The Colorado Index

Temporary Chrysler Stay

Those who are curious as to why one of the most liberal members of the Supreme Court, Justice Ruth Bader Gisnberg, would issue a temporary stay that slows down the Obama administration's reallocation of private assets, visit my favorite site on Supreme Court issues.

The California Ruling on Same Sex Marriage

Those of you who have followed my writings know that I honor the initiative process if not always the outcome.

I am very likely the only candidate that includes support of the initiative process on his campaign literature.

The voters ought to have the right to determine what kind of state they want to live in.  The initiative process, more than representative democracy, gives them that right.  

I would be more than content, for example, to allow the voters to vote on abortion if the US Supreme court would get out of the way.  I have no more idea what the outcome would be than anyone else, but when a Supreme Court honors the voters wishes, no one should be unhappy.

Yesterday, it was announced that the California Supreme Court honored its voters wishes.  Doubtless there were some on the court that wished they could vote the other way, given the liberal leanings of most lawyers, but they didn't.

Why didn't they?

A few decades ago, California had an out of control Supreme Court that routinely ignored the law, the constitution, and the people to the point that they provoked the public not to reconfirm them at election time.  Several justices, including Chief Justice Rose Bird were put out of office by the voters.

That results of that election instilled a discipline in the California Court that is missing here in Colorado. The Colorado Supreme Court has no respect for TABOR and has never ruled in its favor.  It routinely ignores the plain language of that amendment and did again two months ago.

In 2010, Colorado voters will have an opportunity to reassert their will by clearing the bench of four of the six justices who ignored the will of the voters.  I hope we are smart enough to take it.

Clear the Bench

There will be an effort to clear the bench of four of the six justices who used circular reasoning to arrive at the conclusion that a tax freeze need not be sent to the voters under TABOR.

I'm not involved.

The Legal Profession's "Sore Loser" Propaganda Machine

Daniel Cole, who often writes for The Gazette, has tried for the second time to deflect legitimate criticism of a Gazette article or opinion piece by attacking me on my own blog.

At issue is a Barry Noreen piece that repeats uncritically court propaganda that is intended to get the public to overlook bad or activist legal decisions by claiming that only "sore losers" would complain.

This was not the first time I had heard that propaganda.

In December, 2007 I invited myself to a supposedly public hearing concerning the rewriting of the law on judicial performance commissions.  At that meeting, Scott Storey, the representative for the state District Attorney organization, proposed eliminating public input to the commission about judges because "it was always from sore losers."

In the spring of 2008, Jane Howell, the administrator of the state commission testified on the bill in the House Judiciary Committee and made a similar comment in her testimony.

In December, 2007, I had been in contact with the local commission chair, Kit Roupe, in order to try to find out what commissioners were being taught so that I could give knowledgeable input to the people rewriting the bill.  Unbeknownst to me, she was forwarding my emails to her fellow commissioners.

One day that month, I got a surprise email from one of those commissioners, Bernie Herpin.  He asserted that he couldn't recall my ever providing input.  When I reminded him in a return email that I had provided a 200 page packet of annotated court documents, he replied that he did recall the input:

I do now recall your input, not necessarily for the content as much for the volume, but did not associate it with your name as we reviewed thousands of pages of documentation in reaching our recommendations.  For me, a single incident does not outweigh all the evidence that we considered.  We spent many hours reviewing, interviewing, and listening before we made our recommendations.

In our adversarial judicial system, most cases result in "winners" and "losers".  Generally the losing party will blame everything and everyone but themselves.  It would appear you had a bad experience and there is nothing we, as a Commission, can say or do that will assuage your anger.  Since you have not received the satisfaction that you desired, I guess the Commission was an easy target for your dissatisfaction with the system.

We made our decision on Judge Schwartz in 2006.  We are not going to go back and change anything nor is that possible.  When Judge Schwartz comes up for his next retention vote, you will have an additional opportunity to, again, make your concerns available to the members of the Commission.

In the meantime, I would suggest you get over it and get on with your life.

I do hope you have a blessed Christmas season and that you do not allow this anger to destroy you.

The timing and content of this email was curious.  I had asked the commission to stop ongoing misconduct by a judge that spanned a period of years and could in no way be termed "a single incident."  My then six year old lawsuit hadn't come to trial when I made the report to the commission.  Herpin's email was written 18 months after the report to the commission.  My lawsuit still hadn't come to trial and wouldn't for another six months. Yet in Bernie Herpin's eyes, I was a loser whose input should be ignored. He and his fellow commissioners did just that to the point of not even making a cursory examination of the documents.

