Station:   KHOW, 630 AM

Show:      Mandy Connell Show

Guests:    Brauchler

Link:       http://www.iheart.com/show/139-Mandy-Connell/

Date:       March 2, 2015

Topics:    Senator Laura Woods,

Click Here for Audio

 

HOST MANDY CONNELL: Mandy: Sen. Laura Woods has a bill to reign in police. Good morning sir. You and I have a much different perspective on this. I’m looking at it from the perspective of people who have their stuff seized but aren’t charged. I’m going to let you talk about why you think asset forfeiture is a necessary tool of law enforcement.

ARAPAHOE COUNTY (18th JUDICIAL)DISTRICT ATTORNEY GEORGE BRAUCHLER:

Well, a couple things. I would say, I don’t think you and I are different on asset forfeiture and certainly the Bill of Rights. I listen to you in the morning as I’m driving into the courthouse, and I have to say I find myself agreeing with most of what you say, and I’m not that far off from what Sen. Woods says.  I think the problem is, and I think what we end up having in Colorado lately, and in part this is a creature of the legislature and how it’s set up, is we find anecdotal problems elsewhere in the country and we say, my goodness, we should address that here in Colorado. And you’ve seen that on a bunch of different laws. And even when you have Sen. Woods, who I have great respect for, on your show, her biggest claims of the abuse of this is to reference a hotel that was seized on the east coast, a case in Philadelphia. There aren’t really good examples here in the state of Colorado to use for that. And I even cite the Denver Post article that was written about the Parker couple. A lot was left out of that article, including the fact that these were people who drove into Colorado from San Diego with $25,000 cash with the express purpose of buying marijuana to take back out to South Dakota. You can’t engage in that type of practice, but nonetheless, the state was not the receiving agency in that. It was the federal government. So my starting off point is not different than yours, and that is that I am extremely skeptical of a government that can step in and take someone’s property without due process. And this then is the other narrative piece that I think is misleading to people, is that there is no due process. I think they picture cops diving along the road, they make a traffic stop, they smell weed, and then they seize the car. It doesn’t work like that. It’s not even close. There is due process at every step of the way, including the fact that warrants, the exact same kind of warrants that have to be filed in a criminal case, requiring probably cause just to seize the property. Just to seize it. Then notice has to be given to the the person whose assets were seized but to anyone who can be found that has an interest in that case. There has to be notice provided. Then those people can contest the forfeiture, and all they have to do is file something electronically with the state that automatically triggers a hearing where the entire burden is on the government to prove, and this is important, the standard is clear and convincing evidence. That’s not unreasonable doubt. It’s the standard that the law requires for the state to take people’s children from them. So this is no small hurdle to overcome. So there is due process all along the way. What’s interesting to me, though, is that in four out of five seizures that take place, no one even contests them, because they are generally the ill-gotten fruit of crime, where they are used to support the criminal enterprise and the person involved does not want to have a declaration that they are the owner of that property because they know it is tied to crime.

CONNELL: [Discusses man in Florida had $8,000 in car to buy a car. Police seized the money, all he had in the world. Sounds easy to say there is due process. But there is a certain amount of fear in someone who had property seized unjustly. Fear, for a lot of law abiding people, especially if they feel  like they are the cops. I can’t afford a lawyer. This is my issue. If someone is charged with a crime and you seize cash. Why don’t you charge at the same time?]

BRAUCHLER:  the fear of the system. I get that. We deal with that every day, but honestly, if you extend it out to its natural conclusion, that applies to every traffic offense, to suggest that the police have accused me of speeding, oh my gosh the cop. I’ve got to go along with what they say. That’s rejected by the number of people who come to court every day to contest their charges and they do , without attorneys, and that’s on something small like a traffic offense. It’s not like, sweet mother of goodness, you’ve taken my $25,000 cash, which is mine, all mine, I got it legally. How dare you take that from me. So I get that but it’s a pretty simple process  online and you don’t have to have an attorney to file. And once it’s filed, you actually have the weight of the world of the government to come to court and prove that these things that they’ve taken are either the product of ill-gotten gains, criminal nuisance. And that answers the other part of what you said, which was, why not require every forfeiture to be hitched to a criminal conviction? That’s because we have public nuisance laws that allow things to be forfeited in those circumstances. We do. When I said four of five people don’t contest these things, then in goes to an administrative forfeiture process, and that goes the route it goes. The other 20 percent, the vast majority of those end up going to a hearing in which a judge who is hired by the government, by which I mean that state of Colorado or the federal government, a judge says, yup, I agree, you’ve achieved this super high hurdle of clear and convincing evidence that it’s contraband, that it is a public nuisance, or in fact that it is tied to a criminal conviction. Because many times this stuff will show up as evidence and it does not get forfeited until the case is over. In a civil preceding, the whole preceeding gets stayed until the criminal case is over. So a lot of what we do, and I appreciate your story about the guy from Florida, is typically we hear horror stories, and typically we hear horror stories from a weird vantage point that lacks one or two facts of consequence. And we say, man, we don’t want that to happen here in Colorado, and I appreciate that. Now I’m not telling you the guy from Florida didn’t get screwed by the system. I’m not telling you that, because I know it happens. Despite our efforts that’s just the way the world works, and we have to figure out a way to minimize that. But for you to tell me, ‘this guy is driving down to Florida to buy a car. I’ve done nothing wrong. The police sees my money and I’m all set to go to court but I’m worried they are going to arrest me.’ What?

