Emily Cohen Boulder Attorney Immigration Theft Appeal Conviction Opening Brief

COURT OF APPEALS,
STATE OF COLORADO
Ralph L. Carr Judicial Center

2 East 14th Avenue
Denver, Colorado 80203
Appeal, Boulder County District Court

Honorable Patrick Butler & Andrew Hartman,
Judges
Case Number 2014CR437
Plaintiff-Appellee
THE PEOPLE OF THE
STATE OF COLORADO
v.
Defendant-Appellant
EMILY ELIZABETH COHEN
Douglas K. Wilson, Case Number: 2015CA982

Colorado State Public Defender
MARK EVANS
1300 Broadway, Suite 300
Phone: (303) 764-1400

Fax: (303) 764-1479
Email: PDApp.Service@coloradodefenders.us
Atty. Reg. #40156
OPENING BRIEF
CERTIFICATE OF COMPLIANCE
I hereby certify that this brief complies with all requirements of C.A.R. 28 and C.A.R.
32, including all formatting requirements set forth in these rules, other than the 9,500
word limit. Counsel is simultaneously filing a Request for Leave to File Opening Brief
in Excess of 9,500 Words. Specifically, the undersigned certifies that:
The brief does not comply with C.A.R. 28(g) because:
It contains 12,470 words.
This brief complies with the standard of review requirement set forth in C.A.R.
28(a)(7)(A).
For each issue raised by the Defendant-Appellant, the brief contains under a
separate heading before the discussion of the issue, a concise statement: (1) of
the applicable standard of appellate review with citation to authority; and (2)
whether the issue was preserved, and, if preserved, the precise location in the
record where the issue was raised and where the court ruled, not to an entire
document.
I acknowledge that my brief may be stricken if it fails to comply with any of the
requirements of C.A.R. 28 and C.A.R. 32.
_________________________________
i
TABLE OF CONTENTS
Page
INTRODUCTION..................................................................................................... 1
STATEMENT OF THE ISSUES PRESENTED ................................................. 1
STATEMENT OF THE CASE ............................................................................... 2
STATEMENT OF THE FACTS ............................................................................. 4
SUMMARY OF THE ARGUMENT ...................................................................... 6
ARGUMENT
I. The district court violated the Confrontation Clause and
numerous evidentiary rules by admitting three Office of Attorney
Regulation Counsel complaints based on allegations by non-testifying
witnesses ....................................................................................................................... 8
A. Standard of review................................................................................ 8
B. Applicable facts................................................................................... 10
C. Applicable law and application ......................................................... 15
i. Admitting the complaints violated the hearsay rules
and the Confrontation Clause ............................................... 15
ii. Admitting professional disciplinary complaints was
error .......................................................................................... 19
iii. The complaints provided inadmissible evidence of
alleged lying.............................................................................. 22
iv. The complaints were inadmissible under CRE 404(b)
and as res gestae ...................................................................... 24
v. Admitting the complaints requires reversal ......................... 29
II. The district court erred by including within the final jury
instructions a recitation of attorneys’ obligations under the Rules of
Professional Conduct ................................................................................................ 31
A. Standard of review.............................................................................. 31
ii
C. Applicable law ..................................................................................... 33
D. Application .......................................................................................... 35
III. The district court erred by allowing another attorney to testify
regarding every time she believed Ms. Cohen had lied or engaged in
questionable behavior in the past ............................................................................ 39
C. Applicable law ..................................................................................... 41
D. Application .......................................................................................... 41
IV. The district court deprived Ms. Cohen of her rights to counsel
and presence by responding to three questions from deliberating jurors
without consulting her or her attorney ................................................................... 43
C. Applicable law ..................................................................................... 45
i. Questions from deliberating juries ....................................... 45
ii. The right to counsel................................................................ 46
iii. The right to presence.............................................................. 47
D. Application .......................................................................................... 47
V. The district court deprived Ms. Cohen of her rights to counsel
and presence by delivering a modified Allen instruction in her absence
and without consulting her or her attorney............................................................ 50
C. Applicable law ..................................................................................... 51
i. Procedures for potentially deadlocked juries....................... 51
ii. The right to presence and counsel ........................................ 52
D. Application .......................................................................................... 53
iii
VI. The cumulative impact of the errors in this case requires reversal .......... 55
B. Applicable law and application ......................................................... 55
CONCLUSION ........................................................................................................ 56
CERTIFICATE OF SERVICE .............................................................................. 57
TABLE OF CASES
Auman v. People, 109 P.3d 647 (Colo. 2005) ................................................... 31,37
Bernal v. People, 44 P.3d 184 (Colo. 2002).............................................................. 9
Blecha v. People, 962 P.2d 931 (Colo. 1998) .................................................9,15,17
Crawford v. Washington, 541 U.S. 36 (2004) ............................................. 16,18,21
Domingo-Gomez v. People, 125 P.3d 1043 (Colo. 2005) ................... 10,28,30,39
Harper v. People, 817 P.2d 77 (Colo. 1991) .......................................................... 24
In re Fisher, 202 P.3d 1186 (Colo. 2009) .......................................................... 17,20
In re Winship, 397 U.S. 358 (1970) ......................................................................... 49
Irvin v. Dowd, 366 U.S. 717 (1961) .......................................................................... 9
Kaufman v. People, 202 P.3d 542 (Colo. 2009) .................................... 24,28,33,37
Kentucky v. Stincer, 482 U.S. 730 (1987) ............................................................... 47
Key v. People, 865 P.2d 822 (Colo. 1994)......................................................... 43,46
Kilpatrick v. People, 64 Colo. 209, 170 P. 956 (1917) ..................................... 19,22
Larson v. Tansy, 911 F.2d 392 (10th Cir. 1990) .................................................... 52
Leonardo v. People, 728 P.2d 1252 (Colo. 1986) ....................................... 45-49,54

iv
Liggett v. People, 135 P.3d 725 (Colo. 2006).............................................. 22,23,42
Michelson v. United States, 335 U.S. 469 (1948)................................................... 40
Oaks v. People, 150 Colo. 64, 371 P.2d 443 (1962) .............................................. 55
People v. Alexander, 663 P.2d 1024 (Colo. 1983) ............................................ 33,36
People v. Ambrose, 907 P.2d 613 (Colo. App. 1994) ...................................... 35,36
People v. Barnum, 23 P.3d 1237 (Colo. App. 2001) ............................................. 15
People v. Ellsworth, 15 P.3d 1111 (Colo. App. 2000) ..................................... 33,37
People v. Goldsberry, 181 Colo. 406, 509 P.2d 801 (1973) ................................. 24
People v. Guzman-Rincon, 369 P.3d 752 (Colo. App. 2015) .... 43,44,47,48,53,54
People v. Harris, 2015 COA 53 ............................................................................... 39
People v. Lewis, 676 P.2d 682 (Colo. 1984)........................................... 51,52,54,55
People v. Lopez, 129 P.3d 1061 (Colo. App. 2005) .............................................. 22
People v. Novitskiy, 81 P.3d 1070 (Colo. App. 2003) .................................... 24-26
People v. Payne, 361 P.3d 1040 (Colo. App. 2014) ........................... 3,47,48,52-55
People v. Pratt, 759 P.2d 676 (Colo. 1988) ....................................................... 20,21
People v. Richardson, 184 P.3d 755 (Colo. 2008) ................................................. 52
People v. Rollins, 892 P.2d 866 (Colo. 1995).................................................... 28,29
People v. Silva, 987 P.2d 909 (Colo. App. 1999) .............................................. 33,37
People v. Spoto, 795 P.2d 1314 (Colo. 1990) .................................................. 24-26
v
People v. Stein, 156 Cal. Rptr. 299 (Cal. Ct. App. 1979) ........................... 34,36-38
People v. Veren, 140 P.3d 131 (Colo. App. 2005) ............................................. 9,39
People v. Vigil, 127 P.3d 916 (Colo. 2006)........................................................ 16,18
Pueblo Bank & Trust Co. v. McMartin,

31 Colo. App. 546, 506 P.2d 759 (1972)........................................................... 34-36
Scott v. People, 390 P.3d 832 (Colo. 2017) ............................................................ 24
State v. Mahoney, 908 A.2d 162 (N.J. 2006) ............................................... 33-36,38
Tincombe v. Colorado Construction & Supply Corp,

681 P.2d 533 (Colo. App. 1984) .............................................................................. 17
United States v. Bartek,

No. 1:07-CR-26-SPM, 2008 WL 2949437, at *2 (N.D. Fla. July 29, 2008) ........ 18
United States v. Cunningham, 679 F.3d 355 (6th Cir. 2012) .......................... 18,21
United States v. Fontanez, 878 F.2d 33 (2d Cir. 1989) ......................................... 52
United States v. Smith, 31 F.3d 469 (7th Cir. 1994).............................................. 47
United States v. Weichert, 783 F.2d 23 (2d Cir. 1986) ......................................... 20
United States v. Whitehead, 618 F.2d 523 (4th Cir. 1980) .............................. 20,21
Venalonzo v. People, 388 P.3d 868 (Colo. 2017) ....................................... 22,23,42
Wade v. United States, 441 F.2d 1046 (D.C. Cir. 1971) .................................. 52,53
Yusem v. People, 210 P.3d 458 (Colo. 2009)......................................................... 27
vi
TABLE OF STATUTES AND RULES
Colorado Revised Statutes
Section 18-8-502............................................................................................. 23
Colorado Rules of Civil Procedure
Rule 251.6 ....................................................................................................... 17
Rule 251.9-251.12........................................................................................... 20
Rule 251.10 ..................................................................................................... 17
Rule 251.18 ..................................................................................... 17,20,22,49
Rule 252.12 ..................................................................................................... 49
Colorado Rules of Criminal Procedure
Rule 51............................................................................................................. 43
Colorado Rules of Evidence
Rule 401........................................................................................................... 25
Rule 402........................................................................................................... 26
Rule 403................................................................................................ 25,27,29
Rule 404...................................................................................7,10,24-26,29,41
Rule 608................................................................................................ 22,23,42
Rule 801........................................................................................................... 15
Rule 802........................................................................................................... 17
vii
Colorado Rules of Professional Conduct
Preamble ¶20 ........................................................................ 19,21,26,36,37,50
CONSTITUTIONAL AUTHORITIES
United States Constitution
Amendment VI ......................................................................................9,46,47
Amendment XIV ........................................................................................ 9,47
Colorado Constitution
Article II, Section 16 ..............................................................................9,46,47
Article II, Section 23 ........................................................................................ 9
OTHER AUTHORITIES
Admissibility in Criminal Prosecution of Adjudication or

