 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.
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 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.  Color shouldn't matter.
Justice should.  Colorado’s judicial performance system is a mess.
The legislature recently passed a law that will have its first effect in the 2020 election. The law eliminated the performance standard that Colorado’s commissions on judicial performance are supposed to use to evaluate a judge. If you recall, the recommendations the commissions make to voters changed in the last election from “retain” or “do not retain” to “meets” or “does not meet performance standards.” So don’t you think that means there must be a standard the commissions use to evaluate a judge? Think again. SB19-187 removed the previous statutory language that required the state commission on judicial performance to adopt a “clear description of the thresholds for the recommendations of ‘meets performance standard’ or ‘does not meet performance standard’ and how that information will be made available to the public.” The language meant the commissions were supposed to have a standard by which to judge a judge. If a commission is going to tell voters that a judge meets a performance standard, that’s the way it should be. There should be a threshold standard. But the performance commissions were caught in 2018 making some questionable recommendations. That's because the state commission refused to adopt a specific standard as required by the previous law. The refusal resulted in inconsistent recommendations by district commissions. In 2018, Phillip Douglass, a judge in the 18th Judicial District, received a performance score of 83% yet received a “does not meet performance standard” recommendation. Thirty-three judges had lower scores and only one of them also had an unfavorable recommendation. Compare that with Cindy Dang, an Adams County Court judge, who received a performance score of 59% yet received a “meets performance standard” recommendation. A 59% score on a test would be a failing grade, yet the commission determined that Dang passed muster. Dang was retained. Douglass was not retained. If there was a standard which the performance commissions used, there would not have been inconsistent results. The commissions were criticized for inconsistent results and for failing to adopt a standard. Instead of working to comply with the law, the state performance commission successfully lobbied the legislature to remove the language requiring a specific standard. Meanwhile, however, the performance commissions still claim to voters that a judge meets or does not meet a performance standard. Crazy, huh? Arizona uses the “meets” or “does not meet performance standard” recommendation to voters and uses a scorecard to determine whether a judge meets the standard. If 25% of any group of people who respond regarding the judge rate the judge as unacceptable, then the judge does not meet the threshold standard. If a judge receives 2.0 or less from any group of respondents, then the judge does not meet the threshold standard. Not so in Colorado because Colorado has no standard. As shown in 2018, a judge can receive a 59% score, out of 100%, and still receive a favorable recommendation. To sum up, the state commission defied the law in the last election and did not adopt a standard. Then the state performance commission successfully lobbied a reckless legislature to allow performance commissions to tell voters that judges meet a performance standard that does not exist. Wouldn’t you call that fraud? These commissions don’t know whether the judges they’re evaluating have been disciplined. And now they don’t even have a standard to guide them. Colorado needs a new state commission and a new executive director of the Office of Judicial Performance Evaluation. If you haven’t already, please sign our petition to create a new state commission. But know this: No matter what any performance commission claims, Colorado’s judges have no standards. |
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