CONNELL:[wheny you get a speeding ticket, there is no expectation you going to get arrested. In florida, cops said they wouldn’t arrest him if he turned over his property. he was concerned that people who wanted his money would then charge him.]

BRAUCHLER:  I can’t tell you want happened. I can tell you, most things that happen in Florida don’t happen in Colorado most of the time. We are different on a lot of levels, both good and bad. I just don’t like the idea that we have legislators on both sides of the aisle who see bad things happening elsewhere and say, my gosh, we have to end that here without first saying, let’s look and see what the heck we’re doing here.  You had a senator on the committee—and you probably heard that bill died—on of the senators who was on the committee and voted for the bill said, ‘we don’t have any due process in Colorado for forfeitures, and I have just gone through a thumbnail sketch of the due process that exists. And it’s better due process than you get for somebody stealing your driver’s license, telling you you can’t drive a car for five years. It’s better due process than you get in some cases for the state taking your kids. We do have due process. The issue is, where do we see this system failing Coloradans? And where we see it failing, is this a one off? or is it something we need to address through legislation? And if we look into that and find that, you’re going to find me on your show touting that change in the law because I don’t want the man to be able to show up at my neighbor’s house or pull them over and take there stuff unless there is a lawfully good reason to do so.

CONNELL: can you hang on through a break? How much of these asset forfeitures are being budgeted?..

BRAUCHLER:  The law says it cannot be used for a normal operating expense that would otherwise be budgeted in your annual budget. It is a one time expenditure. When this money, after it goes through all these layers of due process, and comes back to the agency. The ageny is not free to spend the money how it chooses. They are forfeiture boards. The money is kept separately and the funds are accounted for differently. I sit on a board for the 18^th judicial district and so do county commissioners that sit in and listen to, this how chief Jackson says, this is how I want to spend the money that I got off of forfeiture. He doesn’t get to just spend it. People have to vote on that after being given notice and the ability to inquire about it. I do the same thing. I have a very small amount of forfeiture. DA’s offices typically don’t much. But we want to spend them on training. You can’t spend it on personnel. You can’t hire someone, in part because that would be a recurring expense. We had one set of annual trainings I wanted to pay for. I got the board together. I gave notice. They sit around and we had this conversation. And Dave Bieber, who at the time was the sheriff from Douglas County, and now a country commissioner, said, ‘George, I appreciate [inaudible] money this year. My point is, there is real skepticism, even among people who expend these funds, to make sure [inaudible]. I sat on a board when Gracy Robinson, and approved, they wanted to spend the funds to buy to new, because the old ones were failing, ovens for the jail. I mean, this wasn’t like, cops wan to go buy a heliocopter.

CONNELL: Right.

BRAUCHLER:  It’s stuff for the jail to make the inmate experience more palatable. It was like 10s of thousands of dollars, but it was a one –time expense. I do not see them begin budgeted. They are not part of heres the pool of money we have from forfeitures, and sometimes they ask questions like, why don’t you spend this for that. We’re limited on what we can spend the money on. What I appreciate about your show Mandy, is that most people don’t know anything about due process and how the funds get spent. I think a lot of folks think the cops go out there, take something, auction it off, and then theyre out buyig bbqs for the team or something.

CONNELL:[I’m worried about them putting the money in a recurring category or basic necessities.]

BRAUCHLER:  I agree.

CONNELL:[why can’t we charge them first]

BRAUCHLER:  [in most cases that’s how it works.] if you take away the forfeitures from the task forces, they will go away… [money won’t be there. Drug task force will go away]

CONNELL: That’s my concern. I’ve got to ask you how the aurora shooter trial is going.

BRAUCHLER:  Going much more quickly than we anticipated…

CONNELL:[im not sure that we’re in agreement, but I still have some discomfort … ]

BRAUCHLER:  I think you and everyone else listening should be skeptical of a government that has the ability to take private property, but look into the procedure…