Category Archives: Legal Ethics

Ritter Would Pick Replacements Of Any Judges Voted Out In November Election

As confirmed to me by the judicial branch almost three months ago, current Colorado Democratic governor Bill Ritter would name any replacements of judges not retained in Tuesday’s election.  (See, Article VI, Section 20 of the state constitution).  Now that Lawweek ran a story on it today, I finally felt comfortable blogging on it, as so many Republicans told me otherwise despite my having done a thorough email cross-examination of Judicial Branch Public Information Officer, Rob McCallum.

Here’s his reply to my intense questioning back on August 5:

All judges standing for retention are in the midst of a term that expires on Jan. 11, 2011.  If a judge is not retained and sits through the end of the term (which is historically the case) the nominating commission will convene following the November election and go through the process to send nominees to the Governor who will then appoint the new judge to the bench beginning on, or after, Jan 11, 2011.

If a judge is not retained by the voters and decides to immediately resign (to my knowledge this has never happened) then the nominating commission would begin its process and would have names to the Governor within 30 days of the judges departure.  The Governor would then make the appointment.

In both scenarios it would be Governor Ritter’s appointment.  [Ed:  Ritter’s term similarly expires on January 11, 2011]

So much for the debate on the importance of the next governor for the current judiciary, right?.   Or is it?  Sure Ritter is going to appoint some legal losers.  He was a terrible DA and loves other terrible DAs for trial court judgeships (but so did Republican Bill Owens), and of course he will try to appoint Dems or legal establishment insiders who might as well be Dems to the Colorado Supreme Court.  But voting the bums out now  means the replacements only get a provisional two-year term, and are up for retention again then.

As  Clear the Bench Colorado Director Matt Arnold frequently pointed out when it looked like Hickenlooper was a sure bet, the judicial branch ain’t easy to change, and it’s best to take it one step at a time.  After all, it’s better to get these legal losers out now (Justices Martinez, Bender and Rice ) and have a go at the replacement in two instead of the devils-we-know in 10 years.

And while we’re at it, look carefully at your own judges.  If you look at the performance reviews read between the lines, don’t just look at the recommendation or the summary – over 99 percent receive “RETAIN” recommendations.   Under the guise of operating a merit system, the Commission on Judicial Performance operates more like the teachers unions – they get a 99 percent “retain” too.  So if your local judges sound sketchy in the least, there’s a good chance they’re legal losers too.

We need a reform that grades on a curve.  If it’s really about merit, then let’s reform the law to require the Commission give no-retain recommendations to say the bottom 10 percent.  This will force the judges out of the world of communist-like equality into a world of at least modest competition .  Besides, if the locals love their legal losers so much they are free to vote to retain those bottom-ranked judges.

We also need to make the entire evaluation process more open and transparent. We need a lot of reform, and I’ll go into more about the specifics after the election, but contrary to the straw man arguments brought up by the legal establishment, this reform can easily come within Colorado’s so-called Missouri System of appointment and retention.  No one involved in the forefront of the reform movement is advocating straight elections.

Meanwhile, vote down the three Supreme Court justices on the ballot, and urge everyone you know in Larimer County to vote out corrupt, evidence manufacturing district court judges Jolene Blair and Terry Gilmore.  Since January, I’ve been all over this pair of legal refuse that caused an innocent man, Tim Masters,  to sit in prison for murder for 10 years  because of exonerating evidence they withheld,  for which they were disciplined, and for which the county and city paid out a total of $10 million to Masters.  I’m thrilled  that it looks like the voters will spit on the “RETAIN” recommendations cynically handed out by the Commission on Judicial Performance.

Ken Buck Goes Public on U.S. Atty. Friction with Strickland

Ken Buck, the leading Republican candidate for Colorado’s U.S. Senate race,  just made files available to the public from his years at the U.S. Attorney’s office documenting his concerns about a weak case former U.S. Attorney Tom Strickland wanted to file against some pawn shop owners.  Buck turned materials on the case (that included private personnel records otherwise not subject to disclosure) over to the Denver Post, as reported today by Allison Sherry.

The story starts with a pair of Russian immigrant brothers who ran a gun store and pawnshop in Aurora in the 1990s. Gregory and Leonid Golyansky were friends and contributors to the Republican Party — Buck says he knew Gregory Golyansky at the time from Republican society gatherings. …

Federal investigators went to the gun shop in several undercover sting operations from 1996 through 1998, posing as “straw purchasers.” That means two people would come in together, but only the person paying for the gun would have to pass a background check.

