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
Subscribe to:
Post Comments (Atom)
No comments:
Post a Comment