Legal Question in Criminal Law in Colorado

1st Degree Premeditated Murder Appeal

The Miranda Rights state that "you have the right to remain silent. Anything you say or do can and will be used against you in the court of law." It doesn't say that anything you don't say will be used against you. My brother got arrested for shooting someone who was trying to fight him. He thought the guy was reaching for a gun and shot him out of fear. The guy died two days later and my brother never knew that he had killed anyone. Once he was arrested he decided to plead the 5th because he was afraid and didn't have a lawyer. At the end of the trial during the closing argument, the district attorney told the jury that my brother should have said, from the start, that it was self defense, but he didn't. Are they allowed to use what you don't say against you? Can this be means for an appeal? What can he use to get an appeal? Are there any lawyers who specialize in appeals for murder cases? How likely is it for us to get an appeal?


Asked on 3/11/11, 5:37 am

3 Answers from Attorneys
Marc Milavitz The Alternative Law Office of Marc Milavitz

Get a good attorney, the DA can in no way comment on your brother's silence, this may be reversible error and get him a new trial. I do this kind of work and would be glad to speak to you. Good luck.

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Answered on 3/11/11, 8:14 am
Daniel Fenaughty FENAUGHTY & ASSOCIATES, PC

A DA comment about the defendant's silence is error. Your brother should appeal immediately. Do the time calculators at my website (www.lawyerdan.com), then call me, or the Public Defender or ADC or another appellate attorney. Time is your(his) biggest issue at this point.

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Answered on 3/11/11, 12:21 pm
Jason Savela The Savela Law Firm, PC

If you can afford him, contact Tom Carberry in Denver - very good for both the appeal and 35(c) ineffective assistance of counsel.

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Answered on 3/11/11, 12:49 pm


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