Thursday, January 27, 2011
Quote
"What is true of individuals is true of nations. One cannot forgive too much. The weak can never forgive. Forgiveness is the attribute of the strong." Ghandi
Wednesday, January 19, 2011
LEGAL MAIL: OPEN ONLY IN PRESENCE OF INMATE CONFIDENTIAL ATTORNEY-CLIENT COMMUNICATION
From Bryan's Attorney, February 1, 2010
Dear Bryan:
I am very sad and disappointed to inform you that a judge has denied our motion to reconsider your sentence. Enclosed is his order [reader please refer to previous post for reproduction of this enclosure]. As you will see, he denied our motion without a hearing, without seeking the prosecution's response, and with scant attention to all of the materials we provided him (e.g. no mention of Elliot Patton's affidavit or the personal history time line). Judge Rappaport rotated off of the criminal bench on January 11, 2010; Judge McGahey replaced her. (Rappaport is still a judge, but now has a civil docket. The Denver District Court judges rotate about every two years between the various types of cases to be heard -- civil, criminal, domestic, and other.) Judge McGahey essentially rubber-stamped Judge Rappaport's prior decision.
I cannot express how sorry I am that we did not get any relief. Your sentence is far too long for who you are -- you are a good person, a smart person, and a caring person. You have enormous talents -- I've listened to your music web site -- and in all of our discussions with your family and friends, you have had such a positive impact in many people's lives. Most important, in my interaction with you, I've come away with the strong belief that you do not belong in prison. You are a thoughtful and caring man, and you are not a danger to lady X or anyone else. Regrettably, the process of reconsideration is so impersonal and too after-the-fact, that judges - or in particular this judge - was unwilling to look beyond the nature of the offense and Judge Rappaport's prior determination.
A few things in this process surprised me - I would have thought the judge would have ordered the prosecution to respond, and to state the position of lady X. Or, the judge would have granted a hearing to hear the prosecution's response and lady X's position on reconsideration (and probably lady X's father's position on reconsideration). That did not happen. While receiving any relief as to the length of your sentence if lady X and her father opposed reconsideration was a long shot, I am surprised the Judge summarily denied our request without a hearing.
I have filed a brief request for a hearing on the matter. I strongly anticipate that request (essentially, please reconsider your denial of our reconsideration) being denied as well, but at this point, there is certainly no harm in asking. There is no sense in appealing the denial of a motion to reconsider sentence - it is an abuse of discretion standard that will not be met in this case. One final option of legal relief is raising an ineffective assistance of counsel claim against your trial lawyer. A person has three years from the time of conviction to raise such a claim. I am not convinced that such a claim is likely to succeed - we would have to show that Robert Cain's conduct fell below the general standard of care of a criminal defense attorney, and that his substandard conduct resulted in actual prejudice. While I may have done things very differently than Mr. Cain, and while we could probably show some deficiencies in Mr. Cain's performance, I think it will be difficult for us to prove that those deficiencies resulted in actual prejudice to you. I would fully anticipate the prosecution claiming the offer would not have changed, and since the sentence was within the range authorized, the sentence would not have certainly changed. This is certainly a more complicated issue than I have just set out in this brief letter, so please feel free to write me with any questions you may have about this or any aspect of your case.
Thank you for allowing me to work on your case and again, I regret terribly having to report this bad news.
Take care,
Attorney after the fact for Bryan Day
Dear Bryan:
I am very sad and disappointed to inform you that a judge has denied our motion to reconsider your sentence. Enclosed is his order [reader please refer to previous post for reproduction of this enclosure]. As you will see, he denied our motion without a hearing, without seeking the prosecution's response, and with scant attention to all of the materials we provided him (e.g. no mention of Elliot Patton's affidavit or the personal history time line). Judge Rappaport rotated off of the criminal bench on January 11, 2010; Judge McGahey replaced her. (Rappaport is still a judge, but now has a civil docket. The Denver District Court judges rotate about every two years between the various types of cases to be heard -- civil, criminal, domestic, and other.) Judge McGahey essentially rubber-stamped Judge Rappaport's prior decision.
