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.

Garnett contends that the commission relied heavily on its phone survey of attorneys, including Handley, which was weighted two-to-one in favor of defense attorneys: five public defenders, five prosecutors and five private attorneys who'd represented defendants in Hufnagel's criminal cases. "If we're going to have a commission evaluating how judges are doing, we need to be sure they're doing surveys in a statistically appropriate manner," says Garnett, who heads the litigation department at Brownstein, Hyatt, Farber & Strickland, one of the city's most powerful law firms. "The public has a right to know what they're basing it on."

But Greg Fasing, the chair of the Denver Judicial Performance Commission, says it's "utter nonsense" to characterize the report as the work of the defense bar. Four of the panel's ten members are lawyers--including Fasing, a former assistant attorney general--but none are criminal-defense attorneys. Phone surveys were conducted as part of the research on Hufnagel and C de Baca because of a computer glitch involving written questionnaires sent out earlier this year to attorneys, Fasing explains, but the survey was only a "minor tool" used in the overall evaluation--which also involved observing court proceedings, interviewing judges and inviting them to submit self-evaluations.

"If that telephone survey had not occurred, I don't think that would have had any effect on the vote," he says. "Every judge was treated exactly the same. There was no distortion, no twisting of the results. Judge Hufnagel wasn't singled out in any way."

For the most part, Fasing points out, the panel's inquiries prompted it to recommend retention, even in the case of jurists with less than spotless records, such as Paul Markson (a district judge convicted of drunk driving in 1994) and Andrew Armatas (a county judge who filed for bankruptcy in 1995). Hufnagel's poor rating is consistent not only with the 1990 report but with the results of written attorney surveys conducted in 1992 and 1994--neither of which were used in compiling the latest report, at Hufnagel's request.

Not surprisingly, her colleagues have closed ranks in support of Hufnagel, the current president of the Colorado Trial Judges Council. Three weeks ago Fasing attempted to have a one-page summary of the commission's recommendations distributed around the Denver City and County Building. The move was protested by attorneys hired by C de Baca and Hufnagel, who argued that the commission's own rules permitted only the full "narrative profiles" of judges to be circulated; Chief Judge Connie Peterson, a close friend of Hufnagel's, refused to allow the sheet in the courthouse, claiming that it amounted to "campaigning."

Fasing then requested that the court administrator make copies of the profiles with the summary attached as a kind of table of contents. But court personnel whited out the offending summary--prompting a heated letter from Fasing to Judge Peterson decrying the effort to censor the commission.

Her defenders say that even if the report's characterization of Hufnagel as rude and autocratic is accurate, that's no reason to throw her off the bench. "She doesn't suffer fools lightly, but I think she's good," says former prosecutor Nathan Chambers. "There are judges who don't take charge, who let lawyers do whatever the hell they want--and these people invariably get high ratings."

"She's chewed my butt out on numerous occasions, but I usually deserved it," adds ex-deputy district attorney Bill Buckley. "I think she's getting a bum rap. There are judges who shouldn't be on the bench--not because of temperament, but because they don't know the law and they can't make decisions. There's a lot worse things going on than her being a little bit rude to lawyers."

Her critics, though, insist there's more to Hufnagel's bad rating than a little bit of rudeness or even her supposedly tough sentencing, which is more lenient in some cases than her nickname--"Hang 'em High Hufnagel" --suggests. The problem, they say, has to do with a judge who possesses not simply a mean streak but a disturbing habit of prejudging cases; a judge who mocks, intimidates and humiliates lawyers and witnesses in front of juries in order to get the verdict she wants; a judge whose vaunted efficiency masks a snarling impatience with proper procedures designed to protect the rights of litigants; and worst of all, a judge who has exceeded her authority on numerous occasions, leading to costly appeals, reversals and untold misery for the parties involved.

Several attorneys declined to comment on their experiences with Hufnagel, citing fear of retaliation the next time they appear in her courtroom. Others, though, point to matters of record in various civil and divorce cases--including one notorious example, in which a struggling taxi company was held virtually hostage in her court for almost three years--as proof that the controversy isn't just about how Hufnagel deals with criminals. The real issue, they say, is her brand of justice.

"Fair? She's about as fair as a rattlesnake," says one attorney. "You never know who she's going to hit next. If she found out I was talking to you, I'd be finished."

Public defender Handley figures he has nothing left to lose by speaking out. "I represent people, a lot of times, who've done awful things," he says. "And I know some people think defense lawyers are sleazy, and therefore, anything you do to them is good. But where are we, as a society, if we have people on the bench who don't trust jurors to sort out the facts and are manipulating the process to secure the outcome they want? Why should we let that happen?"

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