 A lawyer invests $224,000 in getting a judge off the bench. Judge wins retention election. Lawyer’s firm then has a case before the judge. How do you think that works out? Well, the law firm moves to recuse the judge. Judge denies the motion. Then the judge strikes the law firm’s expert witness’ testimony. And the jury doesn’t do what the law firm wants. Law firm appeals. A senior judge is specifically assigned to hear the appeal. The senior judge writes a published opinion siding with the trial judge. The trial judge at issue is Adams County District Court Judge Edward Moss. The retired "senior" judge who was assigned to hear the case at the Colorado Court of Appeals is former Supreme Court Justice Alex Martinez. The law firm is Frank Azar’s firm. Azar contributed to a campaign against the retention of Judge Moss. It’s all detailed in this article in Colorado Politics. Normally, a case at the Colorado Court of Appeals is heard by a panel of 3 full-time judges. Instead, a senior judge was hand-selected to hear this particular case with two full-time judges. Senior judges do not go through retention elections. Senior judges are hired via a contract with the state court administrator's office. In other words, the state court administrator selects which judges get to be senior judges. The people don't select such judges. Senior judges are not bound by the same ethical requirements as full-time judges. There is no specific finding that must be made to assign a senior judge to a case. The parties in a case are not provided with the opportunity to agree or object to a senior judge. A senior judge is simply assigned to a case by the chief justice of the Colorado Supreme Court with the help of the state court administrator. So why was a senior judge assigned to this particular case? We’re left to wonder why. The article also states that:  "During the retention election, the 17th Judicial District Commission on Judicial Performance unanimously determined Moss met performance standards, noting that he was ‘a well-respected leader in the Colorado court system when it comes to judicial ethics and ethics education.’ Moss, the former mayor of Westminster, is a member of the Colorado Bar Association Ethics Committee and became a judge in 2004. The judge prevailed in his election with just under two-thirds support from voters." But the performance commission that evaluated Moss had no idea how many complaints had been filed against Moss or whether Moss had ever been disciplined by the discipline commission. That's because judicial discipline proceedings are confidential in Colorado.
For all we know, many complaints regarding Moss could have been filed with the discipline commission. And those complaints could show that Moss is biased in favor of insurance companies as was alleged in the campaign against Moss' retention. It’s possible that Moss agreed to discipline for such bias and it was all kept from public view and the view of the performance commission. The performance commissions have no specific standard that a judge must meet. The performance commissions simply state that a judge meets or does not meet a performance standard that doesn’t exist. And they issue such a finding without even knowing whether any complaints were filed against the judge and without knowing whether the judge has been disciplined. Why is so much information about judges hidden from public view? The question remains: Was a fair trial had in this case? We do know that a senior judge who was specifically assigned to the case at the Court of Appeals declared that a fair trial was had. Do you agree? Why couldn’t Colorado’s judicial branch let a panel of 3 full-time judges issue the appellate opinion? Wouldn’t you have had more faith in such an opinion? Why did the chief justice and the state court administrator decide to tinker with this case? If the case is appealed to the Colorado Supreme Court, do you think the chief justice should hear the case? The chief justice decided to put Senior Judge Martinez on the Court of Appeals’ panel. Do you think there is an appearance of impropriety if the chief justice hears this case if it goes to Colorado’s Supreme Court? When the trial judge struck the expert witness testimony, was that an act of retribution by the trial judge against the lawyer who paid to get the judge off of the bench? Was the senior judge specifically assigned to uphold the retribution? Is this a case of judicial bullying where the judges are telling the lawyers to watch out? This case leaves us with many more questions than answers. And it’s Colorado’s judicial system that creates most of the questions. Does the system leave you doubting whether justice was had? Does the scenario presented by this case make you question your trust in Colorado’s judicial system? Don’t you wish that Colorado had a judicial system that was more focused on systematically ensuring judicial integrity? Please sign our petition to support judicial reform in Colorado.
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 Optimistic graffiti outside Colorado’s Supreme Court building reads: “We will be heard.”