I haven't gotten anyone to admit it yet, but I suspect that the quote in his second paragraph about the adversarial system is straight out of the training he received.  The public dare not complain about a judge because they are automatically a loser, a sore loser.

Most interestingly, one of my complaints was that Judge Schwartz was protecting attorney Robert Duitch from an attorney misconduct investigation.  I didn't know at the time that Duitch was using that shield to steal from his clients to the tune of $50,000, but he was. Court rules and Judicial ethics canons clearly required Schwartz to both sanction Duitch for what he was doing and forward the complaint to attorney regulation. 

If Herpin and the others had done even the smallest amount of due diligence, the ongoing theft and misconduct would have been stopped and I would have been able to get on with my life as he so crudely suggested.  

The misconduct continued on for at least another year until Duitch closed his law practice and disappeared.  He was subsequently disbarred and part, but not all of the story of what he did is on the attorney regulation website.  (They are careful not to mention that the thefts almost exactly overlapped my long string of complaints to both the judge and attorney regulation about what Duitch was doing.)

It is quite obvious that the state commission has no respect for public input and is teaching its local commissioners not to consider it.

I'm not the only one who the courts have attempted to discredit using sore loser propaganda.

Almost a year ago, John Andrews, Brad Jones and I were in a meeting.  Brad and I were discussing the proprietor of Knowyourcourts.com and how he had been branded as a sore loser.  His judge didn't rule on a motion for two years, effectively depriving him of contact with his children while requiring him to make support payments.  When a judge doesn't rule on a motion, the case goes into limbo which is why there is a state law requiring that judges rule in 90 days.  Of course anyone complaining about a judge not meeting that deadline is automatically a sore loser.

John Andrews said that he too had been branded a "sore loser."

I opined that Barry Noreen's opinion piece is one of a long string of soft reporting about the courts and that The Gazette appears to be buying favorable rulings for itself with favorable coverage, 

Gazette apologist Daniel Cole can't possibly defend what the Gazette is doing because he has participated in it by claiming in a column that judges always follow the law.  Instead of defending the Gazette, he wants to discredit my interaction with Bernie Herpin as "a sob story."

You'll notice that I didn't call your legal ordeal a "sob story." Rather, I called your "struggles with Bernie Herpin" a "sob story," one that seems to exemplify an MO: make a disparaging remark about a column you don't understand, and then when you're called on it, launch into a story about how somebody was so mean to you once upon a time, as if that justified your original disparaging remark. You did the same thing in your last post, as if all the G's crimes could somehow excuse your inability to provide an honest summary of a simple column.

Noreen's column and premise was a victim of Court propaganda, and I am not to give an example of why I believed that to be true without having my example labeled a sob story?I don't think so.

On October 30, 2008, I sent an email to Wayne Laugesen asking for coverage of the courts that informs and protects the public.  I also asked for a meeting on the subject.  When I got no reply, I sent a second request.  That email was also ignored.  When the Gazette doesn't even want to talk about its coverage of the courts, no one can claim that their fawning coverage of the courts is accidental.  All I did two days ago was connect the dots.  If they don't like it, they should change their coverage.

Meanwhile, I will go on thinking that they are trading favorable coverage for favorable rulings.

Daniel Cole, you are now zero for two on this subject.  Do you want to go for zero for three?  When you and your mentors at the Gazette start providing honest coverage of the state courts, you will have room to comment on my coverage of the Gazette, and not before.

Is The Gazette Trading Favorable Court Coverage For Favorable Rulings?

Sunday's Gazette had another head in the sand opinion piece about the courts.  It is completely divorced from reality.  All one need to do is look at the latest TABOR opinion to see the knots that the court tied itself into to find that TABOR, a part of the constitution, was unconstitutional.  And yet Barry Noreen claims that there is no such thing as an activist judge.

I have privately begun to believe but cannot yet prove that the Gazette is trading favorable coverage of the state courts for favorable rulings.

There doesn't seem to be any other explanation for the fawning, other reality coverage that they give the courts.

When The Gazette goes to court, it never seems to lose and they always seem to get awarded their attorneys fees.  That is pretty unusual.

An ordinary citizen who goes up against the Gazette probably can't expect anything but kangaroo court justice.

