LAW WEEK COLORADO

The Senate Judiciary Committee, on a voice vote, Thursday recommended that Denver lawyer John Walsh be confirmed by the Senate as Colorado’s next U.S. Attorney.

Walsh, a partner at Hill & Robbins, was nominated in April by President Barack Obama.

The committee considered Walsh along with several other U.S. attorneys and U.S. marshals. Their approvals came in a voice vote.

Separately, U.S. Sen. Mark Udall of Colorado is to speak on the Senate floor Thursday as part of a push by both the state’s senators for a vote on confirming Denver attorney William Martinez as a Denver-based federal judge, The Denver Business Journal reported.

Editor’s note: This story is developing. Check back for more details.

LAW WEEK COLORADO

Ernie Panasci, a member of the Jones & Keller banking and financial services group in the Denver Tech Center office, testified Thursday before the Financial Services Committee of the U.S. House of Representatives.

Panasci testified before the full committee on “Alternatives for Promoting Liqudity in the Commercial Real Estate Markets, Supporting Small Businesses and Increasing Job Growth.”

Panasci’s prepared remarks are available by clicking on Testimony of Ernest J. Panasci, Shareholders and Director, Jones & Keller, P.C. His video testimony may be accessed by going to the website of the Committee on Financial Services Hearing Details and clicking on the “WebCast” link.

Daily Camera Video

LAW WEEK COLORADO

The sign in front of the Boulder County Justice Center was vandalized over the weekend, The Daily Camera reports. Quotation marks were strategically stenciled on, rendering it the Boulder County “Justice” Center.

District Attorney Stan Garnett, who is also the Democratic nominee for attorney general, said he didn’t notice the vandalism until Wednesday.

“From time to time, people are disgruntled with a particular result, and that’s understandable,” Garnett told the Camera. “But it doesn’t mean it’s not justice.

LAW WEEK COLORADO

Kathleen M. Schoen, the director of the Colorado Bar Association’s local bar relations and access to justice department, has been named a 2010 recipient of the Sharon Corbitt Award.

Schoen will be honored at 10 a.m. Aug. 6 in the offices of Arnold & Porter in San Francisco.

The award is named for the late former chair of the ABA Family Law Section and a member of the Commission on Domestic Violence.

LAW WEEK COLORADO

Colorado’s Supreme Court Nominating Commission received 31 applications for the seat being vacated Nov. 30 by Chief Justice Mary Mullarkey, who is retiring, the Colorado Judicial Branch said Wednesday.

Separately, a vacancy on the Colorado Court of Appeals generated 25 applications, said Jon Sarche, a branch spokesman. Sean Connelly is leaving the bench to open a new Washington, D.C., office for his former law firm. The deadline to apply for both positions was 5 p.m. Monday.

The 15-member nominating commission meets several times next month to review the applications, interview candidates and select finalists for consideration by Gov. Bill Ritter. Colorado has had a merit-selection system for judges since 1966.

In other judicial news, Ritter was scheduled to interview candidates today for a vacancy on the 19th Judicial District bench, where Gilbert Gutierrez is retiring. Ritter is expected to announce his pick soon after.

Montezuma County Taser Video from Circuit Media on Vimeo.

Source: Montezuma County Sheriff’s Office
Ignacio “Michael” Rael is forcibly removed from a holding cell by Montezuma County sheriff’s deputies on the order of 22nd Judicial District Judge Douglas Walker.

By Ali McNally and Don Knox
LAW WEEK COLORADO

DENVER — A convicted second-degree murderer in Cortez was overwhelmed by six helmeted sheriff’s deputies, Tased twice, forcibly restrained, cable-tied then shackled, hooded and placed in a belted chair before being whisked to a February sentencing he didn’t want to attend, a video obtained by Law Week Colorado shows.

The method used to subdue Ignacio “Michael” Rael by the Montezuma County’s Sheriff’s Office appeared to be by the book. Also by the book was the office’s videotaping of Rael’s extraction from the cell. Law Week obtained the video from the sheriff’s office through a request made under the provisions of the Colorado Open Records Act.

Montezuma County Sheriff Gerald Wallace told Law Week that deputies tried to talk Rael, whom the sheriff considered violent, out of his holding cell before using force. Rael likely was Tased because he didn’t immediately show his hands, Wallace added.

But questions remain as to whether Montezuma County Judge Douglas Walker, who issued the controversial order for sheriff’s deputies to use “all reasonable and necessary force to transport the defendant for court for sentencing,” unnecessarily put both the defendant and sheriff’s deputies at risk through that order. Two Colorado law professors told Law Week that Rael’s forced appearance at the sentencing was unusual.

The Colorado Judicial Branch has not publicly addressed the wisdom of Walker’s order. In February, spokesman Rob McCallum said only that the branch placed “a high value on its relationship with law enforcement and places its trust in those officials to decide what course of action is necessary in any given situation.”

