Beyond Contempt

A judge and a prosecutor in Gilpin County are after a new breed of criminals: jurors and defense attorneys.

On September 3 the jury found Tyrrell guilty of three counts of felony menacing. Barnhill asked Peterson if bondsman Keener would be willing to continue the bond. Peterson replied that he'd spoken to Keener the previous Friday and that Keener told him he intended to carry the bond even if Tyrrell were convicted. The judge had the option of ordering Tyrrell to wait in a holding cell until Keener was able to provide written confirmation of his intent to continue the bond. Instead, Barnhill simply told Tyrrell to remain in the courthouse until Keener showed up. Both Peterson and Tyrrell then paged Keener to inform him of the development; they asked him to call them at the court clerk's phone number.

When Keener finally answered the page hours later, Peterson wasn't in the clerk's office. But Tyrrell was. And after a short conversation, Keener told Tyrrell he didn't want to remain as the bondsman unless Tyrrell could come up with another co-signer who was willing to put up real estate to insure his appearance at sentencing. "It was a spur-of-the-moment judgment call," Keener says. "And it turned out to be a good decision."

Tyrrell hung up the phone and fled the courthouse. He is still at large.
When questioned by a sheriff's deputy about the bond and Tyrrell's disappearance, Keener told the officer he'd never spoken with Peterson about continuing Tyrrell's bond, contradicting what Peterson had told the judge. "I guess he was looking out for his client," Keener says today of Peterson's verbal assurance to Barnhill. "I think he just assumed I would agree to stay on it."

Peterson won't comment on the case on the advice of his attorney, Paula Greisen. But Kriho attorney Paul Grant says he finds it hard to believe that Peterson would have lied to the judge just to protect Tyrrell. "Why on earth would you risk your career?" he asks. However, Stanley and Burback contend in their contempt motion that Peterson's "affirmative misrepresentation" about the bond allowed Tyrrell to escape. If the lawyer had told the judge that he hadn't talked to Keener, they implied, Tyrrell would have been taken into custody rather than set loose in the courthouse.

Two months after the trial, on November 4, the prosecutors filed a motion asking that Peterson be charged with contempt of court. Burback says he and Stanley brought the charges themselves; despite Barnhill's clashes with Peterson during the trial, he says, the judge didn't demand the contempt action.

Barnhill's clerk says the retired judge refuses to comment on pending cases. But he did sign a contempt order, meaning he found Stanley and Burback's complaints viable. Because he has stepped down, Barnhill will not hear the case. Stanley, however, is still slated to prosecute Peterson.

Burback says he and Stanley feel that contempt charges are appropriate because "enough things added up before and after trial that we felt some action should be taken." The prosecutors could have complained to the state Supreme Court if they felt Peterson's actions warranted discipline, Burback acknowledges, "but we felt the trial court should address it first."

"It was a very hard decision to make," Burback continues. "It's certainly something we don't do lightly."

And the case could have heavy implications for Peterson. Burback suggests that he and Stanley may even ask the court to put the former prosecutor behind bars. The court, he notes, could impose "a fine, imprisonment or both, or [demand] a letter of apology. We're not asking for more than six months in jail."

If Peterson is found guilty, the case would be referred to the Supreme Court's disciplinary committee for further action, which could include disbarment. And the high court, says Truman, "does not take contempt lightly. It is serious business. Just the word 'contempt' sends chills down an attorney's spine."

Truman and Pozner say that even though Peterson might have made mistakes, they find the charges against him extremely troubling.

"I'm worried," says Pozner. "Some of these [complaints] are minor-league. If they didn't like what he'd done with the subpoenas, they could have picked up the phone and said, 'Hey Titus! I got a problem with this.' You don't go for contempt.

"Rude to the judge?" asks an incredulous Pozner. "Judges can take care of themselves. They know exactly how far they can let you go. It's presumptuous of [a prosecutor] to say, 'Don't worry judge, I'll protect you.' The judge can iron out the situation right there."

Grant says he thinks contempt charges are inherently dangerous because they pit the judge and the prosecution against a defendant as a team. However, in the past, Barnhill and the district attorney's office haven't always worked well together.

District Attorney Dave Thomas, whose jurisdiction covers Jefferson and Gilpin counties, recently asked the state Supreme Court to remove Barnhill as the sentencing judge in the case of William Lucero, convicted last fall of killing three people when his vehicle slammed into a casino-bound bus. Lucero had been drinking and using drugs the night before the crash and could face a prison sentence of up to 300 years.

But, according to Thomas, Barnhill told a probation officer that Lucero was "law-abiding" and "a nice guy." Barnhill has resisted Thomas's efforts to take him off the case. In a statement he read in court last November, Barnhill said the district attorney was simply upset with him because he wouldn't bow to the DA's demands.

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