Q: I believe evidence was withheld from me culminating in entering a plea agreement under duress. What can I do about this?

I never saw the photos of evidence sized or the police body worn camera footage before entering into this plea agreement. Also I was able to view the body camera footage three days before my sentence was handed down and the acting DA never returned my lawyers phone calls and messages. The original DA passed away while my case was on going. In the body cam footage, the arresting officer got in his cruiser and drove away from the illegal search and seizure of my vehicle. He drives about a mile away and gets out of the car, goes through a bag on the side of the road, grabs something out of the bag and returns to the search of my vehicle. Then he dismisses the rest of the officers, has a conversation with the passenger of my vehicle to the extent that it was obviously set up. He lets her leave the scene and she becomes states witness. The officer plants in my vehicle, what he had gotten out of the bag and then comes to the detention facility to ask for my consent to search my vehicle.

1 Lawyer Answer
Sean Maye
Sean Maye
  • Criminal Law Lawyer
  • Denver, CO
  • Licensed in Colorado

A: First and foremost, if you did not see essential evidence/videos prior to your plea agreement and you would not have accepted the plea agreement if you had viewed the essential evidence/videos, that is certainly grounds for withdrawing your plea. The practical effect of this is that the case re-opens and you are back to square one -- making the decision to plea negotiate and/or proceed to Trial.

However, in your case, the question of who is to blame for you not seeing the evidence is a confusing one. On one hand, you write that you didn't see it, but on the other hand you then mention that you saw the videos before Sentencing. This may potentially problematic because you could have, and should have, advised the Court of the issues with not seeing the evidence before the Judge proceeded with the Sentencing. This is especially true if you viewed the videos and learned at that time that you potentially had a viable Motion to Suppress based off illegal search/seizure or Motion to Dismiss based of police planting evidence or witness tampering. Had the judge known, they could have undone the plea at that time.

For the most part, your attorney who defended you at the time would need to confirm whether you the videos or not prior to taking the plea. If they were not given the videos until after you took the plea, you've got an easier time of withdrawing the plea potentially. If the videos had been turned over before you took the plea, but you simply hadn't seen them, then the question is one of whether your lawyer advised you of them or failed to do so, which could potentially open them up to a claim of ineffective assistance of counsel (which may be hard to prove given what you've written here).

Justia Ask a Lawyer is a forum for consumers to get answers to basic legal questions. Any information sent through Justia Ask a Lawyer is not secure and is done so on a non-confidential basis only.

The use of this website to ask questions or receive answers does not create an attorney–client relationship between you and Justia, or between you and any attorney who receives your information or responds to your questions, nor is it intended to create such a relationship. Additionally, no responses on this forum constitute legal advice, which must be tailored to the specific circumstances of each case. You should not act upon information provided in Justia Ask a Lawyer without seeking professional counsel from an attorney admitted or authorized to practice in your jurisdiction. Justia assumes no responsibility to any person who relies on information contained on or received through this site and disclaims all liability in respect to such information.

Justia cannot guarantee that the information on this website (including any legal information provided by an attorney through this service) is accurate, complete, or up-to-date. While we intend to make every attempt to keep the information on this site current, the owners of and contributors to this site make no claims, promises or guarantees about the accuracy, completeness or adequacy of the information contained in or linked to from this site.