Walker, who is running for voter retention in November, has repeatedly declined comment since the sentencing, but 22nd Judicial District administrator Eric Hogue released a copy of Walker’s order to Law Week.

Wallace, the sheriff, told Law Week that his personal opinion was that Rael should have been sentenced in absentia because he was tried in absentia. But he nevertheless followed Walker’s order.

Brutal killing

Colorado doesn’t require defendants to appear at sentencing hearings, even convicted murderers like Rael who are accused of especially brutal behavior.

Rael used leather-weighted gloves to beat ex-girlfriend Diane Cordova to death, prosecutors said at his trial. Rael didn’t make an appearance at his trial — he has contended he wanted to appear but was not allowed to do so — but he was represented by state public defenders. A jury considered both first- and second-degree murder charges against Rael before settling on second-degree murder, which is murder without premeditation. Walker sentenced Rael to the maximum 48 years in prison.

Rael’s appearance at his sentencing gave the victim’s family the opportunity to confront the killer before he entered the prison system, possibly for the remainder of his life.

“I can understand why a judge would want a defendant there, and I can understand why the victim’s family would want him there,” said Patrick Furman, a University of Colorado law professor. “But I am unaware of a requirement” that defendants appear at their sentencing hearings.

Jessica West, a visiting professor at the University of Denver Sturm College of Law, said, “It’s extremely unusual for a criminal defendant to be forcibly brought to their sentencing hearing.”

However, West added that while a criminal defendant has a constitutional right to be present at their sentencing, “he or she does not have a constitutional right to not be present at their sentencing hearing. A judge can allow a criminal defendant to waive that right [to appear], and defendants do waive that right in a number of circumstances. But constitutionally, a judge is not required to allow someone to not appear at the sentencing hearing.”

Rael objected to his treatment at his sentencing. The Cortez Journal quoted him as saying, “I was beat, handcuffed and tied to this chair. What’s wrong with this picture? I’m not an innocent (expletive deleted), but come on, man!”

In the days after Rael’s sentencing, Colorado Public Defender Douglas Wilson told Law Week Colorado, “I have not been able to talk with my attorneys yet, but the conduct by the judge and the sheriff was outrageous. No, this does not happen and should never happen anywhere in this country. The court has the right, as a last resort, to ban a disruptive client from the courtroom, but not to order that anyone ever be tortured, bound and gagged in a restraint chair.”

Relatively new judge

Walker is a relatively new district court judge in the 22nd district. Colorado Gov. Bill Ritter appointed him July 11, 2007. This month, Walker filed papers indicating he will run for voter retention this November.

Before being appointed to the court, Walker served as a district court magistrate for both the 22nd and 6th judicial districts since 1997. Before that, he was a sole practitioner (1981 to 1997) and worked for two years at the Alternative Horizons Domestic Relations Legal Project (1996 to 1997). Walker was also a tribal prosecutor for the Southern Ute Indian Tribe (1982 to 1995), and worked in the Law Office of Frank Anesi in Durango (1979 to 1981).

Walker’s judgeship was a new position created pursuant to House Bill 07-1054. The initial term of office is a provisional term of approximately two years, and if retained by the voters, a term of six years.

The district’s only other judge, Sharon Hansen, recently announced her retirement, meaning that Walker will be the district’s most senior judge if voters send him back to the bench.

Under Colorado’s judicial-performance program, Walker’s pre-retention performance evaluation is to be released Aug. 3. It’s not known whether the Rael order will be mentioned. A summarized version of the evaluation will be included in state-printed “blue books” distributed to every Colorado voter prior to the Nov. 2 election.

The 22nd Judicial District performance commission is made up of lawyers Kelly McCabe, Peter Ortego, Jim Shaner and Kent Williamson and non-attorneys Leslie A. Taylor (chair), Diana Buza (vice chair), Joe Keck, Travis C. Morgan, Kelly Wilson and James R. Wynes.

Law Week Colorado staff Matt Masich and James Chaney contributed to this report.

The video clip above shows the following action taking place.

0:06: Six helmeted deputies, at least one carrying a shield, enter through exterior door at detention center.

0:13: Wristwatch is photographed to note time.

0:24: Deputies enter interior hallway.

0:31: Rael’s cell door is in view; a black cloth covers the door’s window.

0:34: The door is unlocked and deputies storm the room, forcing Rael down on his prison cot.

0:37: The sound of a Taser charge is heard. Rael yells in pain.

0:48: Rael continues to yell; a deputy orders him to raise his arm and his head.

1:26: Rael yells, “I’m not resisting. I never did resist. I never did resist. I’m not trying to resist.”

1:43: A deputy advises Rael not to resist.

1:45: Rael again says, “I’m not resisting.”

1:47: A second Taser shock is heard, followed by Rael yelling.

1:58: A deputy shouts, “Give me your fingers. Give me your fingers.”

2:00: Rael yells again.

2:29: The first full view of Rael is videotaped.

3:12: Rael is placed in belted chair.