Judgment in Civil Case or Procedure, 87 A.L.R. 1258 ......................................... 19
viii
INTRODUCTION
When the State tries an attorney for a crime, that crime is defined by the
Colorado Revised Statutes, not the Rules of Professional Conduct. The central
question in this appeal is to what extent attorney ethical rules and alleged violations
can factor into the evidence and law presented to jurors who must decide whether an
attorney committed a criminal offense. Ms. Cohen had a right to be tried for the
charges against her without being subject to a referendum on her ethics and success as
a lawyer. She also had the same rights to be present in court and represented by
counsel that all defendants are guaranteed. The district court deprived her of those
rights, and this Court should reverse her convictions.
STATEMENT OF THE ISSUES PRESENTED
I. Whether the district court violated the Confrontation Clause and numerous
evidentiary rules by admitting three Office of Attorney Regulation Counsel
complaints based on allegations by non-testifying witnesses.
II. Whether the district court erred by including within the final jury instructions a
recitation of attorneys’ obligations under the Rules of Professional Conduct.
III. Whether the district court erred by allowing another attorney to testify regarding
every time she believed Ms. Cohen had lied or acted questionably in the past.
1
IV. Whether the district court deprived Ms. Cohen of her rights to counsel and
presence by responding to three questions from deliberating jurors without consulting
her or her attorney.
V. Whether the district court deprived Ms. Cohen of her rights to counsel and
presence by delivering a modified Allen instruction in her absence and without
consulting her or her attorney.
VI. Whether the cumulative impact of these errors requires reversal.
STATEMENT OF THE CASE
Ms. Cohen was admitted to the bar in 2010. (R. Tr. 12/10/14, p.1903) The
State alleged that during her brief practice she took money to handle immigration
matters, but failed to do so.
Prosecutors sought a pretrial ruling on the admissibility of “limited” evidence
concerning investigations by the Office of Attorney Regulation Counsel (OARC) into
Ms. Cohen’s practice. (R. CF, pp.296-315) Their motion stated they would not
attempt to admit individual OARC complaints, and was granted. (Id. at 300, 303, 369-
70)
The State sought and obtained dismissal of multiple counts, and twenty-one
theft counts proceeded to an eleven-day trial. (R. CF, pp.53-56, 65-73, 88-92, 98-99,
391-401, 486-87) The final jury instructions included a recitation of attorneys’
2
obligations under the Rules of Professional Conduct (RPC). (R. Supr. p.224) Jurors
asked four questions during deliberations. Questions two and three were about the
relationship between ethical rules and criminal liability; question four prompted the
district court to deliver a modified Allen instruction.1 (Id. at 209-11) The court did
not consult either Ms. Cohen or defense counsel regarding questions two through
four, and neither was present in court for the instruction.2 (Supp. R., 05/15/17
Order)
The jury acquitted on seven counts, hung on one, and returned verdicts for less
than the charged amount on six. (R. Supr. pp.235-76) The thirteen convictions range
from class two misdemeanors to class four felonies. (R. CF, pp.694-96) The district
court sentenced Ms. Cohen to six years of incarceration followed by ten years of
probation. (Id.)
1
A “modified Allen instruction” is an instruction trial courts may give juries regarding
a possible deadlock. People v. Payne, 361 P.3d 1040, 1041 n.1 (Colo. App. 2014).
2
Undersigned counsel submitted to the district court a “Motion to Settle the Record,”
and attached “Defendant’s Statement of Proceedings.” Both took the position that
the record indicates no consultation regarding questions two through four occurred,
and that neither Ms. Cohen nor defense counsel was in the courtroom when the
district court delivered the modified Allen instruction. The Motion requested a
hearing only if that position was disputed. The State’s Response did not dispute the
substance of that position. The judge who presided at trial declined to grant a
hearing, issuing an order stating: “The record speaks for itself.” Both the State and
the court have had an opportunity to dispute Ms. Cohen’s Statement of Proceedings;
neither has done so.
3
STATEMENT OF THE FACTS
The prosecution’s theory was that Ms. Cohen took money from clients but did
not earn it. Ms. Cohen defended on grounds that she performed legal services for any
funds she received. (R. Supr., p.232)
The State called two broad categories of witnesses. Individuals in the first were
associated with the twenty-one charges. A representative sample follows.
One witness testified in connection with trial count six, which alleged theft of
between $1,000 and $20,000. (R. CF, p.397; R. Tr. 12/08/14, pp.1330-73) The
witness said she paid Ms. Cohen to help gain legal residency for her husband. (R. Tr.
12/08/14, p.1332) She initially believed Ms. Cohen submitted applications to the
government to accomplish this, but later learned they were not filed. (Id. at 1339-45)
She claimed she was unable to obtain her client file. (Id. at 1342-43) Ms. Cohen
testified that her contract with that client involved an hourly fee, and that after
preparing the necessary paperwork she learned the husband had previously been
deported. (R. Tr. 12/10/14, pp.1957, 1959-60) Submitting the applications could
thus subject him to prosecution. (Id. at 1961) The jury convicted. (R. Supr., p.245)
A husband and wife testified regarding trial count four, which alleged theft of
between $2,000 and $5,000. (R. CF, p.397; R. Tr. 12/08/14, pp.1374-1429) They
said they paid Ms. Cohen to obtain citizenship for the wife, and signed a completed
4
citizenship application, but the application never made it to authorities. (R. Tr.
12/08/14, pp.1374-76, 1393-95, 1413) Ms. Cohen prepared an identical application,
which they went to her office to sign. (Id. at 1395-97, 1421) They refused to sign it
because she was not there. (Id. at 1396-97, 1422-23) The couple set a subsequent
meeting with Ms. Cohen, but did not attend it. (Id. at 1408) Ms. Cohen’s testimony
explained that she earned her fee when she prepared the applications for signature.
(R. Tr. 12/10/14, pp.2029-33) The jury acquitted. (R. Supr., p.241)
The individuals in the second category of witnesses were associated with
attorney regulation. OARC attorney Katrin Rothgery and immigration attorney
Nancy Elkind testified, as explained in section I(B). An individual appointed as
OARC inventory counsel testified she was able to obtain only twelve of Ms. Cohen’s
client files during OARC’s investigation. (R. Tr. 12/04/14, pp.842-43, 855-56)
Immigration attorney Christina Fiflis testified to attorney trust account procedures
and—over objection—to “red flags” in her personal interactions with Ms. Cohen. (R.
Tr. 12/09/14, pp.1623-35, 1672-73, 1678-83) An investigator who had examined Ms.
Cohen’s bank records testified she had multiple accounts, rarely deposited client funds
in her COLTAF account, deposited some client funds into personal accounts, and
showed little difference in spending patterns between personal and business accounts.
(Id. at 1579-98)
5
Ms. Cohen presented evidence that during her brief practice she consulted with
other attorneys, and hired an immigration attorney as a consultant to meet with her on
multiple occasions, in an attempt to provide good service to her clients. (R. Tr.
12/09/14, pp.1644-46; 1704-07; 1723-24) She testified extensively, explaining the
work she performed for clients associated with all twenty-one counts. (R. Tr.
12/10/14, pp.1915-2019, 2029-33) Her testimony explained why she had earned the
fees she kept. (Id. at 2019-29, 2033-34)
During cross-examination the State admitted through Ms. Cohen—over
objection—complete copies of three complaints filed against her by OARC with the
Presiding Disciplinary Judge. (R. Tr. 12/11/14, pp.2068, 2075-76, 2085) She was the
final witness.
SUMMARY OF THE ARGUMENT
This should have been a trial about whether Ms. Cohen committed theft.
Instead, it involved copious evidence and law concerning the RPC and Ms. Cohen’s
alleged breaches. The district court reversibly erred in five ways.
First, the court admitted three complaints filed by OARC against Ms. Cohen.
All were based on out-of-court statements by non-testifying witnesses, and conveyed
allegations that Ms. Cohen had “converted” client funds, engaged in ethical
wrongdoing, and lied on numerous specific occasions. Admitting the complaints
6
violated the Confrontation Clause and hearsay rules because they contained
testimonial statements admitted for their truth. Admitting them was also erroneous
because legal pleadings in professional disciplinary proceedings cannot be used as
proof in a criminal case. They also violated the prohibition on evidence regarding
witness truthfulness on particular occasions. Additionally, the complaints were
inadmissible under CRE 404(b) and as res gestae because they were irrelevant to any
material issue and carried tremendous unfair prejudice.
Second, the court placed in the jury instructions a recitation of attorney ethical
obligations under the RPC. By including those rules as a statement of law jurors were
required to apply, the instructions conflated them with the rules necessary for the
imputation of criminal liability. They impermissibly allowed jurors to find that if Ms.
Cohen committed an ethics violation, she was guilty of theft.
Third, the court allowed an attorney to testify regarding every lie she believed
Ms. Cohen had ever told, and every instance of questionable conduct in which she
believed Ms. Cohen had ever engaged. This too violated the prohibition on evidence
regarding witness truthfulness on particular occasions, and was simply a character
assault prohibited under CRE 404(b).
Fourth, the court did not consult Ms. Cohen or her attorney before answering
three jury questions during deliberations. This violated her constitutional rights to be
7
represented by counsel and to be present at trial. Several questions concerned the
relationship between ethical rules, alleged violations, and the elements of theft. Ms.
Cohen was deprived of any ability to influence the court’s response, and the response
it provided was erroneous.
Finally, the court did not obtain Ms. Cohen’s or her attorney’s input or
presence before delivering a modified Allen instruction to deliberating jurors. This
too violated her rights to counsel and presence. That violation deprived Ms. Cohen
of the ability to influence jurors at a key phase of trial, and to argue the district court
should have applied existing guidance concerning potentially deadlocked juries.
Those five errors, viewed either individually or cumulatively, deprived Ms.
Cohen of a fair trial on the charges against her.
ARGUMENT
I. The district court violated the Confrontation Clause and numerous

