect.

“My client was 5’2″, dark-skinned, Latino, black hair, brown eyes,” said Lama. His client wound up prevailing.

“Remember when you’re doing these investigations that mistakes happen. We all make them,” he said. “And I think sometimes, experts have a hard time with making mistakes or owning up to mistakes. And it’s normal.”

Lama also opined that trial judges are applying “too stringent of a standard” when initially reviewing petitions from self-represented litigants. The state Supreme Court recently accepted a case to resolve that question in a case alleging an inadequate DNA investigation.

“The problem with postconviction is this is potentially the last chance,” said attorney Rachel Oliver. “The manner in which you (lay out the argument) for somebody who has a short attention span who’s looking at your petition, it needs to be very direct.”

She said forensic science is a “really ripe area” to assert claims, as shown by the recent Colorado Bureau of Investigation scandal in which former analyst Yvonne “Missy” Woods is accused of tampering with evidence, impacting potentially more than 1,000 cases.

Rational or irrational?

Pawar and Welling, the appellate judges, talked specifically about claims of constitutionally ineffective assistance of counsel, and how defendants need to overcome the assumption that a trial lawyer’s choices were made purposefully based on the available alternatives.

“I’ve done this, I’ve seen our court do this, is we invoke that concept of giving a strong presumption that the lawyer was making strategic decisions,” Welling said.

“How do you determine if it’s reasonable? It’s relative to something else,” added Pawar. “A hearing would allow counsel to say, ‘Yeah, this seemed really bad, but let me tell you, the other options were worse. I couldn’t do this because the witness would have blah, blah, blah. I couldn’t have done this because the evidence would have cast shade on something else.’”

Welling observed he is seeing more arguments on appeal that defendants accepted plea deals before their lawyers investigated the case and realized they could defend it successfully at trial. But Welling added he had not seen any “terribly persuasive” arguments on that front.

Judge Elizabeth L. Harris, also of the Court of Appeals, countered that sometimes trial judges “jump the gun a little” in rejecting claims surrounding plea deals. She said a defendant may be able to show at a hearing that it really would have been irrational to take the plea — for example, if it meant there would be immigration consequences.

“You can plead, ‘I have four United States children here. I am gonna roll the dice. I would have rejected the plea and gone to trial,'” she said. “In that case then, the trial judge should not say, ‘That doesn’t make sense to me because you would’ve done 10 years in prison.’ No, you get a hearing.”