Arapahoe County's district attorney race could prove a lethal election
For Ethan Feldman, the siren's call came as he presided over his courtroom in Arapahoe County, watching a procession of newly stamped prosecutors making tentative efforts to process an increasing logjam of cases.
"It was clear that there were excellent attorneys in that office, but a lot of them had left, too," Feldman says. "Someone needed to make some changes. I was kind of curious to see who would step up. Then I thought, with the experience I've had over the years, I'm the guy."
At the end of last year, after serving almost exactly twenty years as a county court judge, Feldman stepped down from the bench to run for district attorney in the 18th Judicial District — the largest district in Colorado, representing four counties (Arapahoe, Douglas, Elbert and Lincoln) and nearly a fifth of the state's population. He's the first judge to run for DA in the 18th since Marty Miller did so half a century ago — and if he wins, he'll be the first Democrat to hold the office since Miller.
Related stories by Alan Prendergast from the Westword archives:
Sucker Punch: Big Bitch policy could bite fighting concertgoer, May 22, 2012.
"Welcome to Arapahell, November 24, 2011.
Carol Chambers under fire for giving witness a car in death-penalty case, May 13, 2011.
Perez acquittal: A stunning rebuke of Chamberss death-penalty chase?, February 2, 2011.
The Good, the Bad and the Mad: What happens to the mentally ill in the justice system is crazy, May 29, 2008.
Bad Execution: Judge blasts prosecution misconduct in death-penalty case, April 10, 2008.
Arapahoe County DA charges death-penalty fees to the state, February 28, 2008.
A Thumb on the Scales: The DA weighs in on the wrong case, February 8, 2007.
Carol Chambers: The Punisher, February 8, 2007.
For George Brauchler, the lure of the DA's office began four years ago, when he launched an upstart campaign against District Attorney Carol Chambers in her bid for re-election. The incumbent won that race but is now term-limited out of office, and her anointed successor lost to Brauchler in this year's Republican primary. Now the contest is between Feldman and Brauchler, a former Jefferson County prosecutor who's also a lieutenant colonel in the Army Reserve.
"I have the energy, the vision, the leadership to take this office where it should be," Brauchler declares. "For the last few years, it's been an island unto itself."
That's one way of putting it. Long recognized as one of the most hard-nosed prosecution teams in the state, the DA's office went into punitive overdrive under Chambers. While many other district attorneys seemed to be shying away from the death penalty, considering it all but defunct in Colorado, she sought the death sentence for half a dozen defendants and got it twice. She filed habitual-criminal charges against hundreds of chronic but low-level offenders, pushing for multi-decade sentences for crimes that in other jurisdictions might result in a year or two in prison ("Welcome to Arapahell," November 24, 2011). She also filed grievances against defense attorneys, berated county commissioners over her salary, ordered her staff to time judges' breaks, paid bonuses for meeting a quota of convictions at trial — and was publicly censured by a judicial disciplinary board for interfering in a civil case.
It's not unusual for DAs to groom their successors from within the ranks; although she was considered the dark-horse candidate when she ran in 2004, even Chambers came out of the entrenched culture of the 18th, having worked as a prosecutor for fourteen years by that point. Brauchler's primary defeat of Leslie Hansen, Chambers's top assistant, guarantees that whoever takes over next year will be the first outsider to lead that office since the 1960s. The new broom will face the challenge of dealing with the controversial legacy of the Chambers years — and an office that now finds itself in a national spotlight over the pending high-stakes trial of James Eagan Holmes, the suspect in the Aurora theater shootings that left twelve dead and injured dozens of others.
Despite all that baggage, the Brauchler-Feldman race has been, for the most part, civil to the point of blandness. At a seemingly endless series of meet-and-greets and debates, both men have pushed their ample qualifications, including experience handling high-profile criminal cases as prosecutors and defense attorneys. Both have vowed to end the high turnover among the DA office's 72 attorneys and to make the operation more efficient. And both men have declined to talk about whether they would pursue the death penalty against Holmes, deferring to the current district attorney and a gag order in the case.
Yet there are key differences between the candidates, beyond their party affiliation — which may matter less than in past years in the traditionally Republican 18th. Their views about justice, for example, have been strongly shaped by the cases they've taken on over the years. In Feldman's case, that involves prosecuting some horrendous criminal defendants in the 1970s and defending others in the 1980s while in private practice, followed by his long tenure on the bench. Brauchler, too, has branched out beyond his comfort zone, albeit in a different direction — from prosecution duties in Jefferson County (including pushing for prison sentences for the gun suppliers of Columbine shooter Dylan Klebold) to court-martial proceedings as a military prosecutor to civil and defense work.
There's also the matter of age. Feldman is 64; Brauchler is 42. In debates, Feldman has stressed his edge in actual trial experience, while Brauchler has presented himself as the more innovative, dynamic candidate, someone who pioneered the use of PowerPoint in Jeffco criminal cases and now trains other prosecutors in how to be effective.
"He uses the word 'energy' about five times per forum," says Feldman of his opponent. "In his view, I'm old. And he has this bizarre claim that he's the outsider and I'm the government. He's trying to run as the consummate outsider."
Brauchler has been known to say "I don't come from government" — a curious statement from someone who's spent a decade as a county prosecutor and many years serving in the Army Reserve, including two mobilizations. His larger argument, though, is that Feldman has been part of the judicial bureaucracy in Arapahoe County for decades.
"I have no doubt that his motivations to be DA are because he thinks he can improve the office," Brauchler says of Feldman. "But the last time Ethan tried a case, Barack Obama was a teenager. My guess is that he hasn't ever used PowerPoint. That's why my experience, versus experience that's 32 years old, makes a difference."