Authorities figured this was how career criminals commonly gained access to weapons.

Agents first presented the investigation to the U.S. attorney’s office in 1998, when Buck was chief of general crimes. At the time, Buck and a prosecutor below him declined to file charges because of weaknesses in the ATF probe, Buck said.

Henry Solano, who was then the U.S. attorney appointed by President Bill Clinton, said the ATF never appealed the decision to him. Solano, a Democrat, served in that post until December 1998.

In his view, declining the case “was an appropriate decision,” Solano said in a recent interview.

But when Tom Strickland was sworn in as U.S. attorney the day after a pair of Columbine High School students killed 12 kids and a teacher before killing themselves in April 1999, one of his first priorities was to mount an offensive against gun violence.

So Buck thought the case was lousy, and so did his Dem boss,  Solano.  Then Strickland comes in with Columbine on his mind, and obviously sees political opportunism beckoning.  This is the same Tom Strickland that now serves as assistant Interior Secretary under Ken Salazar.  This would be the  same Tom Strickland that had to be air-lifted out of a rafting trip on the Grand Canyon on April 20 so he could attend to his duties in the gulf oil spill.

This case is also what has had some Jane Norton supporters all abuzz in the comments sections of the conservative blogosphere, including the People’s Press Collective.  So what is Buck’s non-crime here?  He told an attorney for the defense his opinion that the case was weak.  Strickland thought this violated the attorney client privilege under some tortured interpretation.  I say tortured, because the “client” wasn’t Tom Strickland.  The client is the United States of America, and the duty of a prosecutor is not to prosecute a case as hard as possible just because your boss wants you to do that.  A prosecutor has a duty to seek justice on behalf of the public.

Is this the big smoking gun in Ken Buck’s tenure as head of Criminal Prosecutions at the U.S. Attorney’s office that we’ve heard cryptic allusions to?  Ironically, even Bill Ritter’s big bud, Stephanie Villafuerte, thought this case was a dog.  She wrote a memo about the case that the defense attorneys sought to obtain.  Strickland charged the case as a 37-count felony indictment, but it was plead down to the lowest possible misdemeanor, and one day of probation, for one defendant.  Charges against two other defendants were dropped.

By this time Strickland was busy in his failed U.S. Senate run in 2002.  Suthers was aboard as U.S. Attorney, and based on Strickland’s filing of an internal ethics complaint against Buck, issued a letter of reprimand in late 2001.  This letter would have remained a private, personnel file matter but for the disclosure by Buck (though details surrounding it seem to have been leaked by the Norton campaign, possibly via her endorser, Suthers).  And this internal reprimand was in no way a Bar-discipline of any kind against Buck. Ken Buck has a spotless record with the Colorado Office of Attorney Regulation Counsel.

Buck now admits his disclosures were a mistake, though I think that’s debatable.  We need more prosecutors who take their responsibilities seriously and speak out when the boss is pursuing cases for his own political motives and not the pursuit of justice.  As the recent felony mountain biking prosecutions by fellow Penryite and Suthers endorsement recipient, Mark Hurlbert, illustrates, overcharging by prosecutors is a pernicious form of government overreach.  Buck himself recently spoke to me about his concerns about the “overcriminalization” of society.

My only beef with Buck would be that he received about $700 in reported contributions for his Senate run from the Golyanskys.  While this is technically legal, I think it creates an appearance of impropriety,  and I have argued the same about the $2,000 in contributions Mark Hurlbert received from Ali Hasan and family (whom Hurlbert investigated, but declined to prosecute, in 2008).  Unlike Buck, Hurlbert failed to reveal details of his investigation (thereby preventing the public from making its own decision of the merits of Hurlbert’s conduct).  Still, returning  the $700 contributions would be the high road for Buck to take.

Buck’s stance in the Golyansky prosecution was a brave one, and given two well-known Democrat prosecutors agreed with him, and the one who didn’t was Tom Strickland, speaks volumes.  The Penry-led Norton campaign, as Don Johnson recently pointed out, seems truly desperate.  If this is the big dirt they have on Buck, and given the latest polling numbers, maybe Norton  should just bow out now.

Updated: Dems on the attack in predictable fashion.  Good coverage by The Independent’s John Tomasic.  Read the whole DP piece by Sherry, including the 53 comments after the article.  A lot of people seem to get it about how political prosecutor’s offices work.