evidentiary rules by admitting three Office of Attorney Regulation Counsel
complaints based on allegations by non-testifying witnesses.
A. Standard of review.
Ms. Cohen preserved this issue by pretrial motion and contemporaneous
objection; the district court overruled. (R. CF, pp.494-95; R. Tr. 12/01/15, pp.91-92,
97-98; R. Tr. 12/11/14, pp.2067-68, 2075-76, 2085)
8
“Appellate review of a possible Confrontation Clause violation is de novo.”
Bernal v. People, 44 P.3d 184, 198 (Colo. 2002). When a violation has occurred, this
Court must reverse the subsequent conviction unless the State proves the error was
harmless beyond a reasonable doubt. Id. at 200. When applying that standard, this
Court asks “not whether, in a trial that occurred without the error, a guilty verdict
would surely have been rendered, but whether the guilty verdict actually rendered in
this trial was surely unattributable to the error.” Blecha v. People, 962 P.2d 931, 942
(Colo. 1998) (quotation omitted).
As to the non-confrontation components of this issue, trial courts have
discretion over evidentiary rulings. See, e.g., People v. Veren, 140 P.3d 131, 136 (Colo.
App. 2005). When a trial court has abused its discretion, this Court typically applies
the harmless error standard of review. Under that standard, reversal is required unless
the error did not “substantially influence the verdict or impair the fairness of the
trial[.]” Id. at 140.
Ms. Cohen nevertheless urges this Court to apply the constitutional harmless
error standard to all components of this issue. The state and federal Constitutions
guarantee a trial by a fair and impartial jury. U.S. Const. amends. VI, XIV; Colo.
Const. art. II, §§ 16, 23; see Irvin v. Dowd, 366 U.S. 717, 722 (1961). This includes the
right to have jurors decide guilt or innocence based solely on evidence properly
9
introduced at trial. Domingo-Gomez v. People, 125 P.3d 1043, 1048 (Colo. 2005).
B. Applicable facts.
OARC has filed three complaints against Ms. Cohen with the Presiding
Disciplinary Judge. (R. P. Exs. 101-103, pp.466, 474, 513) Before trial, the State gave
notice of its intent to introduce “limited” evidence regarding the OARC proceedings.
(R. CF, p.296) It sought to admit evidence that Ms. Cohen was on notice she was
being investigated by OARC, and that she allegedly failed to comply with ethical
obligations concerning fees and handling client funds. (Id. at 300) The State’s motion
indicated it would not admit the actual complaints:
- “The People do not intend to adduce at trial evidence relating to
individual complainants in the OARC case who are not victims in the
criminal case.” (Id.)
- “The People are not asking for all the allegations in the disciplinary case
to be admitted at trial … identities of complainants other than those in
the current criminal proceedings will not be mentioned.” (Id. at 303)
The district court issued a pretrial order finding the proposed OARC evidence
was admissible as res gestae. (Id. at 369) It also granted Ms. Cohen’s request for
notice of any evidence the State intended to admit through CRE 404(b). (Id. at 335-
10
38) Additionally, it ordered “evidence of the dismissed Counts shall not be admissible
in this trial.” (Id. at 487) A different judge presided at trial.
At trial, OARC attorney Ms. Rothgery testified over Ms. Cohen’s relevance
objection. (R. Tr. 12/03/14, p.708) Her testimony indicated OARC investigated Ms.
Cohen based on complaints from her clients. (Id. at 721-727) The State admitted
through her two letters from May 2012, sent by OARC to Ms. Cohen, indicating she
was being investigated. (Id. at 721-723) The letters contain allegations similar to
those in this case: she took money to perform services but had not done so. (R. P.
Exs. 23-24, pp.73-76)
Ms. Rothgery testified that based on the allegations in the letters, as well as
other grievances, OARC filed two public complaints with the Presiding Disciplinary
Judge. (R. Tr. 12/03/14, p.731) Both were still pending. (Id. at 772) Regarding one,
however, the Presiding Disciplinary Judge had “already found Ms. Cohen responsible
for having violated the [RPC],” so the only remaining issue was the discipline to be
imposed.3 (Id. at 772, 777-78)
Immigration attorney Ms. Elkind testified as an expert over Ms. Cohen’s
relevance objection. (R. Tr. 12/02/14, p.498) She explained that “if a lawyer takes a
3
Although the district court prohibited Ms. Cohen from presenting this information
to the jury, her attorney represented that a default judgment was entered after she had
requested a stay of time on account of experiencing mental illness. (R. Tr. 12/03/14,
pp.782-84)
11
fee from a client and fails to put it into their trust account, but instead just takes it and
spends it himself of herself,” that is “conversion.” (Id. at 511-12) “Conversion is the
term we use in law school for theft.” (Id.)
The actual OARC complaints were not admitted until the State cross-examined
the final defense witness: Ms. Cohen. When it moved to admit the first complaint,
she objected on grounds of relevance, hearsay, and the inability to cross-examine. (R.
Tr. 12/11/14, p.2068) The district court responded: “For previous court rulings, it’s
admitted.” (Id.) Ms. Cohen objected to the second complaint on grounds that it was
404(b) evidence not addressed at the motions hearing, highly prejudicial, violated the
confrontation and due process rights, and included dismissed counts. (Id. at 2075-76)
The State represented it was admissible “pursuant to the Court’s previous rulings …”
(Id.) The district court responded: “So I will overrule the objection, per previous
rulings, because it does put the Defendant on notice of her obligations, and that
definitely impacts the intent element in the pending complaint.” (Id. at 2076) When
the State moved to admit the third complaint, Ms. Cohen objected for the same
reasons and was overruled. (Id. at 2085) All three complaints went to the jury.
The first complaint states a number of allegations that occurred before Ms.
Cohen was licensed, including:
12
- She failed to properly disclose her maiden name on her bar
application, and testified falsely in a deposition concerning her
maiden name.
- She failed to disclose prior employment on her bar application.
- She engaged in the unauthorized practice of law.
- She testified falsely in a civil suit.
- She failed to disclose past due debts on her bar application.
(R. P. Ex. 101, pp.466-473)
In rebuttal closing, the State argued the first complaint was relevant to “the
importance of telling the truth …” (R. Tr. 12/11/14, p.2196) It explained:
[OARC] found that the Defendant committed perjury in a previous

action in front of Judge Gowchinski [sic] – and if you have any
doubt about the findings, take a look. They also found that in her
deposition. She wouldn’t be truthful about what her name
actually was, and that she had practiced law for several years
without having passed the bar, none of which was disclosed on
her application.
(Id. at 2196-97 (emphasis added))
The second complaint contains factual allegations concerning seven different
client matters, each of which is followed by allegations that Ms. Cohen violated
numerous ethical rules. (R. P. Ex. 102, pp.474-512) The first client matter is
representative. It alleges Ms. Cohen took over $8,000 from two individuals to work
13
on immigration issues, but failed to place the money in a COLTAF account and never
completed substantial work or filed the necessary forms. (Id. at 475-79) Ten claims
of ethical violations follow, the last of which alleges she “violated Colo. RPC 8.4(c) by
knowingly converting the $8,250.00 in attorneys’ fees paid to her when she exercised
unauthorized dominion and control over those funds prior to earning them.” (Id. at
482)
Each of the other six client matters in the second complaint has an associated
claim of Ms. Cohen “knowingly converting” funds. (Id. at 486, 490, 493, 500, 506,
511) Fifty-eight total ethics violations are alleged, including that she either lied to her
clients or lied to OARC during its investigation. In rebuttal closing, the State
explained that the allegations in the second OARC complaint are substantively
equivalent to the allegations in this case. (R. Tr. 12/11/14, pp.2197-98)
The third OARC complaint is similar to the second, containing three sets of
factual allegations regarding twenty ethical violations. (R. P. Ex. 103, pp.513-527)
The factual allegations relate to dismissed counts thirty-two and thirty-five, and trial
count twelve. (Id. at 514, 519, 522; R. CF, p.72, 486-87; R. Supr. p.257) The State’s
rebuttal closing indicated the three complaints substantiated the criminal charges:
[T]here’s some sort of implication throughout the case that