I cannot express how sorry I am that we did not get any relief. Your sentence is far too long for who you are -- you are a good person, a smart person, and a caring person. You have enormous talents -- I've listened to your music web site -- and in all of our discussions with your family and friends, you have had such a positive impact in many people's lives. Most important, in my interaction with you, I've come away with the strong belief that you do not belong in prison. You are a thoughtful and caring man, and you are not a danger to lady X or anyone else. Regrettably, the process of reconsideration is so impersonal and too after-the-fact, that judges - or in particular this judge - was unwilling to look beyond the nature of the offense and Judge Rappaport's prior determination.
A few things in this process surprised me - I would have thought the judge would have ordered the prosecution to respond, and to state the position of lady X. Or, the judge would have granted a hearing to hear the prosecution's response and lady X's position on reconsideration (and probably lady X's father's position on reconsideration). That did not happen. While receiving any relief as to the length of your sentence if lady X and her father opposed reconsideration was a long shot, I am surprised the Judge summarily denied our request without a hearing.
I have filed a brief request for a hearing on the matter. I strongly anticipate that request (essentially, please reconsider your denial of our reconsideration) being denied as well, but at this point, there is certainly no harm in asking. There is no sense in appealing the denial of a motion to reconsider sentence - it is an abuse of discretion standard that will not be met in this case. One final option of legal relief is raising an ineffective assistance of counsel claim against your trial lawyer. A person has three years from the time of conviction to raise such a claim. I am not convinced that such a claim is likely to succeed - we would have to show that Robert Cain's conduct fell below the general standard of care of a criminal defense attorney, and that his substandard conduct resulted in actual prejudice. While I may have done things very differently than Mr. Cain, and while we could probably show some deficiencies in Mr. Cain's performance, I think it will be difficult for us to prove that those deficiencies resulted in actual prejudice to you. I would fully anticipate the prosecution claiming the offer would not have changed, and since the sentence was within the range authorized, the sentence would not have certainly changed. This is certainly a more complicated issue than I have just set out in this brief letter, so please feel free to write me with any questions you may have about this or any aspect of your case.
Thank you for allowing me to work on your case and again, I regret terribly having to report this bad news.
Take care,
Attorney after the fact for Bryan Day
Saturday, January 8, 2011
elitefitrea.com
Dear Reader,
My website is up [www.elitefitrea.com]. I've been working on it, slowly, between lockdowns, searches, and general security for months. [It is all hand-coded.] It has been a challenge to complete. There are a few errors, but I had to seize an opportunity as it arose. There are at least a dozen ways it could have happened. Naturally, cross-browser testing was unavailable.
On the site is some information about me, my past, my music, and the meaning of elite|fitrea. There are also some letters written by other inmates, as well as 30 or so articles penned by Michael McCarthy, a unique character in his own right.
With the task successfully accomplished, I can dive deeper into my story. I have also developed a habit of writing down quotes, thoughts, and book excerpts as I come across them. These will be posted at my family's leisure. The telling of this story is one of the strangest things I have ever attempted; it fills me with dread and intrigue.
I have no idea what I am doing.
Thanks for reading all the same.
-B
My website is up [www.elitefitrea.com]. I've been working on it, slowly, between lockdowns, searches, and general security for months. [It is all hand-coded.] It has been a challenge to complete. There are a few errors, but I had to seize an opportunity as it arose. There are at least a dozen ways it could have happened. Naturally, cross-browser testing was unavailable.
On the site is some information about me, my past, my music, and the meaning of elite|fitrea. There are also some letters written by other inmates, as well as 30 or so articles penned by Michael McCarthy, a unique character in his own right.
With the task successfully accomplished, I can dive deeper into my story. I have also developed a habit of writing down quotes, thoughts, and book excerpts as I come across them. These will be posted at my family's leisure. The telling of this story is one of the strangest things I have ever attempted; it fills me with dread and intrigue.
I have no idea what I am doing.
Thanks for reading all the same.
-B
Prison Bands September 2010
BCCF R&B Band September 2010Bryan - Bass
BCCF Rock Band September 2010Bryan - Lead Guitar and Vocals
Friday, January 7, 2011
quote
"I see neither contradiction nor insanity in my life. It is true that as a man cannot see his back, so can he not see his errors or insanity. But the sages have often likened a man of religion to a lunatic. I therefore hug the belief that I may not be insane and may be truly religious. Which of the two I am in truth can only be decided after my death."
Ghandi (From All Men Are Brothers)
Monday, January 3, 2011
ORDER RE: MOTION FOR RECONSIDERATION
DISTRICT COURT, CITY AND COUNTY OF
DENVER, COLORADO
Court Address: 1437 Bannock Street, Denver, Colorado 80202
THE PEOPLE OF THE STATE OF COLORADO
Plaintiff
v.