Is this in the public interest?  Not a lot of the things that The Gazette does are in the public interest.

Edited to add:  Daniel Cole, whose comments appear below, is a frequent contributor to The Gazette.  He is the author of one of the fawning court opinion pieces that this essay refers to, claiming in it that judges always follow the law, though he doesn't disclose that anywhere in his comments.

The Difference Between Strategy and Tactics

One of the reasons that I am attuned to political strategy is that long ago I was involved in writing war plans.  War plans and their associated target lists are all about strategy.

Someone would knock on my door if I wrote more than that, so I will make my point in terms of history.  Civil War history.

Lincoln went through a bunch of generals during the war before he came to Grant.  Every general thought tactically in terms of meeting Robert E. Lee on the battlefield and beating him there.

Several met Lee, but none beat him.  Even Meade really only fought Lee to a draw at Gettysburg.  Meade could have beat Lee after Gettysburg but lacked the courage to attack him before he could cross a flooded Patomic.  Lee was extremely low on artillery ammunition so all Meade had to do was move in close and pound him.

Instead of trying to beat Lee, Grant adopted three strategies.  The first was to bleed Lee's army by refusing to exchange prisoners.  From the time Grant took over, any Rebel captured stayed in a POW camp.  Since the South had limited resources, this meant that at the end of the war Lee was down to 20,000 soldiers.  

The second strategy was to go after the railroads that provided food and fodder to Lee's army at Richmond and Petersburg..  The Southside railroad was the last "lifeline."  When it was cut, Lee immediately abandoned Richmond and five days later the war was over.

The third strategy was Sherman's march up the soft underbelly of the South.  Even if the Southside railroad hadn't been cut, Sherman would have made it impossible to feed Lee's army.

If you look at the Republicans in the legislature, they concentrate on fighting battles on the Democrat's turf.  Sometimes they don't even bother to fight them.

Democrats, on the other hand, go for the jugular.  Amendment 23 was designed to destroy TABOR.  27 was designed to defund Republican candidates while flooding union money into Democrat campaigns.  

Senate Bill 08-054 was designed to put the Supreme Court out of reach of the judicial performance commission in preparation for an assault on TABOR.  Every Republican voted for it.  As a result, when the inevitable attempt to get the four justices who are up for retention defeated is made, a captive judicial performance commission will tell the public what a great job the justices are doing.

It isn't clear that the Republicans have good tacticians, let alone strategists, or that they know the difference. They certainly don't know when the Democrats are trying to pull off a strategic coup or how to react to it.

 

Wrong and Right Reasons for Death Penalty Abolition

Recently, the Colorado House passed HB 09-1274 to abolish the death penalty in Colorado.  It now heads to the Senate for debate.  Ostensibly, the "savings" from not having inmates on death row will help research "cold-cases".  The Post reports:

House Majority Leader Paul Weissmann, a Louisville Democrat who is the bill's sponsor, said more than 1,000 homicides have gone unsolved in Colorado over the past 40 years, during which Colorado has executed only one convict. He said more than $800,000 in saved money would be left over every year after the state funds the cold-case unit.

"We ought to fund the unit we created two years ago to try to solve some of those unsolved crimes," [ Paul ] Weissmann said.

The "savings" numbers that Paul Weissmann quotes seem dubious.  Can we really fund the cold case unit and save $800,000 per year from moving the two prisoners on Colorado's death row to the general prison population?     A true present-worth comparison would compare the costs of someone living an entire life in prison versus the twenty years of prison and appeals prior to execution.  It does not appear that Weissmann's bill does that.

David K. Williams at BlueCarp points to this Denver Post story as a better rationale for death penalty abolition.

An El Paso County judge has ordered a new trial for a man convicted of double homicide, saying that DNA and other newly discovered evidence could acquit him.

Tim Kennedy, 52, was convicted in 1997 and sentenced to 50 years for the murders of Jennifer Carpenter, 15, and her boyfriend, Steve Staskiewicz, 37.

"The case starts over now, so we will be preparing for trial if the DA wants to proceed. That remains to be seen," said Kennedy's attorney, John Dicke.

David K. Williams makes a much better case for death penalty abolition than Weissmann's.

Pro-death penalty advocates possess a mind boggling amount of faith in the government's ability to determine life and death. I don't possess that faith. 

Neither does Tim Kennedy.

And it is not just that the government can be wrong. Far worse, it can be, and all too often is, malevolent.