somehow attorney regulation overreacted to all this nonsense.
You read those complaints and tell me whether or not you think
attorney regulation overreacted. But after you have got those
14
three complaints filed for this kind of behavior, you can
understand why theft charges were filed and you are being asked
to consider them.
(R. Tr. 12/11/14, p.2202)
Jurors illustrated their interest in the OARC evidence, asking multiple questions
of witnesses and twice asking during deliberation how they could use it when
evaluating whether the elements of theft were proved. (R. Supr. pp.50, 55, 58, 180,
185-86, 206, 209-10)
C. Applicable law and application.
i. Admitting the complaints violated the hearsay rules and the Confrontation Clause.
Hearsay is an out-of-court statement offered into evidence to prove the truth
of the matter asserted. CRE 801(c). Hearsay statements are presumptively unreliable
because the declarant is not present to explain the statement in context and is not
subject to cross-examination. Blecha, 962 P.2d at 937. “Due to this presumptive
unreliability, hearsay statements are generally not admissible as evidence at trial.” Id.
The proponent of a statement bears the burden of proving it is not inadmissible
hearsay. People v. Barnum, 23 P.3d 1237, 1239 (Colo. App. 2001).
The Confrontation Clause prohibits admitting testimonial hearsay unless the
declarant is unavailable and the defendant has had a prior opportunity for cross-
examination. Crawford v. Washington, 541 U.S. 36, 68 (2004). Out-of-court statements
15
are testimonial if they “were made under circumstances which would lead an objective
witness reasonably to believe that the statement would be available for use at a later
trial.” Id. at 51-52. Stated alternately, whether a statement is testimonial depends on
whether an objective person in the declarant’s position “would believe her statements
would lead to punishment of defendant.” People v. Vigil, 127 P.3d 916, 925 (Colo.
2006) (quotation omitted).
All three of the OARC complaints were double-hearsay. They were written
out-of-court by Ms. Rothgery, and their substance consisted of out-of-court
information provided to OARC by other individuals. The first set of factual
allegations in the second complaint is representative. Someone told someone at
OARC they paid Ms. Cohen to handle immigration matters, and she did not do so.
(R. P. Ex. 102, pp.475-79) Ms. Rothgery then wrote that information in a complaint.
The complaint was then admitted through Ms. Cohen.
The complaints were admitted and used for their truth. Although the
prosecution did not provide a basis for admitting the first, it argued that it illustrated
Ms. Cohen “committed perjury” and was untruthful. (R. Tr. 12/11/14, pp.2068,
2196-97) Regarding the second complaint, and by extension the third, the State
argued they showed “the same kind of client handling issues we have in this case …”
(Id. at 2075-76, 2197-98) The State’s asserted purpose for admitting the complaints
16
thus depended on them being true. Because the complaints were hearsay, they were
presumptively unreliable and inadmissible. CRE 802; Blecha, 962 P.2d at 937.
No exception to the hearsay bar was argued, and none applied. In Tincombe v.
Colorado Construction & Supply Corp., this Court held consumer complaints filed with
the Attorney General’s Consumer Fraud Office, as well as a criminal complaint filed
against the defendants, were not admissible under either the business record or public
records exceptions. 681 P.2d 533, 534 (Colo. App. 1984). Complaints filed with and
by OARC are directly analogous.
Even if an exception to the hearsay bar applied, which it did not, the
complaints were inadmissible under the Confrontation Clause. OARC is an
investigative body with subpoena power. C.R.C.P. 251.10(b)(2). When its
investigation finds a formal complaint is warranted, a trial can result. C.R.C.P.
251.18(f)(4)(D) (referring to disciplinary proceedings as a “trial”). Following trial, the
subject attorney can be punished through economically devastating disciplinary
measures. C.R.C.P. 251.6; In re Fisher, 202 P.3d 1186, 1199 (Colo. 2009) (recognizing
attorney disciplinary proceedings are “quasi-criminal”).
By the nature of what OARC does, an objective witness providing statements
to OARC would reasonably believe that they “would be available for use at a later
trial[,]” or would “lead to punishment” of the person against whom their complaint
17
was lodged. See Crawford, 541 U.S. at 51-52; Vigil, 127 P.3d at 925. The complaints
were thus testimonial. See United States v. Cunningham, 679 F.3d 355, 383 (6th Cir.
2012) (assuming without deciding the admission of factual findings from disbarment
decisions violated the Confrontation Clause); United States v. Bartek, No. 1:07-CR-26-
SPM, 2008 WL 2949437, at *2 (N.D. Fla. July 29, 2008) (finding a complaint, “as a
filed pleading in a legal matter, contains pretrial statements of unavailable declarants
who are adverse to Defendant” and is testimonial).
Because the complaints were testimonial, they could not be admitted unless
their declarants were unavailable and Ms. Cohen had an opportunity to cross-examine
them. See Crawford, 541 U.S. at 68. Although Ms. Cohen was able to cross-examine
Ms. Rothgery before the complaints were admitted, she never cross-examined the
myriad individuals whose statements formed their substance.4 The first contains
allegations based on statements from an individual she had dated, his father, and an
attorney. (R. P. Ex. 101, pp.467-71) The second and third complaints were based on
statements of former clients who provided information to OARC. (R. P. Exs. 102-
103, pp.474-527) Ms. Cohen was unable to question any of these people regarding
their bias, motive, understanding of events, or whether she had actually done anything
wrong. Further, the State never attempted to show any of them were unavailable.
4
With one exception. An individual mentioned in the third complaint’s first set of
factual allegations testified. (R. P. Ex. 103, pp.514-16; R. Tr. 12/05/14, p.1089)
18
Admitting the three OARC complaints violated both the hearsay rules and the
Confrontation Clause.
ii. Admitting professional disciplinary complaints was error.
Judgments in civil actions generally cannot be admitted into evidence in a
criminal trial to establish the facts upon which they were rendered. Kilpatrick v. People,
64 Colo. 209, 215–16, 170 P. 956, 959 (1917). The reason is that the parties are not
the same, and different standards of proof apply. Id.; Admissibility in Criminal
Prosecution of Adjudication or Judgment in Civil Case or Procedure, 87 A.L.R. 1258 (originally
published 1933) (same). “It would not be just to convict a defendant by reason of a
judgment obtained against him civilly by a mere preponderance of the evidence.”
Kilpatrick, 64 Colo. at 215–16, 170 P. at 959.
The same reasoning applies to evidence of attorney disciplinary proceedings.
Colorado’s RPC expressly states that a violation “should not itself give rise to a cause
of action against a lawyer nor should it create any presumption in such a case that a
legal duty has been breached.” Colo. RPC Preamble, ¶20. To the contrary, “the
purpose of the Rules can be subverted when they are invoked by opposing parties as
procedural weapons.” Id.
As with civil actions, disciplinary proceedings involve different parties and
burdens of proof. Disciplinary proceedings are initiated and prosecuted by OARC,
19
not a district attorney. C.R.C.P. 251.9-251.12. The rules governing criminal
proceedings do not automatically apply, and disciplinary charges must be proven by
only clear and convincing evidence. C.R.C.P. 251.18(d); In re Fisher, 202 P.3d at 1199.
The supreme court’s analysis in People v. Pratt also indicates that mere
allegations by OARC are inadmissible in criminal trials. 759 P.2d 676, 681-82 (Colo.
1988). In Pratt the prosecution cross-examined a defense witness concerning a
government audit of a nursing home connected to the case. Id. at 681. The audit had
been closed with no adverse action taken against the witness. The supreme court
reasoned that “[u]nproven accusations, by themselves, do not raise an inference of
improper actions.” Id. at 682. “Similarly, a pending criminal charge against a witness
is an improper subject for impeachment.” Id. It concluded, by analogy, that the same
considerations applied to the audit. Id. Hence the trial court abused its discretion by
allowing the Pratt cross-examination. Cross-examination concerning unproven
OARC allegations is directly analogous.
Although some courts have indicated attorney witnesses can be impeached
with questions about a prior disbarment, they have not suggested that legal pleadings
from the disbarment process can be admitted. See United States v. Weichert, 783 F.2d
23, 26 (2d Cir. 1986); United States v. Whitehead, 618 F.2d 523, 529 (4th Cir. 1980). To
the contrary, one has indicated that disbarment-related documents are inadmissible
20
extrinsic evidence. Whitehead, 618 F.2d at 529. Both decisions issued before Crawford,
541 U.S. 36, and thus do not address the associated confrontation concerns. The
Sixth Circuit, in contrast, has assumed it violated the Confrontation Clause to admit
allegations and factual findings in disbarment decisions against lawyers separately
charged with crimes. Cunningham, 679 F.3d at 383-84 (finding any error was harmless
due to overwhelming evidence and the trial court’s instruction to disregard the
evidence).
Here the complaints were inadmissible because of their nature. They were used
to support the State’s position that Ms. Cohen was untruthful, breached various duties
to clients, and knowingly “converted” client funds. The rules upon which they were
based, however, state that a violation “should not itself give rise to a cause of action
against a lawyer nor should it create any presumption in such a case that a legal duty
has been breached.” Colo. RPC Preamble, ¶20. Using evidence of alleged RPC
violations to create a presumption of wrongdoing was, itself, a violation of those rules.
The evidence surrounding the complaints cast them in two different lights.
Under one, they were simply unproven allegations by OARC. As such, they should
not have raised an inference of improper action and were inadmissible as
impeachment material. See Pratt, 759 P.2d at 682.
21
Under the other, testimony indicated that two of the complaints had already
been resolved; the first with a private admonition from “the Court” and the third by
the Presiding Disciplinary Judge’s findings that the alleged ethical violations occurred.
(R. Tr. 12/03/14, pp.720-21, 772, 777-78) Jurors were thus informed that a judge had
already rendered a decision on many of the complaints’ allegations. Colorado courts
have held for a hundred years that is improper. See Kilpatrick, 64 Colo. at 215-16, 170
P.2d at 959. It “would not be just” to allow a judgment to serve as proof in a criminal
case, when that judgment was obtained between different parties under different
burdens. See id.; see also C.R.C.P. 251.18(d).
iii. The complaints provided inadmissible evidence of alleged lying.
A witness may not opine regarding whether another person was telling the
truth on a particular occasion, even when the other person is the defendant in a
criminal case. CRE 608(a); Venalonzo v. People, 388 P.3d 868, 877-78 (Colo. 2017);
Liggett v. People, 135 P.3d 725, 731 (Colo. 2006). The reason is that a witness’s
“personal opinion on the credibility of witnesses intrudes upon the province of the
jury to make credibility determinations.” People v. Lopez, 129 P.3d 1061, 1066 (Colo.
App. 2005). Credibility determinations are to be made by the fact-finder, not by a
testifying witness. Liggett, 135 P.3d at 732. Further, when one witness expresses a
22
belief as to the veracity of another, that belief “is simply irrelevant; it does nothing to
make the inference that another witness lied any more or less probable.” Id. at 731.
Although specific instances of conduct may be inquired into on cross-
examination concerning the witness’s character for truthfulness or untruthfulness,
they cannot be proved by extrinsic evidence. CRE 608(b).
Here the complaints reflected the belief of their declarants that Ms. Cohen lied
