Category Archives: Colorado Courts

Michael Bender Named Chief Justice of Colo. Supreme Court

Colorado Supreme Court Justice Michael Bender was just voted in by his colleagues as Chief Justice, replacing the retiring Mary Mullarkey.  Bender, along with Mullarkey and Justices Nancy Rice and Alex Martinez, were the targets of a no retention effort by Clear the Bench Colorado.  The effort may  well have precipitated Mullarkey’s retirement.  And though the other three justices held on to their posts, the opposition garnered an unprecedented approximate 40 percent of the vote.

To his credit, Bender doesn’t have the usual cookie-cutter government prosecutor background (see Colorado public disgrace, DA Mark Hurlbert, here and here).    Unlike most recent appointees to the courts in Colorado and the rest of the country, Bender worked in private practice from 1979 until he was appointed to the Colorado Supreme Court in 1997.  He also did stints in the Jefferson County, Denver, and state public defender’s offices and the federal Equal Employment Opportunity Commission.  He will officially replace Mullarkey on November 30.

Ritter To Appoint Lesbian Activist Deputy Atty. General Monica Marquez To Colo. Supreme Court

As anticipated, lame duck Colorado Governor Bill Ritter will appoint lesbian activist, Deputy Attorney General Monica Marquez to replace Mary Mullarkey on Colorado’s embattled Supreme Court, according to a report by the Denver Post’s top political correspondent, Lynn Bartels.


Marquez has the needed pedigree.  A law degree from Yale,  Lesbian activism, and a dad who was the first Hispanic to serve on the Colorado Court of Appeals.  We don’t know much more about Marquez or the other two finalists  as they all jointly refused to speak to the public, despite their contact information being provided for exactly that purpose.

She would be the second Hispanic to serve on the Colorado Supremes, and perhaps the only one  should Justice Alex Martinez lose his bid for retention in November.  Marquez, who obtained her law degree in 1997,  has scant experience – and almost all of it defending state government and its employees.  A much nicer photo of Marquez sporting a more stylish haircut is here, together with photos of her co-finalists. [deleted because Law week web site infected with malware]

Anyone who thinks Marquez’ votes on any of the disputed tax and other issues of legitimate concern to the public would be any different from Mary Mullarkey’s votes is delusional.

Clear the Bench Colorado may well have prompted Chief Justice Mullarkey’s resignation, and they and tireless Director Matt Arnold should be applauded for that effort.  It’s an important first step.

But until we achieve systemic change in the judicial branch, we are doing nothing more than rearranging deck chairs on the Titanic.  Worse, we fool people into believing that cosmetic cures mean something when they don’t.  Such deception will only slow reform, not aid it.  What Bill Ritter has given us appears to be a younger, more virile model of Mullarkey.

Links of the Day: Colo. Sen. Shawn Mitchell, Flipping off Cops, Glenwood Springs Police Abuse, Starbucks and Teachers Unions, Federal Hwy. Funds

Republican Colo. Sen. Shawn Mitchell calls a Dem” Senator OneYear”-Dems squeal like pigs, cry like babies-Lynn Bartels brings the public into the junior high lunchroom that is the Dome.  Dems apparently think it’s ok to call GOP members uncaring about “THE CHILDREN” if they don’t vote to fatten already bloated teachers unions, but it’s not OK to joke about the statehouse’s own Appointed One,  Sen. Bruce Whitehead. He faces a tough challenge from Rep. Ellen Roberts, R-Durango, in November.  Let’s hope Mitchell’s prediction is on The Spot.

Lynn B. vividly captures every overwrought, hand wringing moment from the Dems.  Oh, Mitchell had a prior conviction of violating boys-club protocol, when he called Dems “cowards” for turning off his mike during a debate about tax increases.  Mitchell would make a great visitor to B-Ho’s next SOU address.  Maybe the teachers union members could hand over one of their taxpayer-funded Starbucks gift cards to keep Mitchell awake.  Sorry “educators,” I forgot it’s not PC to say junior high anymore.

Flipping off Cops is Legal, Not Advised-so advises  David Kravets in Wired, in this constitutionally accurate and practical piece.  Links to everything you ever wanted to know about the insulting gesture the ancient Greeks dubbed digitus impudicus.