Left in the wake of recent protests prompted by the murder of George Floyd in Minnesota by a police officer, the graffiti is an example of the sincere determination of protesters. The placement of these particular words in front of the flagship of Colorado’s judicial branch, however, ironically shows why necessary reforms are so elusive. Make no mistake about it, protesters across the nation have been heard. And the Colorado legislature is currently working on a bill to address police brutality. Newscasts and news articles have shown legislators calling for transparency and accountability. Other countries have even taken notice of America’s current plight. Some have expressed concerns regarding the future of the American democracy. After a dramatic pause, Canadian Prime Minister Justin Trudeau said, “We all watch in horror and consternation what’s going on in the United States.” China is gloating. At the root of it all is the horrendous abuse of power by a government official. Because the crime involves racism, it is particularly alarming. Democracy relies on the benevolence, selflessness and ethics of its government officials. When public servants don’t embody those characteristics, democracy fails. That is why all government officials must be monitored. Body cameras on police will help. More tracking of police misconduct will help. But it’s not enough. The Denver District Attorney has repeatedly over the years refused to criminally prosecute police misconduct. One has to wonder, if George Floyd was murdered in Denver, would the police officers who killed him be criminally charged? The Denver DA is properly criticized, but in the DA’s defense he or she has to consider the likelihood of a successful prosecution in the judicial branch. A bad cop’s best friend is a troubled judge. A justice system that is not built on rigorous adherence to the Code of Judicial Conduct is not the place to hold a police officer accountable for criminal conduct. The General Assembly is attempting to remove portions of a criminal code section that provide an officer with a defense in a case involving physical force by a peace officer. It’s possible that those changes would mean a Colorado district attorney would be more likely to criminally prosecute a cop. But such a case would still have to be successfully prosecuted in Colorado’s judicial branch. Judges often work closely with police officers. Warrants must be approved by judges. Police officers often appear before judges. Judges and the police work together. Meanwhile, Colorado state court judges get to sweep their own misconduct under the rug. Judicial discipline proceedings are not public in Colorado. It’s actually a crime in Colorado for someone assisting the discipline commission to reveal the contents of a complaint or investigation at the judicial discipline commission. The Colorado judicial branch holds the purse strings for the Commission on Judicial Discipline and refuses to publicize the amount of money spent to prosecute judicial misconduct. We do know from statistical reports that 97% of complaints filed with Colorado’s judicial discipline commission are dismissed. The laws regarding judicial discipline in Colorado teach judges that misconduct of government officials should be covered up. Colorado judges are led to believe that public servants are above the law. Unless this system is changed, the successful prosecution of improper physical force by a police officer is in peril. A district attorney will always consider the likelihood of a successful prosecution when determining whether to file charges against a peace officer. And both the district attorney and the judicial branch have a soft spot for police officers. Should a district attorney be required to go to a grand jury before deciding not to prosecute a case of improper force by a police officer? Should a district attorney be bound to prosecute a case if a grand jury supports prosecution? Should a judge be unable to dismiss a case against a peace officer, requiring the case to be heard by a jury? How can anyone expect a judicial branch that covers up its own misconduct to fairly preside over a case involving police misconduct? To some extent, we are all responsible for George Floyd’s death. We have let government officials get away with lax and selfish standards that benefit government employees yet endanger the people. We the people have failed. Black lives matter. The justice system must change. Current proposals in Colorado are too narrowly focused and miss the big picture. We must all be emboldened by the courage and wisdom of the Black community. Now is the time for change. We cannot allow legislators to simply put a band-aid on this major, hemorrhaging injury. We must change the culture and environment throughout government. All discipline proceedings of all public servants should be public. Ethical codes must be rigorously enforced. Public officials must meet high standards and if they fail to meet those standards they must be let go. Too often, Colorado – and America as a whole – enable and encourage the abuse of power by government employees. The graffiti outside Colorado’s Supreme Court states, “We will be heard.” Unfortunately, the chances of being heard in a judicial branch that covers up its own misconduct are not very good. The Black community must be heard. Changes must be made. And those changes must not only help to prevent injustices from occurring, but also help to ensure justice is had when government employees violate the law. We can build a better justice system. The world is watching.  A judge’s wife sitting on a jury in the judge’s courtroom is OK with the Colorado Supreme Court because there was no objection at trial.
“I think we’re both afraid to challenge her,” is what the criminal defense attorney said at the trial. Fear. The lawyer was afraid of the judge. Imagine that. And the Colorado Supreme Court is just fine with a lawyer being fearful of a judge. The Colorado Supreme Court affirmed the conviction that resulted from the trial before Adams County District Judge Thomas Ensor. The criminal defendant, who was convicted of multiple crimes and sentenced to 16 years in prison, argued that the judge’s wife serving as a juror, plus the judge’s comments on that relationship (“Be nice to Juror 25. … My dinner is on the line.”), rendered the trial fundamentally unfair. The defendant appealed, but a problem is that the defense attorney did not object to the judge’s wife sitting on the jury. The defendant is alleging that the judge should have explicitly asked the prosecution and the defendant if they agreed that his wife could serve. At oral argument, a Colorado Supreme Court justice said, “I don’t think any of us here think, ‘Well handled.’ … But inappropriate is different than structural error.” So much to think about in that statement. What's inappropriate? Is a Supreme Court that issues rules protecting judges from prosecution for judicial misconduct acting inappropriately? Is a Supreme Court that fails to do anything to increase transparency in the judicial branch behaving inappropriately? Is a Supreme Court that fails to do anything to increase accountability for judicial misconduct acting inappropriately? But as the justice said, “inappropriate is different from structural error.” It’s a fancy way of saying that ‘what the judge did looks pretty bad but we’re not going to reverse a case just for that.’ This is the modus operandi for the Colorado judicial branch. And it came straight from the mouth of a Colorado Supreme Court Justice – Brian Boatright. Judges in Colorado are explicitly allowed to behave inappropriately. A judge’s ruling will not be reversed if the judge behaves inappropriately. And the judge is protected from prosecution for judicial misconduct if the judge behaves inappropriately. Given that Colorado’s system protects judges from prosecution for judicial misconduct, and that judicial discipline proceedings are kept in the dark in Colorado, do you trust the Colorado Supreme Court to fairly determine a case that regards a judge’s conduct? Do you think that inappropriate behavior by judges a problem in Colorado? If so, please sign our petition to improve Colorado’s justice system. |
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