on specific occasions. The first alleged she lied on her bar application and in court on
a particular date. (R. P. Ex. 101, pp.473) The second and third alleged she made false
statements to clients on numerous occasions, and lied to OARC during its
investigation. (R. P. Exs. 102-103, pp.482, 499, 505, 510-11, 518, 526) That type of
evidence is categorically prohibited. See CRE 608(a); Venalonzo, 388 P.3d at 877. The
declarants’ opinion of Ms. Cohen’s credibility was irrelevant and invaded the province
of the jury. See Liggett, 135 P.3d at 731-32. Further, it could not be proved by
extrinsic evidence. See CRE 608(b).
The prosecutor exacerbated the impact of this error by arguing that not only
did Ms. Cohen lie, she “committed perjury” before a named judge. (R. Tr. 12/11/14,
p.2196) Perjury is a class four felony. § 18-8-502, C.R.S. 2017. Jurors heard that
OARC’s investigation found Ms. Cohen lied on multiple specific occasions, and that
she lied criminally at least once. The prosecutor’s intentional injection of unrelated
23
prior criminal activity was, standing alone, reversible error. See People v. Goldsberry, 181
Colo. 406, 411, 509 P.2d 801, 804 (1973).
iv. The complaints were inadmissible under CRE 404(b) and as res gestae.
CRE 404(b) governs the admissibility of uncharged conduct. People v. Novitskiy,
81 P.3d 1070, 1071 (Colo. App. 2003), abrogated on other grounds by Scott v. People, 390
P.3d 832 (Colo. 2017). It mandates that “[e]vidence of other crimes, wrongs, or acts
is not admissible to prove the character of a person in order to show that he acted in
conformity therewith.”
Uncharged conduct evidence is generally inadmissible, in part because it is
“unfair to require a defendant to defend not only against the crime charged, but
moreover, to disprove the prior acts or explain his or her personality.” Kaufman v.
People, 202 P.3d 542, 552 (Colo. 2009). Prior crimes evidence is especially
problematic, as it “casts damning innuendo likely to beget prejudice in the minds of
juries.” Harper v. People, 817 P.2d 77, 85 (Colo. 1991) (citations omitted).
Before admitting such evidence, trial courts must conduct the four-part analysis
prescribed by People v. Spoto, 795 P.2d 1314, 1318 (Colo. 1990). They first ask whether
the proffered evidence relates to a material fact. Second, courts determine whether
the evidence is logically relevant—does it have “any tendency to make the existence
of [the material fact] more probable or less probable than it would be without the
24
evidence[?]” CRE 401. Third, they determine whether the proffered evidence is
relevant independent of the inference that the defendant has a bad character and
acted in conformity with that bad character. CRE 404(b). Finally, courts must
determine whether the probative value of the proffered evidence is substantially
outweighed by the danger of unfair prejudice. CRE 403. Failure to conduct the Spoto
analysis of CRE 404(b) evidence is reversible error when the record does not support
the trial court’s admission of the evidence. See Novitskiy, 81 P.3d at 1072.
Here it is unclear what evidentiary theory the State believed applied to the
complaints. (R. CF, pp.300, 303) The State’s explanation when it sought to admit
them, that they were relevant to Ms. Cohen’s mental state, suggests it was proceeding
under CRE 404(b). (R. Tr. 12/11/14, pp.2075-76)
Ms. Cohen requested, and was granted, pretrial notice of any CRE 404(b)
evidence. (R. CF, p.335) Rather than providing notice, the State specifically declared
before trial it would not introduce the complaints. (Id. at 300, 303) Their subsequent
admission thus violated the text of the rule—“the prosecution in a criminal case shall
provide reasonable notice in advance of trial…”—and left Ms. Cohen unprepared to
address them. See CRE 404(b). It appears the State simply took advantage of the fact
that a different judge made the pretrial rulings in this case, when those rulings never
addressed admission of the complaints themselves. Indeed, the pretrial judge had
25
concluded that evidence of the dismissed counts, which was included in the third
complaint, would “constitute CRE 404(b) evidence” and was inadmissible. (R. CF,
pp.72, 486-87; R. P. Ex. 103, pp.519-20, 522-24)
The State’s pretrial declarations also resulted in the complaints being admitted
without the analysis necessary under Spoto. Failure to conduct that analysis was error.
See Novitskiy, 81 P.3d at 1072. Had the State given the district court the opportunity
to conduct the proper analysis, it likely would have found the evidence was
inadmissible. Ms. Cohen is not disputing that her knowledge of OARC’s investigations
related to her awareness of the applicable ethical rules. Testimony that she had been
investigated, however, is far different from admitting sixty pages of legal pleadings
alleging nearly eighty specific and wide-ranging ethical violations.
Because violations of the RPC should not “create any presumption” that “a
legal duty had been breached[,]” the complaints themselves neither related to nor were
relevant to any material issue. See Colo. RPC Preamble, ¶20; Spoto, 795 P.2d 1318.
They were thus inadmissible under general relevance principles. CRE 402. The
complaints served only to support the State’s position that Ms. Cohen had a bad
character and propensity to lie, as prohibited by CRE 404(b).
Even if the complaints were somehow probative of Ms. Cohen’s mental state,
their probative value was substantially outweighed by their danger of unfair prejudice.
26
See CRE 403. To the extent evidence of ethical allegations illustrated her mindset,
that evidence was provided by the charges themselves. Because jurors had already
heard evidence regarding twenty-one different charged client matters, the ten
additional matters referenced in the second and third complaints added little. See
Yusem v. People, 210 P.3d 458, 467-68 (Colo. 2009) (the balancing required by CRE 403
requires consideration of factors such as “the availability of alternative means of
proof”). Witnesses had already testified that Ms. Cohen knew she was under
investigation by OARC for allegedly committing ethical violations. See id. (R. Tr.
12/03/14, pp.721-27)
The complaints were unfairly prejudicial because they conveyed that the
supreme court’s investigatory arm had already determined Ms. Cohen was guilty of
doing precisely what she was charged with. Further, jurors heard the Presiding
Disciplinary Judge agreed with OARC’s assessment in one of the complaints, which
included one of the charges of conviction. (R. Tr. 12/03/14, pp.772, 777-78; R. P.
Ex. 103, pp.514-16; R. Supr. p.257) A judge believed she had engaged in conversion,
and conversion is “the term we use in law school for theft.” (R. Tr. 12/02/14,
pp.511-12) The complaints thus relieved jurors of the need to determine for
themselves if Ms. Cohen committed a crime. Much like “screening process”
arguments, they encouraged jurors “to rely on [OARC and the Presiding Disciplinary
27
Judge’s] judgment instead of their own convictions.” See Domingo-Gomez, 125 P.3d at
1052. The prosecution’s cross-examination of Ms. Cohen concerning the complaints,
as well as its closing argument, suggested jurors do just that: “[A]fter you have got
those three complaints filed for this kind of behavior, you can understand why theft
charges were filed and you are being asked to consider them.” (R. Tr. 12/11/14,
pp.2078-85, 2202)
Admitting the complaints expanded this case from twenty-one client matters to
thirty-one on the last day of trial. It was unfair and unlawful to require Ms. Cohen to
explain or defend against ten additional accusations of wrongdoing, especially since
those accusations were not admitted until after all other witnesses had testified and
the State had expressly assured her it would not admit them. See Kaufman, 202 P.3d at
552.
As the pretrial judge implicitly concluded, the complaints themselves were not
admissible as res gestae. (R. CF, p.487) They were not evidence without which “the
main fact might not be properly understood.” See People v. Rollins, 892 P.2d 866, 872-
73 (Colo. 1995) (quotation omitted). The “main fact” was that Ms. Cohen was
accused of stealing clients’ money. That was easily understood from the twenty-one
charges presented, and was not clarified by the admission of ten additional client
28
matters, much less her bar application. Likely for that reason, the State did not
attempt to admit the complaints in its case-in-chief or in pretrial motions practice.
Nor were the client matters in the complaints somehow intertwined with the
charged offenses (with the exception of the one that duplicated a charged offense).
The complaints stated completely independent allegations of wrongdoing that were
governed by CRE 404(b). See Rollins, 892 P.2d at 873. Even if some of the
complaints’ content could have been characterized as res gestae, the complaints
themselves were inadmissible under CRE 403 for the same reasons stated above.
v. Admitting the complaints requires reversal.
Admitting the complaints the day of closing arguments was devastating to Ms.
Cohen’s defense. She could not defend against allegations made by witnesses who
never testified, as reflected in documents authored by a witness who had long since
been released by the court.
This case boiled down to whether jurors believed Ms. Cohen or the witnesses
against her. For some of the charges, she was able to show that she either had
provided, or intended to provide, legal services in exchange for the fees she received.
Jurors acquitted on those counts. (R. Supr., pp.235-76) On other charges, jurors had
to take Ms. Cohen at her word. Evidence documenting OARC’s and the Presiding
Disciplinary Judge’s belief that she had lied on multiple occasions, perjured herself
29
before a judge, and stolen from multiple additional clients, necessarily factored into
how jurors credited her testimony.
The complaints’ prejudicial impact was enhanced by the district court’s
instructions, which elevated the ethical rules to statements of law necessary to decide
a verdict (issue II). Additionally, when jurors asked the district court during
deliberations how they could “use the decisions by the OAR and Supreme Court[,]”
the district court provided no guidance (issue IV). (R. Supr., pp.209-10) On the
charges where the evidence was unclear, jurors were allowed to assume the complaints
showed guilt. That is what the prosecution asked them to do: “But after you have got
those three complaints filed for this kind of behavior, you can understand why theft
charges were filed and you are being asked to consider them.” (R. Tr. 12/11/14,
p.2202) Because that request came in rebuttal closing, it was the last thing jurors
heard from counsel before deliberating and was “foremost in their thoughts.” See
Domingo-Gomez, 125 P.3d at 1052.
It was unlawful to use legal pleadings in OARC cases to vastly expand the
scope of this criminal case. That expansion was harmful under any standard of
review. This Court should thus reverse Ms. Cohen’s convictions.
30
II. The district court erred by including within the final jury instructions a
recitation of attorneys’ obligations under the Rules of Professional Conduct.
Ms. Cohen neither objected nor agreed to the substance of the jury
instructions. (R. Tr. 12/09/14, pp.1524-34; R. Tr. 12/10/14, pp.1765-77, 1889-93)
This Court thus applies the plain error standard. In the context of jury instructions,
plain error review requires this Court to “focus upon whether the instructional error
prevented the jury from making a finding that the law requires so as to affect a
substantial right of [the defendant’s] and undermine the fundamental fairness of her
trial.” Auman v. People, 109 P.3d 647, 665 (Colo. 2005). Reversal is required if a
“reasonable possibility exists that the erroneous instruction contributed to [the
defendant’s] conviction such that serious doubt is cast upon the reliability of the jury’s
verdict.” Id. That possibility exists if the instructional error went to a contested
evidentiary issue and the evidence was not overwhelming. Id.
The district court provided jury instruction 11, explaining the “law” associated
with client funds:
Under Colorado law, an attorney earns fees only by conferring a