Colorado Won’t Be Outdone in Proving Police Egos outweigh the First Amendment (or in wasting taxpayer dollars)-as this Aspen Daily News article by Editor Troy Hooper sadly shows about an incident involving Glenwood Springs Police. Michael McDonnell, a 23-year old Carbondale man, is running around Pitkin County getting signatures about police abuse to present to the judge when what he should be getting is an attorney appointed by the judge.  Then he might wind up getting the charges dismissed, as they should be.

I’m assuming of course he can’t afford an attorney or would have gotten one by now on his own.  The publicity is good, though, and maybe a good attorney will take Michael McDonnel’s case on at a reduced rate or pro bono. The harassment charges cannot possibly be constitutionally applied to the situation, and the filing a false report charge contains an intent element that would be very hard to prove.  Read the story for the stunning tale of what went down.  Hooper interviewed a local bus driver, who said the local cops are turning into the Gestapo.

A Sensible Approach to Fed Highway Taxes – Summed up nicely by Robert Poole at Reason. Federal taxes should go for what they were originally intended-interstate highways.  They should not go for transit projects, roads, or  bike paths. Similarly, the feds should not impose mandates on states for speed limits or DUI blood alcohol mandate or use of union workers.  Get it: federal means between the states, state governs and pays for what is solely inside the state.  So simple and basic, I don’t look forward to it within my lifetime.

Top Colorado Political Blogger, Ben Degrow adds Ex-Pat Ex-Lawyer to Blogroll at Mount Virtus: We’re Thrilled and Flattered

We’re pleased to announce that Colorado political analyst Ben Degrow recently added us to his blog roll over at Mount Virtus.  Ben’s blog is the conservative/libertarian answer to Colorado Pols, and Ben provides news and savvy analysis of all Colorado political races.

Ben also writes for the People’s Press Collective and holds a day job at Colorado’s conservative/libertarian think tank, the Independence Institute, headed up by Jon Caldara. Ben shares my interest in education policy, though unlike me he has gotten directly involved. He even holds the distinction of being labeled one  “of the most virulent anti-public education individuals in the state,” by the ironically-named the Colorado Education Association.

An intellectual evangelical Christian, Ben writes interesting pieces on cultural issues as well. Whatever race you’re interested in, you can be sure to find excellent coverage of it at Mount Virtus.

Hiring a Criminal Lawyer in Colorado: Part 1 of a How to Guide

Let me be blunt.  Colorado has lots of  strange laws and procedures and also pretty slim pickings when it comes to finding a really good criminal defense lawyer.  Plus, they all know each other.  So if your first attorney-client relationship doesn’t work out, other lawyers in Colorado might be scared off. They also might not want to create bad blood with their colleagues by seeming to be poaching their clients.  So best to get it right the firt time around.

Readers should also know I speak from having been one.  I’m a burned out lawyer with a new career who still passionately likes to follow and write about the legal system.   So as the title of this blog indicates, I am not a licensed attorney and nothing in this blog should be construed as legal advice.
I also have no dog in this fight, as I am not a practicing Colorado lawyer and I will not receive any compensation for the attorneys I recommend.   referral fees are illegal in Colorado

I will also do something you don’t see on most sites:  tell you about some lawyers you should not hire based on personal observations of how these attorneys handle their cases.  Some of these attorneys will probably be miffed at me, but hey, truth is an absolute defense for public criticism.

This first in a series of articles on How to Hire a Criminal Attorney in Colorado will focus on misdemeanor cases, and will speak to the very different situations someone charged with a crime faces in a small community versus one of Colorado’s metro areas.

Get a Free Attorney Consultation Before Going to Court

In many Colorado jurisdictions, such as Summit County, if you show up alone the court clerk will direct you to meet with a DA to discuss your case and get an offer.  You won’t get a Miranda warning because they don’t have to give you one as you are technically free to leave and are not in police custody.  Believe me, the DA is not your friend and is not there to help you.  They want people to plead out to their deal without getting an iota of objective legal advice.

At your free consultation you should ask the lawyer about your bond conditions. These are on one of the many forms you probably signed without reading it to get out of jail.  For a DUI, the bond conditions will typically include a prohibition of drinking alcohol–regardless if you are driving or not and even if you are just enjoying a glass of wine in the privacy of your own home.  A violation of bond if the DA charges it carries a minimum six month jail sentence. If you’ve used a bail bondsman, he or she should explain the bond conditions to you in detail.