In this case, the judge found that prosecutors failed to turn over potentially exculpatory evidence to the defense.

This is a blatant, immoral breach of the public trust.  For some reason, prosecutors get caught up in the "game" to win a case at any cost instead of providing "potentially exculpatory evidence" to the defense.  Our legal system is set up on the presumption of innocence.  Prosecutors who violate this maxim just to score a conviction should be penalized and disbarred for their unethical, unprofessional behavior.

With the vast improvement of DNA and other technologies that help provide evidence of innocence, courts are overturning many old convictions.  While "beyond a reasonable doubt" may be okay for a jury to convict someone of a crime, for death penalty cases, the standard must be higher as the State chooses to deprive the accused of not only liberty and the pursuit of happiness, but his life!

There is always some give-and-take as society balances civil liberties and law-and-order.  However, one must error on the side of civil liberties in most instances.  Therefore, I support the principle of abolition of the death penalty, if not the flawed fiscal rationale behind it.

by Civil Sense

Ted Stephens, Not Guilty

The Ted Stephens story is in the news.  The judge has ordered a criminal prosecution into the civil service prosecutors who timed his trial to coincide with the election and then engineered a guilty verdict.

The Denver Post reports:

"In nearly 25 years on the bench, I've never seen anything approaching the mishandling and misconduct that I've seen in this case," U.S. District Judge Emmet Sullivan said.

Sullivan appointed a special prosecutor to investigate Justice Department lawyers who repeatedly withheld evidence from defense attorneys and the judge during the monthlong trial.

This kind of thing happens all the time.  On the Friday before the 1992 Presidential election, prosecutors indicted Caspar Weinberger, handing Clinton a close election.

In 2006, the Colorado Supreme Court held an Attorney Regulation show trial of DA Carol Chambers ten days before the election..  She got a reprimand, but the Denver papers got to crucify four Republicans for three days.

I chuckled at what Ted Stephens said:

"Until recently, my faith in the criminal system, particularly the judicial system, was unwavering," Stevens told the court Tuesday, his first public comments since Attorney General Eric Holder announced he would drop the case. "But what some members of the prosecution team did nearly destroyed my faith. Their conduct had consequences for me that they will never realize and can never be reversed."

He is just another legislator who doesn't pay attention until it impacts him.  Sound familiar?  We have that exact problem in Colorado or SB08 054 would have gotten more visibility.

So, John Andrews Wants to Clear the Bench

Okay.

I'm a little burned out on the subject.

This weekend, I had a very dissatisfying series of email exchanges with Daniel Cole, the Gazette's new apologist for the courts.

This whole blog has been about judicial conduct and misconduct.  There must be at least 100 essays on the subject.  I write one about what he wrote in The Gazette and he appends a comment:

Arguments that I "think the system actually works a certain way" just aren't going to cut it, not when you can't produce a single sentence that actually justifies that interpretation, and not when your only attempt at a meaningful critique falls so demonstrably far of the mark. 

He is completely clueless about what I have written and attacks me because in that one critical essay about his sloppy work, I didn't include a distillation of my previous writings. Further, when I pointed that out, he didn't bother to go see what I have written.  I know because I monitored my page views all weekend.

And, yes, I was critical of what he wrote because he implied that the courts follow the law.

Along comes John Andrews, who disagrees with him.

John Andrews is paddling upstream against a strong current until the Gazette starts covering the courts honestly.

Not to be Overly Critical But...

1.  We're almost half way through the 2009 legislative session but the folks who write the Colorado House Republican Caucus blog still have the 2007-2008 members listed along the right column.

It isn't a big deal since they only seem to be able to make one or two new posts a week.  So much for savvy new media legislators.  When they show up for new town hall meetings, they are all abuzz and atwitter.  I guess I'll see it when I believe it (or something like that).

2.  Has anyone else noticed that Republican legislators who get assigned to the Joint Budget Committee are the Republicans most likely to go off the reservation on TABOR?

The Democrats on that committee must be putting valium in the water.

3.  Last week The Gazette reported that a man convicted of being armed burglar who shot at his victims would get a new trial because he had an ineffective counsel.

In accordance with its long standing policy of avoiding any criticism of the Colorado Supreme Court or Attorney Regulation, it forgot to report on the cost to the public of a trial whose results were thrown out because no one wants to regulate or discipline lawyers.  My bet is that the original trial cost $100,000 or more and now the state wants to plea bargain.

Imagine!