benefit on or performing a legal service for the client. Unless the
attorney provides some benefit or service in exchange for the fee,
the attorney has not earned any fees and the attorney cannot treat
advance fees as her property.
31
All client funds—including engagement retainers, advance fees,
flat fees, lump sum fees, etc. must be held in trust until there is a
basis on which to conclude that the attorney “earned” the fee;
otherwise, the funds must remain in the client’s trust account
because they are not the attorney’s property.
A lawyer shall hold property of clients or third persons that is in

the lawyer’s possession in connection with a representation
separate from the lawyer’s own property. Funds shall be kept in
trust accounts. Complete records of such funds and other
property of clients or third parties shall be kept by the lawyer.
(R. Supr. p.224)
Jurors were also instructed: “‘Victim’ means any natural person against whom any
crime has been perpetrated or attempted, as crime is defined under the laws of this
state or of the United States.” (Id. at 231)
In rebuttal closing, the prosecution emphasized that instruction 11 explained
the relevant law to jurors:
Now here’s where I want to close. Take a look at the jury

instructions. Instruction 11 is really, really, really important
because it puts down why we’ve been talking about COLTAFF
[sic] accounts and trust accounts and all this nonsense. You
probably have been thinking, man, I have heard more about trust
accounts than I ever want to hear about, because it explains to you
what the law is. And the law is clear and the burden is on the
lawyer to make sure that you don’t spend a client’s money,
especially these kinds of clients who are confused when they start
out.
(R. Tr. 12/11/14, p.2199 (emphasis added))
32
C. Applicable law.
Trial courts must accurately instruct juries on the relevant law, but must not
give instructions that misstate the law or unduly emphasize some part of the evidence.
People v. Ellsworth, 15 P.3d 1111, 1116 (Colo. App. 2000). Nor should they instruct on
abstract principles of law unrelated to the issues in controversy. People v. Alexander, 663
P.2d 1024, 1032 (Colo. 1983). When a jury has been instructed on an extraneous
concept of law, it “may have wondered why it was given the instruction, decided that
it must have been for some purpose, and forced the evidence to fit the instruction …”
Kaufman, 202 P.3d at 562. If “giving of an instruction creates a situation in which it
would be misleading and confusing for the trial court to ask the jury to resolve an
issue that does not exist, then the error cannot be considered harmless.” People v.
Silva, 987 P.2d 909, 915 (Colo. App. 1999).
Multiple jurisdictions have directly addressed instructing jurors on attorney
professional rules, and held doing so is reversible error. State v. Mahoney concerned a
lawyer accused of stealing client funds. 908 A.2d 162, 163 (N.J. 2006). A copy of
New Jersey’s rule detailing the recordkeeping, trust account, and disclosure
obligations for lawyers was admitted into evidence. Id. at 173-74. The trial court then
instructed jurors they could refer to the rule in deliberations. Id. at 174. The New
Jersey Supreme Court held the trial court’s failure to instruct the jury on how to
33
consider and apply the rule was reversible error. Id. It reasoned that “the unexplained
admission of a rule of attorney conduct carries the certain risk that the jury could
conflate the Rule’s requirements with those necessary for the imputation of criminal
liability …” Id.
Similarly, People v. Stein addressed an attorney charged with theft by
embezzlement from client trust funds. 156 Cal. Rptr. 299, 301 (Cal. Ct. App. 1979).
The trial court instructed jurors on the applicable Rules of Professional Conduct, and
indicated jurors could consider alleged violations as proof the defendant had the
specific intent required for the crimes charged. Id. at 302. The California Court of
Appeal found it was reversible error to conflate a professional rule violation with
criminal liability. It was “improper to use the professional rules of conduct to show
that a violation of the rules, if any, would tend to prove that defendant possessed the
specific intent required” to commit a crime. Id. “Even though the instructions did
not presume a violation of the rules, the only reasonable inference that the jury could have
drawn was that evidence of a violation was in fact evidence establishing the required
intent to commit the crimes charged.” Id. (emphasis added).
This Court has repeatedly found error in jury instructions that—although
legally correct—were improper under the facts of their cases. Pueblo Bank & Trust Co.
v. McMartin, for example, was an action to recover money on two promissory notes.
34
31 Colo. App. 546, 547, 506 P.2d 759, 760 (1972). The trial court rejected a tendered
theory of defense instruction, but provided jurors a correct statement of statutory law
relative to the defense. This Court held providing that law was reversible error in the
absence of “interpretation” that would aid the jury in applying it to the facts. Id. at
549, 506 P.2d at 761. “It is error not to include sufficient explanatory language in an
instruction so that the jury may be able intelligently to interpret its meaning and
applicability.” Id. See also People v. Ambrose, 907 P.2d 613, 616 (Colo. App. 1994) (in a
theft case an instruction following statutory law concerning the relationship between
criminal and civil liability was irrelevant and may have misled jurors).
D. Application.
This was not an ethics case. The only question for jurors was whether Ms.
Cohen committed theft, and the only law that applied was the criminal law.
By presenting a summary of the RPC immediately before the elements of
theft—or anywhere in the jury instructions—the district court conflated the ethical
rules with the criminal law. That is precisely the error that required reversal in
Mahoney, 908 A.2d at 173-74. There as here, the defendant was an attorney accused of
stealing client funds. There as here, jurors were provided the rules regarding trust
accounts and recordkeeping. There as here, jurors received no guidance from the
court regarding how the rules could be considered. The only difference is that in
35
Mahoney the rules were merely admitted into evidence; here the district court included
them as statements of law jurors had to apply. To an even greater extent than in
Mahoney, this carried “the certain risk that the jury would conflate the Rule’s
requirements with those necessary for the imputation of criminal liability …” Id. at
174. See also Stein, 156 Cal. Rptr. at 301-02.
The problem with the instructions was obvious. The model criminal jury
instructions contain no reference to attorney ethical obligations. Additionally, the
rules upon which instruction 11 were based expressly state that: (1) a violation should
not create a presumption that a legal duty has been breached, (2) the rules are not
designed to be a basis for civil liability, and (3) the rules are not intended to be
“invoked by opposing parties as procedural weapons.” Colo. RPC Preamble, ¶20.
Those portions of the RPC were not provided to jurors.
It was also obvious that jurors should not have been instructed on abstract
principles of law. See Alexander, 663 P.2d at 1032. Even had some instruction
regarding ethical principles been appropriate, which it was not, providing an extensive
summary of the ethical rules without any guidance regarding their application was
error. As in McMartin, jurors received technical information without any explanatory
language on how to interpret its meaning or applicability. 31 Colo. App. at 549, 506
P.2d at 761; see also Ambrose, 907 P.2d at 616.
36
There is more than a “reasonable possibility” that jury instruction 11
contributed to Ms. Cohen’s conviction. See Auman, 109 P.3d at 665. It was included
among the “rules of law you must apply to reach your verdict.” (R. Supr., p.213
(emphasis added)) Jurors were required to apply the evidence to it in some fashion.
See Kaufman, 202 P.3d at 562. Confirming this, jurors asked two deliberation questions
about the professional conduct evidence, and specifically inquired how instruction 11
applied to the elements of theft. (R. Supr. pp.209-10)
In the context of a theft case, the only rational way instruction 11 could have
applied to the evidence was equating ethical violations with criminal liability. Stein
recognized this. 156 Cal. Rptr. at 302. The role of evaluating whether an ethical
violation has occurred, however, belongs solely to OARC and the Presiding
Disciplinary Judge, not criminal juries. Even if jurors could have been tasked with
finding an ethical violation, ethical violations do not create a presumption that
another legal duty has been breached. Colo. RPC Preamble, ¶20. It was misleading
and confusing for the district court to ask jurors to resolve an issue they had no
authority or need to resolve. See Silva, 987 P.2d at 915.
Instruction 11 impermissibly emphasized the OARC related evidence. See
Ellsworth, 15 P.3d at 1116. This case should not have been more complicated than any
other alleged theft by a service provider. The State nevertheless called numerous
37
witnesses, over objection, to testify regarding attorney ethical obligations and Ms.
Cohen’s alleged breaches. (R. Tr. 12/02/14, p.498; R. Tr. 12/03/14, pp.702-40)
Additionally, it admitted the three complaints addressed in section I. Instruction 11
placed a judicial endorsement on the State’s witnesses’ testimony concerning what
ethical rules applied, and required jurors to credit that testimony in their deliberations.
It also elevated the importance of the complaints.
The error of providing instruction 11 was exacerbated by defining “victim” as
anyone against whom a crime has been attempted, “as crime is defined under the laws
of this state …” (R. Supr. p.231) The prosecution told jurors that instruction 11
“explains to you what the law is.” (R. Tr. 12/11/14, p.2199) All the jury instructions
helped define whether a crime had been committed; that is why they were provided in
a criminal case. The instructions thus indicated that if Ms. Cohen even attempted to
commit an ethical violation against one of her clients, that client was the victim of a
crime. Much of the State’s evidence focused on proving alleged ethical violations. (R.
Tr. 12/03/14, pp.715-38; R. Tr. 12/09/14, pp.1587-91) This conflated professional
and criminal wrongdoing, and lowered the State’s burden of proving the elements of
theft beyond a reasonable doubt. See Stein, 156 Cal. Rptr. at 302; Mahoney, 908 A.2d at
174.
38
This was a theft case governed by the elements of theft. By injecting rules that
were never intended to define crimes, the district court allowed jurors to find criminal
liability on the basis of alleged ethical misconduct. This Court should thus reverse
Ms. Cohen’s convictions.
III. The district court erred by allowing another attorney to testify regarding
every time she believed Ms. Cohen had lied or engaged in questionable
behavior in the past.
Ms. Cohen preserved this issue by contemporaneous objection, but was
overruled. (R. Tr. 12/09/14, pp.1672-73, 1678-82)
This Court generally reviews a trial court’s evidentiary decisions for an abuse of
discretion, and applies the harmless error standard. See, e.g., Veren, 140 P.3d at 136.
Reversal is required under that standard if there is a reasonable probability that the
erroneously admitted evidence contributed to the conviction. People v. Harris, 2015
COA 53, ¶26.
Ms. Cohen nevertheless urges this Court to apply the constitutional harmless
error standard because the trial court’s erroneous evidentiary ruling impinged upon
her right to a fair trial by an impartial jury, as guaranteed by the Sixth Amendment and
Article II, sections sixteen and twenty-three of the Colorado Constitution. See, e.g.,
Domingo-Gomez, 125 P.3d at 1048. The admission of bad character evidence may
39
deprive a defendant of a fair opportunity to defend against a charge. Michelson v.
United States, 335 U.S. 469, 475-76 (1948).
The State called Christina Fiflis, an experienced immigration attorney who had
worked with Ms. Cohen on several cases. (R. Tr. 12/09/14, pp.1621, 1626-36) She
testified on direct that she stopped working with Ms. Cohen because there had been
some “red flags” from the first case they handled together. (Id. at 1631-32) Following
cross-examination, a juror asked if Ms. Fiflis had observed additional red flags. (Id. at
1678) Ms. Cohen objected that the answer would call for character evidence; the
prosecution responded she had mentioned this on cross, and was entitled to explain it.
(Id. at 1672-73) The district court agreed with the prosecution’s representation. (Id.)
What ensued was a five-page narrative apparently listing every negative thought Ms.
Fiflis had ever had about Ms. Cohen, including:
- Ms. Cohen had not been honest in a statement she drafted documenting
a client’s child’s medical problems. (Id. at 1678-79)
- She missed a critical client phone call because her phone was broken and
“there was other things going on.” Although the testimony is unclear,
the “other things” appear to have been Ms. Cohen spending “the whole
40
night at the ER because the baby hit her head on something.” (Id. at
1680-81)
- Regarding a factual narrative in another case, Ms. Fiflis had to tell Ms.
Cohen “not to filter, distort or embellish the facts that were good or bad
… and that embellishment that I had observed in the narrative was very
concerning to me.” (Id. at 1681-82)
- Ms. Cohen was “very concerned that I thought she was a bad person,
and I thought that was a very alarming kind of question.” (Id. at 1682)
The State rested its case shortly after Ms. Fiflis’s narrative. (R. Tr. 12/09/14,
pp.1687)
C. Applicable law.
The law explained in sections I(C)(iii) and I(C)(iv), regarding evidence of other