If you’re in a small town like Edwards, for example, and are out at a local bar having a drink, even if you’re walking home, if a cop knows who you are, he can and likely will handcuff you right then and there and send you back to jail.

As the most common misdemeanor offense, I will use the DUI as my primary example in this series.  The DUI is a complicated law, particularly when it comes to sentencing and the likely three years of probation you’ll get along with the sentence.  Probation is like being at the end of a short leash with a choke collar.   Even if the attorney cannot get you a better “offer” than what the DA would give you if you showed up all by yourself, the attorney will be able to guide you through the process, including helping you complete the myriad laundry list of probation conditions.  See the next article in this series for more on hiring a misdemeanor attorney and the DUI process in Colorado.

Colorado Theatre Company Will Ask U.S. Supreme Court to Snub Out Farcical Theatrical Smoking Ban Decision

In an opinion issued last month that gave short-shrift to almost every freedom of expression issue raised, the Colorado Supreme Court, in an en banc 6-1 decision, voted to uphold Colorado’s ban on indoor smoking even in the context of a an actor  smoking a tobacco substitute on stage.  Here’s the complete opinion in Curious Theatre Company v. Colorado Dept. of Public Health, including a fuming dissent by a more artistically informed Justice Hobbs.  I can’t blame the Colorado Supremes for going en banc.  I wouldn’t want to sign my name to this opinion either.

The decision is the first in the nation to address the issue to what extent the First Amendment protects theatrical smoking.   If the U.S. Supreme Court were to grant the Petitioner’s sought after review, the case could become a landmark free expression decision.

A candy cigarette and a beaker of dry ice are what actors in Denver have been reduced to, thanks to politically correct application of the indoor smoking ban by Colorado's Supreme Court. (Photo: Todd Webster)

The majority opinion failed to lend a breath to the principle that theatrical smoking is protected expressive conduct, and inserted its inexpert literary judgment that a fake cigarette and a beaker of dry ice would do just fine to convey the intent of the script and director. This photo demonstrates otherwise.

Justice Hobbs’ 20-page dissent smokes out the errancy of the majority’s reasoning.  He points out that  plays such as Who’s Afraid of Virginia Woolf? would suffer serious distortion of their expressive intent if smoke could not hang over the stage or be expelled from a character’s mouth.  In the stage production of The Graduate, for example, “the exhale of smoke shows Mrs. Robinson’s power over young Benjamin.”   The script directs Mrs. Robinson to take a drag, kiss Benjamin, and then exhale after their lips part.  She then begins to take off her clothes and jewelry.

But when Mrs. Robinson “smoked” a fake cigarette in a Colorado production of the play, the audience burst out laughing.  This judicially altered script distorts the meaning of the dramatist and creates a play within a play, where Colorado’s  smoking ban becomes an unintended farcical secondary theme.

And of course theatrical smoking can become a political statement about smoking and smoking bans itself, as in Smoking Bloomberg the Musical. All the artistic expression arguments, however,  seemed to just waft over the heads of the statist and philistine Colorado justices.  Elizabeth Taylor will probably be as upset as I am when she gets a whiff of this ruling.

Colorado is one of only three states in the U.S. whose ban on indoor smoking both extends to theatrical productions and also bans non tobacco clove or tea leaf cigarettes as less restrictive alternatives.  Ohio is another one, but there play producers are disregarding the ban and taking their chances.  Cleveland Plain Dealer theatre critic Tony Brown has a great take on the issue.

Curious Theatre Company was joined in the case by several amicus parties, including the ACLU, The Thomas Jefferson Center for the Protection of Free Expression, and the National Dramatists Guild.  Presumably these parties and more will join in the cert petition to the U.S. Supreme Court urging that this ruling goes down in flames.

Corrupt, Evidence Manufacturing Colorado District Judges Terry Gilmore and Jolene Blair Should Not be Retained in November

Larimer County District Court Judges Terry Gilmore and Jolene Blair are the first sitting judges in over 30 years who have been publicly rebuked by the Colorado Supreme Court’s Office of Attorney Regulation.  They are up for a Retain or No-Retain vote this November.  Back in 1999, when these two were (what else could a judge have been) persecutors–I mean District Attorneys–prosecuting the case of Tim Masters, they not only willfully withheld critical evidence that pointed to Masters’ obvious innocence, they manufactured evidence of their own.  They also suborned perjury from a key police witness.