DA Hurlbert Hints Mountain Bike Racers Don’t Deserve Felony or Jail in Leadville 100 Number Swap: UPDATE 5-13 – Race Organizer Chlouber Wants Criminal Charges Dropped, Says Settlement in Works

In the face of mounting criticism of his May 8 decision to file felony criminal impersonation charges against two Colorado  mountain bike racers for swapping numbers at a Leadville race last year,

DA Mark Hurlbert

DA Hurlbert nows says it is unlikely the two women would go to jail or face a felony conviction.  It also looks like a settlement is in the works and could be announced as early as today.

Hurlbert charged Wendy Lyall, 36, who competed in the women’s 40-49 division of the race, with one count of felony criminal impersonation.  She is due to appear in Lake County Court at 11:30 on May 24.

Her friend, Katie Brazelton, who allegedly gave her non-refundable racing packet to Lyall because she was injured and could not compete, has not yet been charged. Update: 5-12, 11:30 a.m. – The court clerk just notified me that Hurlbert has charged Brazelton with one count of feloncy conspiracy to commit criminal impersonation.  She is due in court on June 7.

Mark Hurlbert is the controversial prosecutor of L.A. Lakers’ basketball star, Kobe Bryant. After a failed bid to extend his term limits as DA, he is now a Colorado state Senate candidate for District 16, shown in this map.  Hurlbert, ironically, is competing for the Republican nomination against an avid endurance road cyclist, conservative/libertarian businessman, Tim Leonard of Evergreen.  Update: 5-12, 11:30 a.m. See today’s lead article in the Summit Daily, on this campaign.  Hurlbert lies and says Leonard was in the race three months longer than him as a pathetic excuse for Leonard whipping him in fundraising.  Try three weeks in the applicable quarter.  Lots of other stupid quotes too.

Given Hurlbert now admits that a felony conviction is unlikely and jail unmerited, why did he go ahead and charge the felony to begin with? Though he probably doesn’t care, Hurlbert certainly knows that the mere charging of a  felony is likely to ruin a person’s life.  Here’s his answer:

We were looking at the laws, and this was the only crime that was a fit.  That doesn’t mean they will be convicted of a felony.

A prosecutor has a sworn ethical obligation, though, not to merely seek a conviction, but to act in the best interest of justice on behalf of ” The People of the State of Colorado.”   It would seem charging an individual with a crime that is admittedly overkill just because later he can leverage it to force a misdemeanor plea bargain, fails this ethics test.

And these life-shattering concerns are not just theoretical.  Before even being charged, Katie Brazelton has reportedly already lost her job as a private school teacher in Vail.  I learned from Google that Brazelton was the Development Director for  SOS Outreach, which according to their website is the “country’s largest winter and summer sports-based youth development charity.”  But when I opened the link, no Katie.  SOS erased Brazelton’s sordid presence from their website as soon as Hurlbert threatened to file, as I discovered from this cached copy Google captured just two days before.

Here’s SOS’ description of Katie Brazelton’s achievements and work:

Katie started her work with SOS as a curriculum consultant during the summer of 2009. She has lived in the Vail Valley since 2004 and worked in educational administrative roles at both a private school and the non-profit world.  She received her undergraduate in 1991 in education from Loyola Marymount University in Los Angeles, and in 2005 completed her Master’s Degree in School Administration. Katie values her time in assisting with the development of programs that provide underprivileged youth with life-long skills and opportunities.

Well, thankfully, Mark Hurlbert stopped Brazelton dead her in her tracks before she continued with any more activities like this.  We can all sleep better at night now.  I don’t know any details about Wendy Lyall, other than everyone seems to like her, she has never committed any crimes, and she’s extremely fit.  And now she’s been charged with a felony.

Interview with Race Organizer Ken Chlouber

Lake County Sheriff Ed Holte promptly responded to my open records act request, and we are the  first to report on the investigation.  It began on March 2, 2010, when  race organizer Ken Chlouber wrote a letter to the Sheriff outlining concerns he’d confirmed from a tip that “two women had lied, cheated and stolen by fraudulently exchanging identities for entry”  into the race.  Chlouber’s letter sets out the

Ken Chlouber - Leadville 100 Race President

possibilities of how the women could have gotten through the identification procedures, and closes with a request for prosecution on theft of services for the $250 in race fees, $225 in awards, plus racer services, including aid stations, security, and a pre-race banquet.