BRYAN DAY
Defendant
Case Number: 08CR5841
Ctrm: 13
THIS MATTER comes before the Court on Defendant's Motion for Reconsideration of Sentence to 35 (B), filed November 25, 2009. The Court has reviewed the motion, as well as the Court's file and applicable authorities. Upon consideration thereof, the Court enters the following findings and order:
On July 31, 2009 Mr. Day was sentenced to the Department of Corrections for a period of ten years for Arson (F3) and two years for Stalking (F5)--the Court ordered the sentences to run concurrently. Mr. Day requests that either: 1) his sentence for Arson be reduced from ten years to four years; or 2) the Court craft a hybrid sentence between his two charges in order to reduce Mr. Day's prison sentence.
I have reviewed and considered Mellani Day (Defendant's mother) affidavit and the concerns she has expressed about Mr. Day's emotional history. I have also reviewed Dr. Friedman's assessment and evaluation of Mr. Day.
In ruling on a motion for sentence reconsideration, the trial court must consider all relevant and material factors which may affect the decision on whether to reduce the original sentence. See Mikkleson v. People, 618 P.2d 1101, 1102 (Colo. 1980); see also People v. Smith, 536 P.2d 820 (Colo. 1975). This can include new evidence as well as facts known at the time the original sentence was pronounced. Id.,; see also People v. Bridges, 762 P.2d 161 (Colo. 1983) (court may consider the defendant's progress while in prison when exercising its decision to reduce a sentence); see also Mamula v. People, 847 P.2d 1135 (Colo. 1983) (court may consider developments subsequent to filing of motion for reconsideration which are favorable to the granting of the motion).
After careful consideration, the Court finds that the sentence originally imposed is appropriate and sufficient cause to reduce the sentence has not been established. Accordingly, Defendant's Motion for Reconsideration is DENIED.
Done this 20th day of January, 2010
BY THE COURT:
Robert L. McGahey, Jr.
District Judge
Cc: Bryan's attorney to send to Defendant; District Attorney
DENVER, COLORADO
Court Address: 1437 Bannock Street, Denver, Colorado 80202
THE PEOPLE OF THE STATE OF COLORADO
Plaintiff
v.
BRYAN DAY
Defendant
Case Number: 08CR5841
Ctrm: 13
THIS MATTER comes before the Court on Defendant's Motion for Reconsideration of Sentence to 35 (B), filed November 25, 2009. The Court has reviewed the motion, as well as the Court's file and applicable authorities. Upon consideration thereof, the Court enters the following findings and order:
On July 31, 2009 Mr. Day was sentenced to the Department of Corrections for a period of ten years for Arson (F3) and two years for Stalking (F5)--the Court ordered the sentences to run concurrently. Mr. Day requests that either: 1) his sentence for Arson be reduced from ten years to four years; or 2) the Court craft a hybrid sentence between his two charges in order to reduce Mr. Day's prison sentence.
I have reviewed and considered Mellani Day (Defendant's mother) affidavit and the concerns she has expressed about Mr. Day's emotional history. I have also reviewed Dr. Friedman's assessment and evaluation of Mr. Day.
In ruling on a motion for sentence reconsideration, the trial court must consider all relevant and material factors which may affect the decision on whether to reduce the original sentence. See Mikkleson v. People, 618 P.2d 1101, 1102 (Colo. 1980); see also People v. Smith, 536 P.2d 820 (Colo. 1975). This can include new evidence as well as facts known at the time the original sentence was pronounced. Id.,; see also People v. Bridges, 762 P.2d 161 (Colo. 1983) (court may consider the defendant's progress while in prison when exercising its decision to reduce a sentence); see also Mamula v. People, 847 P.2d 1135 (Colo. 1983) (court may consider developments subsequent to filing of motion for reconsideration which are favorable to the granting of the motion).
After careful consideration, the Court finds that the sentence originally imposed is appropriate and sufficient cause to reduce the sentence has not been established. Accordingly, Defendant's Motion for Reconsideration is DENIED.
Done this 20th day of January, 2010
BY THE COURT:
Robert L. McGahey, Jr.
District Judge
Cc: Bryan's attorney to send to Defendant; District Attorney
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