Motion to Dismiss

Should Judge Lynne Hufnagel be benched? Ask the bankrupt cabbies, bullied witnesses and banished lawyers who've tasted her bitter brand of justice.

Attorney Tom Handley remembers the case: a hand-to-hand drug deal behind Argonaut Liquors on East Colfax. Another lawyer in his office had worked out a routine plea bargain with the prosecutor that would have given their client a low-level felony conviction and probation. But before the deal could be sealed, back in the final weeks of 1994, Denver's District Court judges rotated courtrooms, and the case landed in the lap of the Honorable Lynne Marie Hufnagel.

Handley, a public defender since 1990, had never appeared in front of Judge Hufnagel before. He quickly learned that Hufnagel doesn't simply sign off on sentencing agreements; many judges don't, in fact, but Hufnagel is particularly protective of her right to decide what a sentence should be. She told Handley his client could either withdraw his guilty plea or affirm it, without any promises as to the consequences.

The defendant balked. Handley told the judge his client would rather take his chances at trial--and was met with an icy glare from the bench. "That made her angry, obviously," Handley says. "The control thing is really big in that courtroom."

Handley and Hufnagel then got into a testy exchange over how quickly a trial had to be scheduled in order not to violate the six-month "speedy trial" requirement. "She said it was up to me to decide what the trial date would be," Handley recalls. "That's not true. Finally, she said to me--this was Friday--'All right, I'll see you Monday for trial.'

"I worked all weekend. We had a motions hearing on Monday, and we started trial on Tuesday. My client was acquitted. And it made her so angry! You could tell she was upset about it. I think she even called in sick the next day."

Handley could take little comfort in the victory. Public defenders, like judges and prosecutors, are assigned to certain courtrooms, and he knew that he would be seeing plenty of Hufnagel in the future. "That was the moment that I knew," he says, "that I was in a lot of trouble in that courtroom."

A few weeks ago Handley found himself in even deeper trouble. He was one of fifteen attorneys who'd participated in a phone survey concerning Hufnagel conducted by the Denver Judicial Performance Commission, a state-sponsored, independent panel that evaluates judges up for a public vote of retention. (In Colorado, district judges must receive a 50 percent "retain" vote in the general election every six years to remain on the bench.) Although the survey was supposed to be confidential, Hufnagel was able to identify Handley when she reviewed the survey results based on some commentary he'd provided about one of his many disputes with the judge over the past two years. On the Friday before Labor Day, she summoned Handley's supervisor, deputy state public defender Cyrus Callum, to her chambers.

"She said, 'I want him out of here by Tuesday,'" Callum says. "Then she said something like, 'If he's not happy about being in here, there are five or six other courtrooms that he could go to.'"

Given the circumstances, Handley says, Hufnagel was right to recuse herself from hearing any more cases in which he's involved. But he also believes that the way it was done--a private meeting with his boss, followed by summary banishment without appeal--says volumes about the "judicial temperament" of the woman many attorneys regard as the most feared judge on Denver's bench. "This whole thing demonstrates why it was recommended that she not be retained," he says.

Handley isn't the first attorney to be barred from practicing in Hufnagel's courtroom, but he may be the last. For the first time in its six-year history, the commission has recommended that two Denver judges not be retained in the November election: Lynne Hufnagel and County Judge Celeste C de Baca. The commission's findings have been embraced and reviled in Denver legal circles, but it's the sharply negative evaluation of Hufnagel--a savvy veteran who's presided over numerous controversial, high-profile cases during her fifteen years on the bench--that has generated the most debate.

Although Hufnagel received a strong approval rating from jurors and some courthouse personnel, the commission concluded that she is "seriously deficient in important areas of judicial performance." Attorneys surveyed ranked her high on her knowledge of the law, independence and efficiency, but they gave her generally low marks for her sense of justice, compassion, courtesy and other characteristics relating to judicial decorum.

In 1990--the last time she was up for a retention vote--Hufnagel received similarly dismal appraisals and acknowledged to the commission that "some lawyers and law enforcement officers view her as arrogant, discourteous, impatient and otherwise lacking in judicial temperament." She stated that she was "committed to working on those problems" and received a 5-4 recommendation for retention. But this time around, the ten-member commission (none of whom served on the 1990 panel) concluded that "the serious deficiencies recognized in 1990 remain...[and] are far below any reasonable norm that should be expected of a district judge."

Judge Hufnagel declined Westword's request for an interview. But various supporters--including several prosecutors, fellow judges and Denver Post columnist Bob Ewegen--have rallied in her defense, charging the commission with flawed research, a bias against women judges and worse. With Hufnagel's blessing, former prosecutor Stan Garnett and Boulder assistant district attorney Bill Wise (who's married to Denver prosecutor Diane Balkin) have formed a committee to campaign for her retention. They claim that the negative report is the work of "a handful of criminal-defense attorneys" who want to boot the judge because of her tough sentencing record.

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