acts and testimony concerning truthfulness, applies here.
D. Application.
Whether characterized as evidence of other acts or evidence of untruthfulness,
Ms. Fiflis’s narrative was inadmissible. Contrary to the prosecutor’s representation,
she was not entitled to “explain” her brief reference in direct examination. (R. Tr.
12/09/14, pp.1672-73) Ms. Fiflis’s testimony was improper evidence of other acts
under CRE 404(b) because it was neither offered for nor relevant to anything other
41
than Ms. Cohen allegedly being a bad lawyer and a bad person. Allegations that her
legal work embellished facts, she missed an important call, her child hit her head, and
she was concerned about the perception of others, were simply unanchored character
smears. (Id. at 1678-83)
To the extent Ms. Fiflis’s “red flag” testimony went to truthfulness, it did not
conform to CRE 608 for two reasons. First, because she was the State’s witness only
Ms. Cohen could elicit specific instances of conduct on cross-examination. See CRE
608(b). Second, Ms. Fiflis had not previously testified to Ms. Cohen’s general
character. See id. Her testimony was largely confined to explaining the extent of their
working relationship and why it ended. Ms. Fiflis’s narrative about red flags was
simply her opinion that Ms. Cohen had been untruthful on specific occasions. Such
testimony is categorially improper, irrelevant, and invades the province of the jury. See
Venalonzo, 388 P.3d at 877; Liggett, 135 P.3d at 731-32.
Ms. Fiflis’s testimony was prejudicial because it factored into the jury’s
evaluation of Ms. Cohen’s credibility. When jurors evaluated her testimony they likely
credited the opinion of an experienced attorney that she was a habitual liar and
generally concerning person. That opinion corroborated and exacerbated the same
message from the improperly admitted complaints addressed in section I. In a closely
disputed case about whether Ms. Cohen intended to deprive specific individuals of
42
specific sums of money, Ms. Fiflis’s character attack could have been outcome
determinative. This Court should thus reverse Ms. Cohen’s convictions.
IV. The district court deprived Ms. Cohen of her rights to counsel and
presence by responding to three questions from deliberating jurors without
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 the
district court received them it was alerted to the need to consult counsel and provided
an 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 absence
of an objection does not thereafter prejudice him.” Crim. P. 51.
This Court reviews de novo whether a defendant’s right to counsel has been
violated. Guzman-Rincon, 369 P.3d at 756. The constitutional harmless error standard
applies. Key v. People, 865 P.2d 822, 827 (Colo. 1994). The State thus bears the burden
of proving beyond a reasonable doubt that an error “did not contribute to the
defendant’s conviction.” Id. If there is “a reasonable probability from a review of the
entire 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 has
been violated, and applies the constitutional harmless error standard. Guzman-Rincon,
369 P.3d at 758.
Jurors asked four questions during deliberations. (R. Supr. pp.208-11) The
district court did not consult either defense counsel or Ms. Cohen before answering
questions two through four.5
Deliberation questions two and three related to the professional misconduct
evidence. 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 an
element of the offense charged or some other matter of law central to the guilt or
innocence of the accused, the judge has an obligation to clarify that matter for the jury
in 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’s
request” 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 the
existing instructions, a trial court cannot simply refer jurors back to them. Id. Doing
so “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 have
counsel present when the judge gives instructions to the jury or responds to questions
from the jury.” Leonardo, 728 P.2d at 1257. That right includes “the right of defense
counsel 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 constitutional
error for a trial judge to respond to an inquiry from a jury without first making reasonable
efforts to obtain the presence of defendant’s counsel.” Id. (emphasis added); see also United States
v. Smith, 31 F.3d 469, 471 (7th Cir. 1994) (this type of error implicates the Sixth and
Fourteenth Amendments).
iii. The right to presence.
“Article II, section 16, of the Colorado Constitution, and the Due Process
Clause, as well as the Sixth Amendment to the United States Constitution, guarantee
the 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 be
present “whenever their presence has a reasonably substantial relation to the fullness
of 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 district
court’s formulation of a statement to deliberating jurors is a critical stage of trial. See
Guzman-Rincon, 369 P.3d at 759 (concluding “defendant’s right to be present was
violated when the court discussed with the prosecutors what to tell the jurors”).
D. Application.
It was constitutional error for the district court to answer deliberation
questions 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 for
her attorney to argue how it should respond, or object to its response, her right to
counsel was violated. See id.
The district court also violated her right to presence. Had Ms. Cohen been
personally present when the court formulated a response to the jury’s questions, she
too could have exercised her right to interject input or object. See Guzman-Rincon, 369
P.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 the
deliberating jury, whose questions went to the core of the State’s case, was
substantially related to the “fullness of [her] opportunity to defend against the
charges.” See Payne, 361 P.3d at 1043.
The depravation of Ms. Cohen’s rights to counsel and presence was harmful, in
part 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 concrete
and unambiguous manner.” See Leonardo, 728 P.2d at 1256. Its responses provided
48
no clarification. Simply referring jurors back to the same evidence and instructions
that 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 to
provide input on the deliberation questions, they could have. The example in
question two appears to reference evidence that the supreme court had already paid
many 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 as
conclusive proof of theft, by asking whether they could use “the decisions by the
OAR and Supreme Court” and “OAR’s standard for verifying the receipt of
money[.]” (R. Supr. p.209) The answer to both subparts of question two should have
been: “No.” Disciplinary proceedings do not require proof beyond a reasonable
doubt. C.R.C.P. 251.18(d), 252.12. Even if they did, it was the jury’s job to
independently determine whether the State proved the elements of theft by that
standard. See In re Winship, 397 U.S. 358, 363-64 (1970). For the same reasons
explained in sections I(C)(ii) and II(D), jurors could not use decisions by OARC and
the supreme court as proof of theft.
Question three, regarding whether a COLTAF violation constitutes the intent
element 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.” Jurors
should have been informed that an ethical violation “should not itself give rise to a
cause of action against a lawyer nor should it create any presumption in such a case
that 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 jurors
deliberating on her fate asked questions that went to the heart of the State’s case. She
was deprived of that right, and this Court should reverse her convictions.
V. The district court deprived Ms. Cohen of her rights to counsel and presence
by delivering a modified Allen instruction in her absence and without
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 it
preserved.
The applicable standard of review is the same as explained in section IV(A).
Deliberation question four stated: “If we are unable to reach a unanimous
decision 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 in
response:
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 court
delivered its response, and neither was present in the courtroom.6
C. Applicable law.
i. Procedures for potentially deadlocked juries.
When a jury has indicated it may be deadlocked, giving a modified Allen
instruction is not the first response. In cases involving lesser included offenses, the
court “should first ask the jury whether there is a likelihood of progress towards a
unanimous verdict upon further deliberation.” People v. Lewis, 676 P.2d 682, 689
6
See footnote 2.
51
(Colo. 1984), superseded by statute on other grounds as recognized in People v. Richardson, 184
P.3d 755 (Colo. 2008). An affirmative response should require further deliberation
without any additional instruction. Id. If the jury answers negatively, “the court
should then inquire whether the jury is divided over guilt as to any one of the offenses
and nonguilt as to all offenses, or instead, whether the division centers only on the
particular degree of guilt.” Id. Only if an impasse relates solely to the former may the
court, 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 sections
IV(C)(ii) and IV(C)(iii), applies here.
Defendants have a constitutional right to be present when a trial court delivers
a modified Allen instruction, and a violation of that right is reversible error. Payne, 361
P.3d at 1044-45. In People v. Payne a trial court gave the instruction after jurors twice
indicated they were deadlocked, over defense counsel’s objection that the defendant
should be present. Id. at 1042. On review this Court agreed with federal cases
holding a defendant has the right to be present “when a jury is given instructions in
open court, regardless of whether the defendant can provide any assistance to his or
her 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 his
defense.” Id. at 1044. “Moreover, the jury might have speculated on why defendant
was absent, or may have interpreted his absence as indicative of a lack of interest in
the outcome of the case.” Id. Under those circumstances, the prosecution “failed to
carry their burden of proving beyond a reasonable doubt that there was no reasonable
possibility that defendant was prejudiced by his absence when the court read the
instruction.” 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 question
four 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 and
deprived 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 to
speculate regarding her absence, assume she was uninterested in the outcome, or
believe 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 to
be 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 when
jurors’ final pre-verdict question was addressed. See id. at 1045.
What aggravates this case beyond Payne is that Ms. Cohen was also deprived of
her rights to presence and counsel when the district court determined how to respond
to question four. The question did not indicate: (1) whether jurors had already
evaluated all counts; (2) whether jurors had conclusively determined they were
deadlocked; or (3) whether jurors were struggling to decide guilt or innocence, or the
degree of guilt, regarding one or more counts. (R. Supr. p.211) Both Ms. Cohen and
her attorney had the constitutional right to suggest responses or object to the district
court’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 to
provide input on deliberation question four, they could have. The district court’s
response violated supreme court guidance by skipping straight to a modified Allen
instruction. Ms. Cohen or counsel could have requested that the Lewis guidance be
followed, and that the district court begin by asking “whether there is a likelihood of
progress towards a unanimous verdict upon further deliberation.” Lewis, 676 P.2d at
689. This less coercive alternative would have rendered it less likely that jurors, who
at 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, been
provided her right to request that it be followed.
It is impossible to say whether giving a modified Allen instruction, or giving
one in Ms. Cohen’s absence, impacted the jury’s decision making process as to any of
the counts. Hence the State cannot meet its burden of “proving beyond a reasonable
doubt that there was no reasonable possibility that [Ms. Cohen] was prejudiced” by
her and her counsel’s absence. See Payne, 361 P.3d at 1045. This Court should thus
reverse her convictions.
VI. The cumulative impact of the errors in this case requires reversal.
This issue was not raised at trial. This Court may nevertheless independently
review whether reversal is required based on the cumulative impact of numerous
errors. 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 entitled
to a trial on whether she committed the charged offenses, not on whether she was an
ethical or successful professional. The errors here worked together to deprive her of
that right by injecting allegations of numerous ethical breaches, turning the ethical
55
rules into necessary statements of criminal law, and smearing her professional
character. They then prevented her from correcting that shift in focus by denying her
and her counsel any ability to help craft answers to jurors’ questions about that same
evidence, and by excluding her from jurors’ presence during a critical time. Viewed
individually or cumulatively, those errors violated her constitutional right to a fair trial
conducted in accordance with the criminal law. That result cannot stand.
CONCLUSION
Ms. Cohen respectfully requests that this Court reverse her convictions and
remand 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
(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. Andrew
Cooper of the Attorney General’s office through their AG Criminal Appeals account.
57