These blatantly unethical activities by judges  Terry Gilmore and Jolene Blair  directly resulted in Masters being wrongfully convicted of murder.  He spent 10 years in prison because of it. Tim Masters won a new trial and DNA evidence proved him innocent.  These persecutors were then promoted to judgeships, responsible for the fair handling of felony cases.  Phony tough law and order idiots like these two don’t help law and order, and the real killer still runs loose because of them.

Legal scum such as Colorado Judges Terry Gilmore and Jolene Blair who’ve demonstrated no remorse for their manufacture of  evidence and subornation of  perjury,  cannot possibly be trusted to ensure the fair and impartial administration of justice.  In fact, they are arguing in a civil suit brough by Masters that as prosecutors they were immune from liability even if they did manufacture it.  Huh?  Sounds like something’s gotta give.

Judges Blair and Gilmore are nothing less than the Mike Nyfongs of the Rockies. Unfortunately, Colorado’s system of legal discipline is notoriously weak.  Just like Nyfong, these two should have been disbarred.  But for Colorado, a public reproval is what happens when someone ought to be disbarred–it speaks volumes about their misconduct.

Another weak link in the chain of Colorado’s criminal justice system is the Commission on Judicial Performance, which meticulously rates judges  on a huge variety of issues, drawing on questionnaires from attorneys, litigants, jurors, and even judicial staff in deciding whether to recommend a retention or not.  Rarely do they recommend a no-retention to the public.  But so what, the public is free to get its information from other sources, like the stalwart reporting done by Larimer County’s local newspaper, The Coloradoan.

I spoke a while back with the head of the Colorado Commission on Judicial Performance, and unfortunately the scope of their recommendation does not include conduct committed before they were appointed to the bench–even if that misconduct may still be an ongoing problem and the disciplined judges while on the bench, have made no apologies for their misconduct.  Quite the contrary, they provided alibi after alibi, just like a scumbag criminal would, to defend their indefensible actions.

Lack of remorse generally causes judges to sentence defendants to the max. Yet  hypocrite judges Gilmore and Blair think they deserve life tenure in jobs that they are ethically unqualified to hold.  A complete compendium of the Coloradoan’s news articles of the saga of this innocent man and what followed, is contained here.

Onion Ridicules Colorado Supreme Court

The Colorado Supreme Court is currently undergoing a no-retention campaign for four activist judges that seem to have it in for the property rights of private citizens.  The Onion notes that they have now outlawed “Same-sex friendships.”

Colorado’s People’s Press Collective has the audio spoof and the details behind the no-retention campaign.

Elizabeth Oldham: Steamboat Springs DA Short on Legal Experience but Well Versed in Adultery, Evidence Withholding and other forms of Cheating – UPDATED

Despite a history of ethics violations and relatively scant experience as a lawyer, in 2008 Elizabeth Oldham was elected  head District Attorney for Colorado’s 14th Judicial District, a geographically sprawling district that encompasses Routt, Grand and Moffat counties, and includes the  ski resort of Steamboat Springs. It would not be unfair to conclude if more information about her ethical history had been reported to the public and to the Office of Attorney Regulation, the result might have turned out differently.

Why is that?  I should first point out that the information about Oldham’s career at the 14th and why she was forced to leave there for several years and join Mark Hurlbert’s 5th District Attorney’s office, is not disputed at all by Oldham.  She sat down during the campaign for a lengthy interview with Steamboat Springs Local publisher, Thomas Reuter.  In the original post, I linked to the URL for that article, but under what Reuter described to me as local pressure, he removed that URL from his website a few weeks ago.  When I discovered the link was no longer current, I contacted Reuter and he sent me a downloaded Pdf of the article, which I have now embedded at the bottom of this post.

In that interview,  Oldham admitted to Reuter that she’d committed serious misconduct while a Deputy District Attorney in the 14th Judicial District when she, married herself, embarked on an affair with her married-with-children boss, the head DA.  His name is mentioned in the attached article, but is misspelled.  It should have an “a” where it has an “o”.  While Oldham’s marriage remained intact, it broke up the former head DA’s marriage and devastated his wife and children.

