I have been running fast today. I am scheduled to be a part of a panel discussion at the Colorado Criminal Defense Bar CLE on Title IX Defense at the National Institute of Trial Advocacy in Boulder. The program’s date changed and I have some conflicts, such as a morning of mediation on a car crash case and meeting a potential new client who indicated he has the money.
Title IX defense has become a huge legal field across the country in the last several years. The consequences include expulsion with a permanent and ubiquitous record of “Responsible for Sexual Misconduct” on a person’s transcript. And this is if you are not prosecuted and put in prison for rape.
My first case was about 3 years ago. Despite winning that case, we are still trying to change his transcript from Fail and Incomplete to Withdrawn - he was accused 2 weeks prior to finals and was not allowed to sit for them. We are hopeful that CSU will allow Retroactive Withdrawal, rather than a lawsuit.
Over the years, I have worked on many Title IX cases, a few domestic violence charges (still noted as “Responsible for Sexual Misconduct” per university definitions), a probation revocation, sharing video of consensual sexual contact and numerous allegations of what is commonly called rape. My job on the panel was to share my experiences so that others could help their clients.
Upon getting my first case, I needed to research the issues. I knew how to investigate and try a criminal case where there are many due process protections for the accused, such as a jury trial, a judge that is not also police and prosecutor, the presumption of innocence, the burden on the prosecution of proof beyond a reasonable doubt, a trial where evidence is presented in open court with cross examination, knowledge of the factual allegations that support the charges and other reasonable, accepted and normal parts of a trial that are largely summed up by the school yard response to a claim of “prove it.”
Normally in criminal cases, we say prove it. We challenge the factual allegations. But where there are no due process protections like the above, "prove it" is not enough.
In fact, the accused is not presumed innocent and if s/he does not present evidence, s/he will lose. The investigator/prosecutor/judge is one person. That person believes trauma informed sexual assault theory. This essentially means that if reported, then guilty. In truth, the accused must prove themselves innocent.
I read articles on Andrew T. Miltenberg of Nesenoff & Miltenberg, LLP in New York nmllplaw.com. Mr. Miltenberg was essentially the alarm bell ringing on these issues. Not only was he pioneering the fight in schools, he was bringing cases to the Federal Courts and showing the lack of due process. I read his pleadings. This helped me present a fair due process argument at CSU, in addition to a thorough factual attack. Although we did not win initially, we won on university appeal.
Each time I started a new case, I learned more and fought the due process failures better. Each time, I learned how to better investigate in a school setting. Each time I advanced my process of how we responded, conversed with the investigators and prepared my clients. Specifically on factual issues, my Trial Lawyers College training helped me find facts and motivations that supported innocence.
Back to the Title IX panel discussion. Arriving shortly after the panel started, due to a successful car crash negotiation running long. I share what I have learned so others can help their clients without a Federal Lawsuit, or maybe to set it up better. I was a little dismayed to hear that most people did not feel they could win at the school level. I have successful results in almost all of my cases. This could be due to the random assignment of cases, or it could be due to my attitude, investigation and process. I was not trying to scold, I just wanted to encourage.
Guess who else is on the panel? Andrew T. Miltenberg, the pioneer. I am honored to participate with him. Andrew and I have a case together right now. We both got on the case after the university portion was complete. Andrew was preparing the Title IX Federal suit. I was defending the felony criminal sexual assault with force case filed in the Colorado state courts in Boulder. Last summer, I was able to show the prosecutor (now an Adams District Court judge) the trouble with the case. She dismissed. Andrew filed the Title IX suit not long after. We are in the midst of that litigation now.
Despite working together, we had not met face to face. It was great to learn from him and meet him.
I love teaching, which is really sharing things that I have learned from others or from experience. I have taught CLEs on DUI, Identification Evidence, Jury Selection, Restitution and other issues. I share my knowledge informally with my colleagues and they often do the same. I am quite proud to say I am now Faculty at the Trial Lawyers College (www.triallawyerscollege.com). I leave Thursday to teach at @TLCWY methods of jury selection in Alaska for Trial Lawyers College. I have written a few published articles. The best thing about teaching or writing is that it exposes what you do not know, so that you can get better. I am a better lawyer for teaching.
By the way, afterwards, I met the new client and he hired me.