Prosecutor 101

1. Prosecutor 101 MICHAEL W. MELITO OFFICE of the COLORADO ATTORNEY GENERAL SPECIAL PROSECUTION UNIT May 8, 2012

2. WHAT’S THE POINT? • Why prosecute crime? - Stop the conduct - Punishment - General deterrence - Specific deterrence - Enforce community expectations - Educate public - Protect Society conduct

3. Criminal Charging Decisions • Factors • Need for further investigation • Nature of the Offender • Nature of the Offense • Motive • Traditional Crimes • Voluntary Disclosure/Compliance • Cooperation with law enforcement • Preventative Measures Taken Subsequent

4. Charging by Information/Complaint • Filed Directly with the Court • Statutory language • No facts • Results in acquisition of Defendant to appear in court • Arrest • Summons

5. Pros Speed Flexibility Charging decisions made only by the prosecutorial team Cons Preliminary hearings Increases motion practice Pros/Cons of Information

6. Charging by Indictment • Evidence presented to Grand Jury • Indictment drafted for Grand Jury • Deliberation to determine probable cause • Upon finding of probable cause, filed with court • Supervising court can order arrest and set bond amount

7. Cons Requires presentation of case Indictments must contain facts relied upon to indict Grand Juries are juries Pros No Preliminary Hearing True Bill (usually) Avoid allegations of malicious prosecution Lessens Motion Practice Evidentiary Rules Lack of Cross Examination Grand Juries are juries Pros/Cons of Indictment

8. The Criminal Process You Will be Involved in: • Investigations/Provide information for Search Warrants or Subpoenas◄ • Charging Methods -Complaint/Information/Grand Jury ◄ • Pre-trial Hearings/Evidentiary Hearings ◄ • Trial ◄ • Sentencing ◄

9. Ultimately the Prosecutor Needs Jury Appeal • Give the case “APPEAL” (no pun intended) • Law & Order, JAG, Alley McBeal, A Few Good Men • Traffic Court is not exciting • Exploding things are exciting • Why should the jury care? • Theme/Story/Motive

10. Goals of Prosecutors • Fairness • Achieve Compliance with the Law • Deter wrongful behavior • Teach Public • Create or foster Initiative • Punish • Other

11. PREPARATION • Contact the prosecutor to meet • Review ALL relevant writings • Know your issues and your piece of the puzzle • “I don’t know”… is OK… • Bobby Knight: “5P’s”

12. • Prosecutors are actually nice people •Counter your ANXIETY ─ Thorough preparation ─ Discuss weaknesses of your case ─ Show the hard work of your company/agency to protect your company and/or the public

13. COMMON FINANCIAL CRIMES • Theft, § 18-4-401 • Forgery, § 18-5-102 • Attempt to Influence a Public Servant, § 18-8-306 • Identity Theft, § 18-5-902 • Tax Crimes (Evasion/Failure to Pay) § 39-21-118 • Money Laundering § 18-5-309 • Colorado Organized Crime Control Act, § 18-17-101 et seq.

14. Theft 1. in the State of Colorado, at or about the date and place charged, 2. knowingly, 3. obtained or exercised control over, 4. a thing of value, 5. without authorization, or by threat or deception, 6. with intent to permanently deprive the other of the use or benefit of the thing of value, and 7. the value of the thing involved is XXXXX, but less than XXXXX dollars. • (People v. Glenn Demarest and People v. Annabelle’s Restoration, LLC)

15. Forgery 1. In the State of Colorado on or about the date and place charged, 2. with the intent to defraud, 3. falsely made, completed, altered, or uttered a written instrument 4. which was or which purported to be, or which was calculated to become or to represent if completed 5. deed, will, codicil, contract, assignment, commercial instrument, promissory note, or other instrument which document did or may have evidenced, created, transferred, terminated, or otherwise affected a legal right, interest, obligation, or status (People v. Ernie Colter, People v. UtoEssian)

16. 1. in the state of Colorado, at or about the date and place charged, • 2. attempted to influence a public servant, • 3. by means of deceit, • 4. with the intent to alter or affect the public servant’s decision, vote, opinion, or action concerning any matter, • which was to be considered or performed by the public servant, agency or body of which he or she was a member. • (People v. Daniel Stonebarger) Attempt to Influence a Public Servant

17. Identity Theft That the defendant, 1. in the State of Colorado, on or about the date and place charged, 2. with the intent to defraud, 3. falsely made, completed, altered, or uttered or attempted to falsely make, complete, alter, 4. or utter a written instrument or financial device containing personal identifying information, • or financial identifying information. • Of another. (Gemini and People v. Kelly Deal)

18. Tax Evasion 1. in the State of Colorado, at or about the date and place charged, 2. willfully attempted to evade or defeat a tax administered by the Colorado Department of Revenue, 3. or the payment thereof.

19. Money Laundering 1. In the State of Colorado on or about the date and place charged, 2. intentionally, 3. conducted a financial transaction involving property that was represented to be the proceeds of a criminal offense, or involving property that the defendant knew or believed to have been used to conduct or facilitate a criminal offense to: 4. [promote the commission of a criminal offense] OR [conceal or disguise the nature, location, source, ownership, or control of property the defendant believed to be the proceeds of a criminal offense] OR [avoid a transaction reporting requirement under federal law] (New to me and CO. Generally, in the past = drug cases)

20. WTFCOCCA Cases? WHERE TO FIND COCCA Cases?

21. Violation Of The Colorado Organized Crime Control Act—Participation In An Enterprise • 1. in the State of Colorado, at or about the date and placed charged, • 2. while employed by, or associated with any enterprise, • 3. knowingly, • 4. conducted or participated, directly or indirectly, in such enterprise, through a pattern of racketeering activity.

22. Criminal Enterprise A A Criminal Behavior

23. Who are the targets? “Bummer of a birthmark, Hal” – Gary Larson

24. THE COURTROOM

25. COMINGTO COURT • Check in • Sequestration • Refresh your recollection • Proper Conduct • Bring a book/Ipod

26. DRESSINGFOR COURT • Dress as a professional • If your agency/company regularly wears a uniform, wear it • Look like you have been to court before • First impression key to your credibility

27. Civil Discovery Work Product Attorney/Client Any other privileged material Criminal Discovery Rule 16 Work Product …but “Brady Material” Discovery

28. Government has the burden of proof ─ Must prove guilt beyond a reasonable doubt ─ “. . . proof of such a convincing character that, after consideration, you would be willing to rely and act upon it without hesitation in your important affairs. A defendant is never to be convicted on mere suspicion or conjecture.”

29. POINTERS • Discuss uncertainties • Mistakes will be made, keep an open mind, we will… • Opinions vs. Fact… tell us which • Be eager to do more investigation when requested

30. • Let the Justice System do its job ─ Honesty ─ Track all Evidence • It is not a game or a contest

31. Sentencing Options • Incarceration • Probation • Fines • Restitution • Debarment (A civil action for defendants and corporate defendants) • Other options

32. Michael W. Melito Senior Assistant Attorney General Michael.Melito@state.co.us (303) 866 5310