than Ms. Cohen allegedly being a bad lawyer and a bad person. Allegations that herlegal work embellished facts, she missed an important call, her child hit her head, andshe was concerned about the perception of others, were simply unanchored charactersmears. (Id. at 1678-83) To the extent Ms. Fiflis’s “red flag” testimony went to truthfulness, it did notconform to CRE 608 for two reasons. First, because she was the State’s witness onlyMs. Cohen could elicit specific instances of conduct on cross-examination. See CRE608(b). Second, Ms. Fiflis had not previously testified to Ms. Cohen’s generalcharacter. See id. Her testimony was largely confined to explaining the extent of theirworking relationship and why it ended. Ms. Fiflis’s narrative about red flags wassimply her opinion that Ms. Cohen had been untruthful on specific occasions. Suchtestimony is categorially improper, irrelevant, and invades the province of the jury. SeeVenalonzo, 388 P.3d at 877; Liggett, 135 P.3d at 731-32. Ms. Fiflis’s testimony was prejudicial because it factored into the jury’sevaluation of Ms. Cohen’s credibility. When jurors evaluated her testimony they likelycredited the opinion of an experienced attorney that she was a habitual liar andgenerally concerning person. That opinion corroborated and exacerbated the samemessage from the improperly admitted complaints addressed in section I. In a closelydisputed case about whether Ms. Cohen intended to deprive specific individuals of 42
specific sums of money, Ms. Fiflis’s character attack could have been outcomedeterminative. This Court should thus reverse Ms. Cohen’s convictions.IV. The district court deprived Ms. Cohen of her rights to counsel andpresence by responding to three questions from deliberating jurors withoutconsulting her or her attorney.A. Standard of review. Ms. Cohen did not have the opportunity to raise this issue in the district court.It was nevertheless preserved by the deliberation questions themselves. When thedistrict court received them it was alerted to the need to consult counsel and providedan opportunity to avoid error. People v. Guzman-Rincon, 369 P.3d 752, 756 n.5 (Colo.App. 2015). If a party “has no opportunity to object to a ruling or order, the absenceof an objection does not thereafter prejudice him.” Crim. P. 51. This Court reviews de novo whether a defendant’s right to counsel has beenviolated. Guzman-Rincon, 369 P.3d at 756. The constitutional harmless error standardapplies. Key v. People, 865 P.2d 822, 827 (Colo. 1994). The State thus bears the burdenof proving beyond a reasonable doubt that an error “did not contribute to thedefendant’s conviction.” Id. If there is “a reasonable probability from a review of theentire record that the defendant could have been prejudiced, the error cannot be harmless.”Id. (emphasis added). 43
This Court also reviews de novo whether a defendant’s right to presence hasbeen violated, and applies the constitutional harmless error standard. Guzman-Rincon,369 P.3d at 758.B. Applicable facts. Jurors asked four questions during deliberations. (R. Supr. pp.208-11) Thedistrict court did not consult either defense counsel or Ms. Cohen before answeringquestions two through four.5 Deliberation questions two and three related to the professional misconductevidence. Two stated: A. Can we use the decisions by the OAR and Supreme Court to inform our decision making? B. Is the OAR’s standard for verifying the receipt of money by an attorney the standard we can use? Example: When the Supreme Court or OAR refunded $ to a client, did the Supreme Court verify the amounts were actually paid? (R. Supr. p.209)The district court’s answer did not address the questions’ substance: A. You have all the evidence with which to consider during deliberations. B. You must follow the jury instructions in considering a verdict.5 See footnote 2. 44
(Id.)Question three stated: A. If client money not deposited into COLTAF account before actually earned does that constitute intent to deprive the other person permanently of use or benefit of the thing of value? B. What if at a later time the $ is earned? Does this undo the COLTAF violation (depravation of property)? In other words Jury Question 12 3c (no longer a permanent depravation)? (Id. at 210)Again, the district court’s response did not answer the questions: A. This is an issue for the jury to decide during deliberation. B. Same answer. The jury must follow the jury instructions. (Id.)Question four concerned a possible deadlock, and is addressed in issue V.C. Applicable law.i. Questions from deliberating juries. When a deliberating jury “indicates to the judge that it does not understand anelement of the offense charged or some other matter of law central to the guilt orinnocence of the accused, the judge has an obligation to clarify that matter for the juryin a concrete and unambiguous manner.” Leonardo v. People, 728 P.2d 1252, 1256 45