6:30: At least one Taser probe is missing and may still be on Rael, one of the deputies reveals.

6:25: The camera pans through Rael’s cell to food on floor, bed, toilet and filth on walls.

7:10: A hooded Rael is wheeled back into his cell and the sound of a locking door can be heard.

[An unknown amount of time elapses; video camera restarted.]

7:25: As Rael yells, deputies return to cell, unlock the door and enter.

8:11: A deputy requests shackles for Rael.

9:00: Tape is applied to Rael.

11:14: Some deputies leave cell; tape ends.

LAW WEEK COLORADO

DENVER — Judicial-ouster campaign Clear The Bench Colorado, in a move to preclude further litigation against the group, has filed a request for emergency rule-making with the Secretary of State’s office.

Clear The Bench wants the Secretary of State to adopt a rule that says “a committee whose purpose is the support or opposition of the retention of a judicial seat shall register as an issue committee…” The group, which opposes all state Supreme Court justices now up for retention, registered as an issue committee on the advice of the Secretary of State’s office. Its letter to the Secretary of State is found below.

Colorado Ethics Watch, a political watchdog group that files more complaints against Republicans than Democrats, brought a campaign finance complaint against Clear The Bench, claiming it should have registered as a political committee. The state constitution says committees that support or oppose a candidate must register as a political committee, Ethics Watch argued, and judges and justices are defined as candidates.

Issues committees have no contribution limits, while individual contributions to political committees are capped.

Administrative Law Judge Robert Spencer last week dismissed Ethics Watch’s complaint, finding it “substantially groundless and frivolous” because it was filed before any justices had officially declared their intent to seek retention. Clear The Bench was awarded attorneys fees.

Now that three justices have declared their intent to seek retention, Ethics Watch plans to file an amended complaint, most likely on Monday. Clear The Bench seeks to render the amended complaint moot by getting the Secretary of State to make an official rule that the committees opposing judges and justices should register as issues committees.

The Secretary of State’s elections division will consider the request at a meeting next week, said office spokesman Rich Coolidge.

The proposed rule change would improperly override the language of the constitution, said Luis Toro, Ethics Watch’s director.

“Our position has always been and remains that judges standing for retention are candidates and political committees are committees that support or oppose candidates,” Toro said. “We think the plain language of the constitution supports the conclusion that a committee like Clear The Bench be treated like a political committee.”

Clear The Bench is not arguing judges and justices are not candidates, said Mario Nicolais, an attorney with Hackstaff Gessler representing Clear The Bench.

“Rather, the definition of ‘candidate’ is bifurcated between individuals seeking ‘nomination or election’ to a public office and judges or justices seeking retention,” Nicolais said in an e-mail to Law Week Colorado. “Only organizations supporting or opposing candidates seeking nomination or election to public office are required to file as a political committee.”

10 07 23_Ltr to SOS Re Request for Emergency Rulemaking_FINAL-1

LAW WEEK COLORADO

DENVER — The proponents of three tax-cutting ballot measures that opponents say could devastate Colorado’s economy have appealed a judge’s order to divulge the names of people who helped get the measures on the ballot, The Gazette reports.

Administrative Law Judge Robert Spencer ruled last month that the sponsors should have formed issue committees and reported financial information related to Amendment 60, Amendment 61 and Proposition 101. He also found the proponents worked with TABOR author Douglas Bruce on the measures.

The appeal says there was no evidence the proponents violated any rules.

LAW WEEK COLORADO

DENVER — Cameras will be allowed in the courtroom for Fort Collins police Lt. Jim Broderick’s advisement hearing this week, The Coloradoan reports.

A grand jury indicted Broderick for felony perjury last month, alleging he lied under oath about the investigation of the murder of Peggy Hettrick and the trial of Timothy Masters for the crime. Masters was convicted of murder in 1999 and sentenced to life in prison, but was released in 2008 after DNA evidence pointed to another suspect.

Weld County Chief Judge James Hartmann, who is presiding over the Larimer County case, said he will allow one video camera and one still camera in the courtroom.

Bar-exam test-takers crowd back into the test center at the Denver Merchandise Mart.

Story and photos by Jamie Cotten, LAW WEEK COLORADO

More than 1,000 casually dressed Colorado bar exam-takers took an hour break for lunch Tuesday on the grass and in their air-conditioned vehicles outside the Denver Merchandise Mart in north Denver. The exam runs through Wednesday.

A group of test-takers sat in a group wearing sweat pants, eating sandwiches and talking about their mornings. Eric Goltz, a University of Denver Law School graduate, said that he set four alarm clocks, and that he arrived at 6:30 a.m. — half an hour before the doors were unlocked.

Goltz’s worries were not of the exam itself, but of the time it might take to get there. “I was two miles away (driving) and thought ‘I could probably run it if I had to,’” Goltz said.

DU law graduate Eric Goltz ate lunch on the grass Tuesday with around 20 other Colorado bar-exam test-takers. The second and final day of the exam is Wednesday.