|Can the Democrats
roll a "six"?
October 4, 2008.
By Jerry Kopel
Can the Democrats roll a "six" in the crap-shoot called the November
Democrats hope to end up for the fourth time in one hundred and
thirty-two years in control of the state House and Senate for six
consecutive years. Will they succeed?
The last time Colorado Democrats held the state House and Senate for
more than four consecutive years was nearly fifty years ago, 1957
through 1962. Before that it was 1933 through 1938 (major depression
years), and before that it was 1909 through 1914.
A lot will depend on how "insecure" the Republican party acts. A recent
Wall Street Journal article discussed the situation in Michigan,
where a Republican party boss on a web-site boasted, according to the
Journal "we will have a list of foreclosed homes and will make sure
people aren't voting from those addresses."
Republican challenges in the 1964 elections assured my first legislative
election defeating incumbent John Moran, Jr. Rep. Moran had run a good
race, going door to door in both Republican and Democratic precincts,
something I did not do.
This was the Goldwater-Johnson presidential year, and Denver had
constituted one district. Moran was serving as a replacement, filling a
Republican vacancy. In 1964, Denver was divided into a number of
districts and Moran was in Park Hill.
The new district, Park Hill from Colfax north through the residential
areas, had 13 Republican and 13 Democratic precincts. In the
northernmost precincts, there were majority black residents.
The Rocky Mountain News was a daily tabloid, but the Denver
Post was an afternoon full-size paper. Republican challengers held
letters that had been mailed to voters in the majority black precincts.
The Republicans were at the voting sites, challenging voters to whom
letters were sent that had been returned to sender.
The Post used the story in the front-page top half of page one
with a picture. The result? I went to the northernmost precincts to find
Black voters were lined up single file, so large in number some were
standing outside the buildings. They were silent, with grim faces,
obviously willing to wait in line as long as it took. The Democrat
turnout in those precincts was quite large and assured my election.
Total vote in the legislative district was 5,984 to 5,377, which was 53
to 47 percent in my favor.
Is Michigan an indication of heavy challenges? Are recent fraud charges
in El Paso County a symptom of what is still to come?
In the swing state of Colorado, where the presidency may be decided, my
guess is the Democrats will on election day flood television, blogs and
radio with news of local challenges by Republicans and produce a
backfire to the advantage of Democrats.
* * *
Attention criminal defense attorneys. Amendment 53 was deleted from the
November ballot under a business-labor deal to get-together to stop the
"right-to-work" initiative. But you should think about a bill for the
Amendment 53 was being sold as closing a loophole which allowed humans
to hide behind a corporate shield for statutory criminal violations.
But not everyone is within the loophole. A business entity under CRS
18-1-606 presently includes "a sole proprietorship or other association
or group of individuals doing business in the state".
Such individuals, according to the Legislative Council summary "may
(presently under subsection 1-a) be prosecuted for illegal conduct
performed on behalf of a business and, in some cases, for failure to
perform a legal duty".
Criminal penalties may also presently be sought for "conduct ...
knowingly tolerated by the ... individual authorized to manage the
Amendment 53 added new language CRS 18-1-606 (1.5) which provided:
"(1) conduct constituting the offense
consists of an omission to discharge a specific duty or affirmative
performance imposed on the business entity by law and
(2) the executive official knew of the specific duty to be performed
and knew that the business entity failed to perform that duty."
(This could be true even though the "executive official" is the
The new language sounded pretty much like the
old language that already applies to individuals as a business entity.
So why should defense attorneys try to pass it? Because Amendment 53
provided protection not presently in law, from criminal prosecution if
the alleged criminal turns informant.
A new subsection (4) stated:
It shall be a complete affirmative defense
for any executive official charged under subsection (1.5) of this
section that, prior to being charged, he or she reported to the
office of the attorney general all facts of which he or she was
aware concerning the business entity's conduct that met the criteria
set forth in subsection 1-a of this section."
This could be, as I read it, an offense (under
present law or under the proposed law) actually committed by the
executive official, such as the willful failure under CRS 39-21-118 to
pay state income taxes or file a state tax return.
Suppose the tax evader believes he or she is about to be charged. Prior
to that happening, he or she goes to the office of attorney general and
"reports all facts of which he or she was aware concerning the business
Assuming the defense lawyer can persuade the judge that the offense
rightfully belonged under subsection (4) he or she had a complete
affirmative defense to the charge. "Confession and absolution".
(Jerry Kopel served 22 years in the Colorado House.)