Emily Cohen Boulder Attorney Immigration Theft Appeal Conviction Opening Brief

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COURT OF APPEALS,

Ralph L. Carr Judicial Center

Appeal, Boulder County District Court

Douglas K. Wilson, Case Number: 2015CA982

Phone: (303) 764-1400

The brief does not comply with C.A.R. 28(g) because:

It contains 12,470 words.

Auman v. People, 109 P.3d 647 (Colo. 2005) ................................................... 31,37

Bernal v. People, 44 P.3d 184 (Colo. 2002).............................................................. 9

Blecha v. People, 962 P.2d 931 (Colo. 1998) .................................................9,15,17

Crawford v. Washington, 541 U.S. 36 (2004) ............................................. 16,18,21

Domingo-Gomez v. People, 125 P.3d 1043 (Colo. 2005) ................... 10,28,30,39

Harper v. People, 817 P.2d 77 (Colo. 1991) .......................................................... 24

In re Fisher, 202 P.3d 1186 (Colo. 2009) .......................................................... 17,20

In re Winship, 397 U.S. 358 (1970) ......................................................................... 49

Irvin v. Dowd, 366 U.S. 717 (1961) .......................................................................... 9

Kaufman v. People, 202 P.3d 542 (Colo. 2009) .................................... 24,28,33,37

Kentucky v. Stincer, 482 U.S. 730 (1987) ............................................................... 47

Key v. People, 865 P.2d 822 (Colo. 1994)......................................................... 43,46

Kilpatrick v. People, 64 Colo. 209, 170 P. 956 (1917) ..................................... 19,22

Larson v. Tansy, 911 F.2d 392 (10th Cir. 1990) .................................................... 52

Leonardo v. People, 728 P.2d 1252 (Colo. 1986) ....................................... 45-49,54

Michelson v. United States, 335 U.S. 469 (1948)................................................... 40

People v. Alexander, 663 P.2d 1024 (Colo. 1983) ............................................ 33,36

People v. Barnum, 23 P.3d 1237 (Colo. App. 2001) ............................................. 15

People v. Ellsworth, 15 P.3d 1111 (Colo. App. 2000) ..................................... 33,37

People v. Harris, 2015 COA 53 ............................................................................... 39

People v. Lewis, 676 P.2d 682 (Colo. 1984)........................................... 51,52,54,55

People v. Lopez, 129 P.3d 1061 (Colo. App. 2005) .............................................. 22

People v. Novitskiy, 81 P.3d 1070 (Colo. App. 2003) .................................... 24-26

People v. Pratt, 759 P.2d 676 (Colo. 1988) ....................................................... 20,21

People v. Richardson, 184 P.3d 755 (Colo. 2008) ................................................. 52

People v. Rollins, 892 P.2d 866 (Colo. 1995).................................................... 28,29

People v. Spoto, 795 P.2d 1314 (Colo. 1990) .................................................. 24-26

People v. Vigil, 127 P.3d 916 (Colo. 2006)........................................................ 16,18

Pueblo Bank & Trust Co. v. McMartin,

Scott v. People, 390 P.3d 832 (Colo. 2017) ............................................................ 24

State v. Mahoney, 908 A.2d 162 (N.J. 2006) ............................................... 33-36,38

Tincombe v. Colorado Construction & Supply Corp,

United States v. Bartek,

United States v. Fontanez, 878 F.2d 33 (2d Cir. 1989) ......................................... 52

United States v. Smith, 31 F.3d 469 (7th Cir. 1994).............................................. 47

United States v. Weichert, 783 F.2d 23 (2d Cir. 1986) ......................................... 20

Venalonzo v. People, 388 P.3d 868 (Colo. 2017) ....................................... 22,23,42

Yusem v. People, 210 P.3d 458 (Colo. 2009)......................................................... 27

Colorado Revised Statutes

Colorado Rules of Civil Procedure

Rule 251.6 ....................................................................................................... 17

Rule 251.10 ..................................................................................................... 17

Rule 251.18 ..................................................................................... 17,20,22,49

Rule 252.12 ..................................................................................................... 49

Colorado Rules of Criminal Procedure

Colorado Rules of Evidence

Rule 403................................................................................................ 25,27,29

Rule 608................................................................................................ 22,23,42

Preamble ¶20 ........................................................................ 19,21,26,36,37,50

United States Constitution

Amendment XIV ........................................................................................ 9,47

Article II, Section 16 ..............................................................................9,46,47

Article II, Section 23 ........................................................................................ 9

Admissibility in Criminal Prosecution of Adjudication or

rights, and this Court should reverse her convictions.

STATEMENT OF THE ISSUES PRESENTED

evidentiary rules by admitting three Office of Attorney Regulation Counsel