(Colo. 1986). A court “shall give additional instructions in response to the jury’srequest” unless: - Jurors may adequately be informed by directing their attention to the original instructions, - The request concerns matters not in evidence or questions that do not pertain to the law of the case, or - The request would call upon the judge to express an opinion on factual matters the jury should determine. Id. at 1255.When a jury’s question indicates it has considered and has questions about theexisting instructions, a trial court cannot simply refer jurors back to them. Id. Doingso “could serve no useful purpose.” Id.ii. The right to counsel. “The right to counsel exists at every critical stage of a criminal proceeding.”Key, 865 P.2d at 825; see also U.S. Const. amend. VI; Colo. Const. art. II, § 16.Defendants have a “fundamental right under the Colorado constitution to havecounsel present when the judge gives instructions to the jury or responds to questionsfrom the jury.” Leonardo, 728 P.2d at 1257. That right includes “the right of defensecounsel to argue to the court concerning possible responses to the jury’s inquiries and 46
make objections, if desired, to those responses.” Id. “It is therefore constitutionalerror for a trial judge to respond to an inquiry from a jury without first making reasonableefforts to obtain the presence of defendant’s counsel.” Id. (emphasis added); see also United Statesv. Smith, 31 F.3d 469, 471 (7th Cir. 1994) (this type of error implicates the Sixth andFourteenth Amendments).iii. The right to presence. “Article II, section 16, of the Colorado Constitution, and the Due ProcessClause, as well as the Sixth Amendment to the United States Constitution, guaranteethe right of a criminal defendant to be present at all critical stages of the prosecution.”Guzman-Rincon, 369 P.3d at 758 (quotation omitted). Defendants have the right to bepresent “whenever their presence has a reasonably substantial relation to the fullnessof their opportunity to defend against the charges.” People v. Payne, 361 P.3d 1040,1043 (Colo. App. 2014); see also Kentucky v. Stincer, 482 U.S. 730, 745 (1987). A districtcourt’s formulation of a statement to deliberating jurors is a critical stage of trial. SeeGuzman-Rincon, 369 P.3d at 759 (concluding “defendant’s right to be present wasviolated when the court discussed with the prosecutors what to tell the jurors”).D. Application. It was constitutional error for the district court to answer deliberationquestions two through four without consulting defense counsel. See Leonardo, 728 47
P.2d at 1257. Because the district court deprived Ms. Cohen of any opportunity forher attorney to argue how it should respond, or object to its response, her right tocounsel was violated. See id. The district court also violated her right to presence. Had Ms. Cohen beenpersonally present when the court formulated a response to the jury’s questions, shetoo could have exercised her right to interject input or object. See Guzman-Rincon, 369P.3d at 759. The district court observed at sentencing that Ms. Cohen had provided“significant assistance” to her attorney and effectively acted as his paralegal. (R. Tr.04/24/15, pp.2269-70) Her presence for the formulation of responses to thedeliberating jury, whose questions went to the core of the State’s case, wassubstantially related to the “fullness of [her] opportunity to defend against thecharges.” See Payne, 361 P.3d at 1043. The depravation of Ms. Cohen’s rights to counsel and presence was harmful, inpart because the district court’s answers to the deliberating jury were erroneous.Questions two and three illustrated that jurors had reviewed the original instructions,and had questions about how to apply them to the evidence. (R. Supr. pp.209-10)The district court had “an obligation to clarify that matter for the jury in a concreteand unambiguous manner.” See Leonardo, 728 P.2d at 1256. Its responses provided 48
no clarification. Simply referring jurors back to the same evidence and instructionsthat created doubt in their minds “could serve no useful purpose.” See id. at 1255. Had the district court given Ms. Cohen or defense counsel the opportunity toprovide input on the deliberation questions, they could have. The example inquestion two appears to reference evidence that the supreme court had already paidmany of the alleged victims through the client protection fund. (R. Tr. 12/02/14,p.472; R. Tr. 12/05/14, p.1220; R. Tr. 12/08/14, pp.1308, 1386-87; R. Tr. 12/09/14,p.1554) Jurors were inquiring whether they could use that type of evidence asconclusive proof of theft, by asking whether they could use “the decisions by theOAR and Supreme Court” and “OAR’s standard for verifying the receipt ofmoney[.]” (R. Supr. p.209) The answer to both subparts of question two should havebeen: “No.” Disciplinary proceedings do not require proof beyond a reasonabledoubt. C.R.C.P. 251.18(d), 252.12. Even if they did, it was the jury’s job toindependently determine whether the State proved the elements of theft by thatstandard. See In re Winship, 397 U.S. 358, 363-64 (1970). For the same reasonsexplained in sections I(C)(ii) and II(D), jurors could not use decisions by OARC andthe supreme court as proof of theft. Question three, regarding whether a COLTAF violation constitutes the intentelement of theft, amounted to jurors asking whether ethical violations are equivalent 49