As usual, I have done independent research, and recently spoke with this now-Senior Judge’s former wife.  Seven years later, she and her family are still devastated.  Because of this, I have removed the name of her former husband and Oldham paramour from this post.  A Senior Judge, in addition to collecting his PERA pension at a far younger age than most of us get to retire, picks up an additional 20 percent for filling in for judges on vacations and conducting overflow work.  I hope the majority of it goes to his family.

The affair was a violation of the DA’s office ethics rules for reasons that should be obvious.  Each attorney is sworn to uphold state ethics rules, and many rules apply to DAs that don’t apply to private attorneys, because under the law,  prosecutors are sworn to seek justice, even if that means losing a case.  By contrast, defense attorneys opposing them in court, are bound by ethics rules, but are free to defend the guilty and in fact are required to use all legal means to vigrously defend their clients.

In practice, though, many DAs pursue their prosecutions seeking only to win, justice be damned.  Sometimes the DAs just want  notches on their belts, sometimes they are settling personal scores with lawyers or defendants they don’t like.   A boss might overlook ethical violations by his mistress, he might encourage her to cover up his own ethical violations.  He might be threatened  if he left the mistress against her desires with disclosure of the affair to the public or his wife.

In addition, as Reuter points out, a DA is an officer of the court and representations they make will generally be taken at face value by judges in what is called a “proffer” — a statement of alleged facts made without swearing under oath, which serves to immunize the DA from potential perjury if they lie.  Their entire jobs involve proof of the truth.  In theory.

Thus, if someone goes around lying to her husband or his wife, to co-workers, to friends on a daily basis, it doesn’t take an imaginative leap to conclude such an individual is not particularly trustworthy in general.  The wife of the then-head 14th District Attorney was a clerk of the court.  She came into contact with Oldham every day and thought she was her friend, all the while being betrayed.  (And she denies Reuter’s report that she spread news of the affair around the court house).

That’s why such conduct has brought down the careers of politicians who we don’t even expect to be telling the truth routinely, such as presidential candidate John Edwards, South Carolina Governor Mark Sanford, or New York Attorney General Elliot Spitzer.  The media coverup of John Edwards’ infidelities and lies could well have changed the outcome of the presidential election in 2008, as his continued campaigning while the media kept his secrets arguably took a lot of votes away from Hillary Clinton.

Oldham’s series of ethical violations was no big secret in legal circles, but it was from the general public and litigants in Hurlbert’s 5th Judicial District after he brought her aboard despite not only ethical violations of 14th District policies, but his own appropriate policies as well.  He wrote me today, March 29, 2010, he would hire her back had he the opportunity.  Hurlbert did not deny the ethics violations (and how in the small mountain communities of DAs and judges could he or local judges not have known).  In addition, he has failed to report other ethics violations by her as required by the Office of Attorney Regulation.

And just when one would think all this legal hypocrisy couldnt get any worse, the former 14th District DA was appointed a District Court Judge by former-governor Bill Owens.   This left Ms. Oldham with an obvious conflict of interest problem, as she could not ethically have any of her cases adjudicated before him. And akin to all the bad cops that get kicked out of one department and then, behind the backs of  the public who pay them,  get jobs in a new and unsuspecting town or suburb, Oldham moved to Summit County.  Mark Hurlbert ultimately promoted her to his third in command, Chief Deputy.   Hurlbert, facing term limits he unsuccessfully  tried to extend, is now a candidate for State Senate District 16.

The real kick is the reasons Owens gave for the appointment of an ethically challenged District Attorney to a judgeship.  Owens  said:  “During the course of the selection process I heard from a wide range of members of the community about [his] courage, integrity and excellent legal skills. These qualities combined with his exceptional intellect will serve him well as District Court judge.”  I guess Bill Owens had a very different definition of “integrity” than most Coloradans.

Here’s the restored interview, in a downloaded pdf.  Elizabeth Oldham’s Adultery, Ethics Violations, and Conflict of Interest with 14th District DA: Elizabeth Oldham’s Interview with Thomas Reuter. I would note that there’s a lot of stuff here that’s not my style, in particular the observations about what a “legal cutie” Oldham supposedly is.  My characterization of her would not be fit to print.