It seems to me that adding in both the race fee and the services provided to racers would be double-counting. On the other hand, Chlouber sounds like he has a better handle on what law might “fit” than Hurlbert. I read the theft of services statute (CRS 18-4-401), and as long as the value of the property taken by “deception” is less than $1,000,  it’s a misdemeanor.

Chlouber writes, “the integrity of the race results was extremely damaged.”  Yet, those results couldn’t be clearer now.  He calls the actions of the two women “disgusting beyond comprehension.”  I’ve seen a lot worse.  Chlouber says, “the two women riders that rightfully should have accepted 2nd and 3rd will never have that moment [on the podium].”  But Chlouber himself devised a solution to this problem by staging a special awards ceremony for them this August.  Undoubtedly they’ll get plenty of spotlight after this debacle.

In short, most if not all the concerns expressed by Chlouber to the Sheriff in March have been rectified.  And the message of deterrence Chlouber wants to send already got delivered loud and clear to the women involved, and to racers throughout the country.

Settlement Discussions Already Underway

Sheriff Holte then passed along the case to the DA in April,  and notably Holte did not recommend charging Brazelton, only Lyall.  Chlouber was adamant in speaking with me that he never wanted jail time for either woman and certainly didn’t want felony charges.   He hadn’t even considered the possibility of a felony “until Hurlbert came out with these charges.” Chlouber also told me it was “overblown” to charge a felony.

According to Chlouber,  negotiations are underway and took place yesterday between DA Hurlbert and the parties.  Chlouber anticipates the case might settle as early as today, and predicted it will settle for something relatively minor,  with no jail time.

What would Chlouber like to see happen?   He wants a written apology to the two displaced racers and a full explanation of the mechanics of how the identity swap occurred.  He wants to know who was up there on the podium receiving the coveted awards, and if it was Lyall,  was Katie sitting in the stands watching?   He wants to know whether Lyall used Brazelton’s I.D., or whether Brazelton entered with her own I.D., and later provided the racer wrist band and bike numbers to Lyall.  He wasn’t completely clear whether he wants a criminal charge.

Update: 5-13- Ken Chlouber would like to see criminal charges dropped if the disclosure and apology conditions are met, and he believes Hurlbert will agree to same.  More details in a comment I posted on Ken Chlouber’s behalf.

Chlouber rejected the suggestion he said some have made for Lyall and Brazelton to appear at the 2010 event ceremony and perform a public mea culpa for the spectators, calling such a spectacle a humiliating “public flogging.”  He also doesn’t want to see heavy fines or “doing something to them worse than what they’ve already done to themselves.”

Laura Victoria’s Verdict

Given the sanctions uniquely available within competitive sports for rules violations, the criminal law is out of place except in rare circumstances, such as a boxer biting off an opponent’s ear.   Chlouber himself has already used his role as race president to rectify most of his concerns.  So I think Chlouber’s remaining concerns are exaggerated, though he seems sincere, even passionate.

But it is precisely the role of the DA to look objectively at the facts,  and divorce himself from the emotion any alleged victim might genuinely feel.   In addition, a  prosecutor needs to do more than scour the criminal code to see if some square peg behavior might “fit” into a round legal hole.  He needs to decide if that “fit” is a just one for all concerned, including the accused and the taxpayers.

Prosecutorial pursuits must be prioritized.  And some pursuits shouldnt be pursued at all.  The remedies sought by Ken Chlouber, combined with what the women have already endured,  should  sufficiently deter future misconduct.   Hurlbert should not pursue any criminal charges, including misdemeanors, against either Wendy Lyall or Katie Brazelton.

Update:  5-12, 11:30 a.m.  After learning Hurlbert has now come up with the ludicrous felony conspiracy charge against Brazelton, all I can say is Hurlbert has exceeded even my expectations for poor judgment.

[Ed: Many readers and bloggers in the mountain bike racing community have expressed major doubts about the seriousness of the alleged conduct of Lyall and Brazelton.  Many don’t like the way  Chlouber runs the event, and believe he’s inconsistent in his concern for rules when big names are involved.  Some question various financial aspects of the event, and some bemoan the graded dirt and lack of singletrack.  Links and comments are here, in an updated article.  Also see the comment I posted based on 5-13 follow-up interview with Ken Chlouber.]