By Joel Warner
By Michael Roberts
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Hufnagel does enjoy a strong rapport with jurors; she drafted the jury-reform legislation that established one-day/one-trial juror service in Denver and raised the pay for jurors from $3 to $50 per day. But Handley believes she goes out of her way to sway them by requesting that attorneys waive their right to appear when the jury is first called in--thereby giving her more time alone with them--and by other tactics, such as torpedoing efforts to dismiss jurors "for cause," something attorneys routinely try to do during the selection process by eliciting a series of responses from candidates that reveal their underlying biases.
"She'll say, 'Ma'am, this lawyer just asked you a series of leading questions'--in other words, this guy just put words in your mouth," he says. "Then she'll ask a series of questions as leading as anything an attorney might ask. Not only has she rehabilitated the juror, she's shown the whole panel that you are not to be trusted."
Handley also takes issue with the judge's practice of quizzing plea-bargaining defendants on the details of their crimes. Virtually all judges will ask a defendant if he agrees with the facts as presented by the prosecution before accepting a guilty plea, but Hufnagel is known for conducting exacting inquiries into the accused's behavior and motives. A guilty plea involves some waiver of the right against self-incrimination, Handley notes, but he describes Hufnagel's interrogations as a "rub-your-nose-in-it approach" that can prolong a case rather than settle it.
"If she isn't satisfied with their rendition of what happened, she'll say something smug, like, 'Oh, it looks like you need a trial,'" he says. "Or she'll refer to the defense, in open court, as 'crazy' for exercising the right to go to trial."
In one case, Handley recalls, he represented a man who'd been charged in a domestic dispute with violating a restraining order and burglarizing his ex-wife's house. Based on the evidence she saw, Hufnagel didn't see the case as complicated, he says, but Handley's client was adamant that he didn't commit the burglary.
"We go to a motions hearing, and the judge was, I thought, extremely rude," Handley says. "She was mocking me and the motions I filed and asking me why I couldn't be more like Bob Ransome or Larry Posner--lawyers she likes. She asks my client if he wants the [plea] offer, and he says he didn't do anything. And she got angry with that. 'Oh. You didn't do anything. Fine.' She was mocking his decision to go to trial."
The case was tried by another judge, who reversed Hufnagel's decision to allow evidence of earlier violent acts by the defendant unrelated to the burglary charge. At trial, Handley's client was able to provide a strong alibi for the time of the burglary. "The jury was out ten minutes before they acquitted him," Handley says. "She had totally prejudged the situation."
One startling example of the judge taking an active, somewhat prosecutorial role occurred this past summer, in the course of an otherwise minor case of a Hispanic man charged with purchasing food stamps illegally. The man managed to post his $2,500 bail, but Judge Hufnagel ordered him held in the Denver County Jail pending clarification of his immigration status. Holding a suspect without bond, particularly in a nonviolent offense, is unusual, to say the least; defense attorney Jim Castle obtained an order from the Colorado Supreme Court requiring Hufnagel to show cause within five days why his client should not be released. When Hufnagel didn't respond to the order, the Supreme Court ordered the man's release on bond. Hufnagel then doubled the amount of the bond.
In court filings, Castle charged that Hufnagel's office contacted the bondsman in the case, who then asked to be excused from the bond arrangement. (The bondsman, Joe Moreno, says he doesn't recall the court clerk contacting him but had heard from other sources that the defendant might jump bond.) Castle also claimed that Hufnagel personally contacted federal immigration authorities in an effort to have his client held for deportation, then raised the bond to $5,000 over the objections of both the defense and the district attorney.
"The Court's actions, taken as a whole, indicate that the Court is treating aliens differently than citizens in her courtroom," Castle wrote, asking that Hufnagel step down from hearing the case. "The Court's active and extrajudicial role in attempting to obtain the desired detention suggests that the Court is biased and prejudiced against aliens."
Hufnagel declined to recuse herself, which would have required her to certify the case (and the grounds for her recusal) to the Supreme Court. Instead, she "voluntarily" reassigned it to another courtroom while acting in the stead of Chief Criminal Judge Warren Martin, who happened to be out of town that day. ("The result's the same, but that way you don't have to admit you were unfair to anybody," Castle notes.) Castle's client eventually made the higher bond and received probation from another judge; according to Castle, he's still in town and working on his visa problems.
But claims of bias arising out of the case don't stop there. On the same day that Hufnagel learned that the higher court had ruled against her on the bond issue, a trial began in her courtroom in which Castle's wife, public defender Lisabeth Castle, was representing a man charged with assaulting a police officer. According to a motion filed by Liz Castle, Hufnagel abruptly reversed herself on key rulings she'd already made, hampering the defense's case.