DUE PROCESS AND COLORADO’S PRESUMPTION OF GUILT

by | May 7, 2017 | criminal defense, forfeiture

April 19, 2017, was a good day for individual due process rights thanks to the 7-1 decision handed down by the  United States Supreme Court in the case of Nelson v. Colorado.  In this case, a Colorado jury found Shannon Nelson guilty on two felony and three misdemeanor charges. As a result , the trial court ordered Nelson to pay $8,192.50 in court costs, fees and restitution.  Nelson then appealed and the convictions were later overturned.  At the conclusion of a second trial, Nelson was acquitted on all charges. Most people would probably assume that after the acquittal, the State of Colorado quickly refunded Nelson’s money.  However, that was not the case.  Instead, Colorado said that in order for Nelson to get his money back — he had to file a civil suit and prove by clear and convincing evidence that he was actually innocent. This requirement pretty much annihilated the presumption of innocence while creating a difficult and expensive process for recovering  forfeited money. Fortunately for Nelson, we still have due process rights under the 14th amendment.  In analyzing this situation, the Supreme Court concluded that the presumption of innocence was restored when the conviction was erased. Therefore, it was violation of due process for Colorado to impose an obligation on Nelson to prove his innocence. More specifically, the presumption of innocence means that a person who can’t prove his or her “actual innocence” isn’t any less innocent than one who can. Accordingly, the Due Process Clause prohibits a state government from making a person who was not convicted go through “anything more than minimal procedures” to get...

Municipal Appeals — Time For Filing

by | Feb 12, 2017 | zoning

The Mississippi Supreme Court recently revisited some of the procedural requirements for appealing municipal ordinances in the case of Pemberton Properties, LLC, et al, vs. The Mayor and Board of Alderman of Pearl, Mississippi,  In this case, the owners of several apartment complexes were unhappy with an ordinance that the City of Pearl had adopted. The property owners elected to appeal the ordinance by filing a bill of exceptions. The law in Mississippi has long been that a person wishing to challenge a city’s decision through a bill of exceptions must do so within 10 days after the decision was made. However, the property owners in the Pemberton case mistakenly thought that the 10 days did not start running until the ordinance actually went into effect (which was more than 10 days after it was adopted). Because of this mistake, the dismissal of the property owners’ appeal was affirmed by the Mississippi Supreme Court. As a result, the property owners may have been left without any remedy. You have a number of procedural options and remedies available when it comes to challenging the legality of a municipal ordinance or action. However, this case once again illustrates the importance of finding a lawyer with significant local government law experience if you are going to successfully challenge a city’s actions. For more information on our local government law practice, click...