Jerry Kopel

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 2008 election?

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 out.

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 2009 legislature.

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 affairs ..."

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 "business entity".)

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 entity's conduct".

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.)

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