to a crime. (R. Supr. p.210) Again, the answer should have been: “No.” Jurorsshould have been informed that an ethical violation “should not itself give rise to acause of action against a lawyer nor should it create any presumption in such a casethat a legal duty has been breached.” See Colo. RPC Preamble, ¶20. They were not. This case never should have been focused on professional ethics, but it was.Ms. Cohen had the right to be present and represented by counsel when the jurorsdeliberating on her fate asked questions that went to the heart of the State’s case. Shewas deprived of that right, and this Court should reverse her convictions.V. The district court deprived Ms. Cohen of her rights to counsel and presenceby delivering a modified Allen instruction in her absence and withoutconsulting her or her attorney.A. Standard of review. Ms. Cohen did not have the opportunity to raise this issue in the district court.For the same reasons expressed in section IV(A), however, this Court should deem itpreserved. The applicable standard of review is the same as explained in section IV(A).B. Applicable facts. Deliberation question four stated: “If we are unable to reach a unanimousdecision on a single count, what happens? For example, is that OK? Can we move 50
on with all the others?” (R. Supr. p.211) The district court addressed jurors inresponse: Okay. In this case you must decide separately whether the Defendant is guilty or not guilty on each count. If you cannot agree upon a verdict as to one or more counts, but do agree as to others, you must render a verdict as to the ones upon which you do agree. And then let me read another one, which I think that you have this one, and then we’ll save the best for last. [The court then reviewed jury instruction 8, regarding separate offenses.] And now here’s the instruction I give you when you can’t agree. [The court then provided a modified Allen instruction.] (R. Tr. 12/15/14, pp.2211-12) Neither Ms. Cohen nor defense counsel was consulted before the district courtdelivered its response, and neither was present in the courtroom.6C. Applicable law.i. Procedures for potentially deadlocked juries. When a jury has indicated it may be deadlocked, giving a modified Alleninstruction is not the first response. In cases involving lesser included offenses, thecourt “should first ask the jury whether there is a likelihood of progress towards aunanimous verdict upon further deliberation.” People v. Lewis, 676 P.2d 682, 6896 See footnote 2. 51
(Colo. 1984), superseded by statute on other grounds as recognized in People v. Richardson, 184P.3d 755 (Colo. 2008). An affirmative response should require further deliberationwithout any additional instruction. Id. If the jury answers negatively, “the courtshould then inquire whether the jury is divided over guilt as to any one of the offensesand nonguilt as to all offenses, or instead, whether the division centers only on theparticular degree of guilt.” Id. Only if an impasse relates solely to the former may thecourt, in its discretion, give a modified Allen instruction. Id.ii. The right to presence and counsel. The law regarding the rights to presence and counsel, as stated in sectionsIV(C)(ii) and IV(C)(iii), applies here. Defendants have a constitutional right to be present when a trial court deliversa modified Allen instruction, and a violation of that right is reversible error. Payne, 361P.3d at 1044-45. In People v. Payne a trial court gave the instruction after jurors twiceindicated they were deadlocked, over defense counsel’s objection that the defendantshould be present. Id. at 1042. On review this Court agreed with federal casesholding a defendant has the right to be present “when a jury is given instructions inopen court, regardless of whether the defendant can provide any assistance to his orher counsel.” Payne, 361 P.3d at 1043 (citing Larson v. Tansy, 911 F.2d 392, 395-96(10th Cir. 1990); United States v. Fontanez, 878 F.2d 33, 38 (2d Cir. 1989); Wade v. United 52
States, 441 F.2d 1046, 1050 (D.C. Cir. 1971)). It reasoned the defendant’s presence“could have had a psychological effect on the jurors in a way that benefited hisdefense.” Id. at 1044. “Moreover, the jury might have speculated on why defendantwas absent, or may have interpreted his absence as indicative of a lack of interest inthe outcome of the case.” Id. Under those circumstances, the prosecution “failed tocarry their burden of proving beyond a reasonable doubt that there was no reasonablepossibility that defendant was prejudiced by his absence when the court read theinstruction.” Id. at 1045; see also Guzman-Rincon, 369 P.3d at 760.D. Application. What occurred here is what was reversible error in Payne. Deliberation questionfour signaled that jurors had reached a critical point regarding one or more charges.(R. Supr. p.211) By bringing them into court, and responding to their question in Ms.Cohen’s absence, the district court violated her constitutional right to be present anddeprived her of the psychological impact her presence would have had on the jury.See Payne, 361 P.3d at 1044. Further, the court’s decision could have caused jurors tospeculate regarding her absence, assume she was uninterested in the outcome, orbelieve she had resigned herself to defeat. See id. This was Ms. Cohen’s trial, and it was her liberty at stake. She had the right tobe in the physical presence of those who were in the process of deciding whether that 53
liberty would be lost. After a lengthy and contentious trial, there is more than a“reasonable possibility” she was prejudiced by being absent from the courtroom whenjurors’ final pre-verdict question was addressed. See id. at 1045. What aggravates this case beyond Payne is that Ms. Cohen was also deprived ofher rights to presence and counsel when the district court determined how to respondto question four. The question did not indicate: (1) whether jurors had alreadyevaluated all counts; (2) whether jurors had conclusively determined they weredeadlocked; or (3) whether jurors were struggling to decide guilt or innocence, or thedegree of guilt, regarding one or more counts. (R. Supr. p.211) Both Ms. Cohen andher attorney had the constitutional right to suggest responses or object to the districtcourt’s response. See Leonardo, 728 P.2d at 1257; Guzman-Rincon, 369 P.3d at 759. Had the district court given Ms. Cohen or her attorney an opportunity toprovide input on deliberation question four, they could have. The district court’sresponse violated supreme court guidance by skipping straight to a modified Alleninstruction. Ms. Cohen or counsel could have requested that the Lewis guidance befollowed, and that the district court begin by asking “whether there is a likelihood ofprogress towards a unanimous verdict upon further deliberation.” Lewis, 676 P.2d at689. This less coercive alternative would have rendered it less likely that jurors, whoat that point could not have spent even an hour evaluating each charge, would rush to 54
a conclusion of guilt. The Lewis guidance exists to avoid judicial constraint on juries’deliberative process. See id. at 689-90. Ms. Cohen should have, at very least, beenprovided her right to request that it be followed. It is impossible to say whether giving a modified Allen instruction, or givingone in Ms. Cohen’s absence, impacted the jury’s decision making process as to any ofthe counts. Hence the State cannot meet its burden of “proving beyond a reasonabledoubt that there was no reasonable possibility that [Ms. Cohen] was prejudiced” byher and her counsel’s absence. See Payne, 361 P.3d at 1045. This Court should thusreverse her convictions.VI. The cumulative impact of the errors in this case requires reversal.A. Standard of review. This issue was not raised at trial. This Court may nevertheless independentlyreview whether reversal is required based on the cumulative impact of numerouserrors. See Oaks v. People, 150 Colo. 64, 66-67, 371 P.2d 443, 446 (1962).B. Applicable law and application. Ms. Cohen’s lawyer status did not exempt her from the rules. She was entitledto a trial on whether she committed the charged offenses, not on whether she was anethical or successful professional. The errors here worked together to deprive her ofthat right by injecting allegations of numerous ethical breaches, turning the ethical 55
rules into necessary statements of criminal law, and smearing her professionalcharacter. They then prevented her from correcting that shift in focus by denying herand her counsel any ability to help craft answers to jurors’ questions about that sameevidence, and by excluding her from jurors’ presence during a critical time. Viewedindividually or cumulatively, those errors violated her constitutional right to a fair trialconducted in accordance with the criminal law. That result cannot stand. CONCLUSION Ms. Cohen respectfully requests that this Court reverse her convictions andremand this case for a fair trial. DOUGLAS K. WILSON Colorado State Public Defender ____________________________________ MARK EVANS, #40156 Deputy State Public Defender Attorneys for Emily Elizabeth Cohen 1300 Broadway, Suite 300 Denver, Colorado 80203 (303) 764-1400 56
CERTIFICATE OF SERVICE I certify that, on July 6, 2017, a copy of this Opening Brief of Defendant-Appellant was electronically served through Colorado Courts E-Filing on L. AndrewCooper of the Attorney General’s office through their AG Criminal Appeals account. 57
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