Feldman bristles at the notion that his years in private practice and on the bench don't count. "His theory is that in 1980 I left the DA's office and ran away to the circus, then came back last year to run for DA," he says. "He's actually denigrating my whole career. But I tell the truth about my career."
As the race enters its final weeks, Feldman has gone on the offensive, accusing Brauchler of exaggerating and distorting his record. Brauchler denies the charge and suggests that Feldman is misleading voters by touting his judicial experience, since most cases in county court involve misdemeanors, bond hearings and traffic matters, in contrast to the life-and-death decisions confronting a district attorney in a place as besieged as the 18th.
In other words, both candidates are beginning to act a lot like prosecutors.
George Brauchler first learned about prosecutorial politics in 2008, when he challenged the incumbent district attorney for her seat. It was his "trial by fire," he says. He started out looking for someone to support, a Republican bold enough to run against Chambers — whose husband, defense attorney Nathan Chambers, also happened to be the head of the GOP in Arapahoe County. When he couldn't find one, he was persuaded to take on the mission himself.
"The response from the entrenched supporters [of Chambers] was visceral," he recalls. "I had people put their finger in my chest and say, 'Who do you think you are?' I told them I'm a guy who wants to improve the DA's office."
Brauchler has always had a strong sense of who he is and who he might become. The son of a systems analyst and a federal civil-rights investigator, he grew up in a Lakewood household where "there was no mocking or making fun of people who were weaker than you," he says. He attended the University of Colorado on an ROTC scholarship and interned at the Jefferson County DA's office while still in law school. He began working there as a twelve-dollar-an-hour deputy, handling misdemeanors, and gradually moved up to more complex cases.
He credits his mentors in that office, including Chief Deputy DA Steve Jensen and Brian Boatright, now a Colorado Supreme Court justice, with influencing his own approach to prosecution. "You work with people who have a real sound sense of justice, and you start to look at the system differently," Brauchler says. "It's not just about convictions. It's not just about locking people up."
Sometimes, he learned, it's about knowing when to take a case to trial and when to settle it. His first sexual-assault-on-a-child case remains a touchstone of sorts; there was no physical evidence to support a five-year-old girl's confused account of being molested by a neighbor during bizarre "games" staged at his house, but Brauchler believed the victim and found the accused's explanations preposterous. A jury agreed.
"On paper, that was a case that was ripe to be plea-bargained away," Brauchler says. "But no plea bargain was appropriate. If you believe you have the right guy, and the victims are on board, you still go to trial. It's not going to be CSI all the time, but I'm never going to plea-bargain out of fear. I want people who aren't afraid to go to trial if it's the right thing to do."
By contrast, Brauchler describes the case against Mark Manes and Phil Duran, the seller and middleman in the deal that provided a TEC-9 to Columbine killer Dylan Klebold, as one that didn't need to go to trial. Brauchler was second chair in the case to Jensen, who hammered out plea deals that netted a six-year prison sentence for Manes and 54 months for Duran. Some victims' families were outraged that the penalties weren't more severe — but prosecutors were also accused of scapegoating the pair, since the killers were no longer alive to take the blame. At Duran's sentencing, Brauchler urged the judge to "send a message" about illegal gun sales by sending Duran to prison rather than probation.
"The easiest thing to do with these guys would have been to pile-drive them into the ground," he notes. "But we could achieve justice for the community by having them plead guilty to what they did and not seek to stack the charges. Nobody was truly happy with it. But we're accomplishing justice here."
In 2001, Brauchler left the DA's office, eager to start a family — he and his wife now have four children — and drawn by the prospect of higher earnings at a medical-malpractice defense firm. The job didn't work out as he'd hoped: "I went from being the second chair on Columbine to sitting behind a computer, going blind doing discovery letters, working for a partner, billable hours, all that. It was painful."
Shortly after the 9/11 attacks, Brauchler was hired as a deputy district attorney in the 18th. He was only on the job a few days before his Army Reserve unit was mobilized. When he returned from active duty, he accepted an offer to resume work in the Jeffco DA's office. He left again in 2006, this time to join the law firm of Caplis & Deasy; he is now listed "of counsel" for Feldmann & Nagel, a firm he helped to launch two years ago. (Although he occasionally filled in for his associate Dan Caplis on KHOW, as well as other hosts on that station and KOA, Brauchler's forays into talk radio stem from winning a contest on Peter Boyles's show in 2005, before he went to work for Caplis.)
Taking on civil litigation and even some criminal defense work has helped Brauchler see how the other side works, he says. He recalls defending one case involving two brothers involved in a bar fight in Steamboat Springs, in which another brawler hit his head and died. Brauchler was reluctant to take the case because the alleged victims were soldiers, but as he learned the facts, he became convinced the state had overcharged his clients.
"I would be a far better prosecutor today than when I left the DA's office in 2006 because of my experience as a defense attorney and a civil attorney, seeing things from different angles," he says.
Brauchler was mobilized again last year, which gave him an opportunity to serve as a military prosecutor with the Judge Advocate General's Office in Iraq and at Fort Carson. Instructive as they may have been, his frequent moves between the public and private sector have also fueled attacks by his opponents, who question his commitment to a prosecution career and wonder why he never achieved a chief deputy position at Jeffco. Brauchler insists that his departure from Jeffco was motivated by a better offer from Caplis & Deasy, not frustration with his lot. "It's hard to turn down opportunities that you think are going to make things easier at home," he says.
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After his surprisingly strong challenge of Chambers four years ago, Brauchler returned to take on Leslie Hansen in the primary this year, only to be denounced as an "empty suit" by the Hansen camp. But Brauchler fought back ably, defending his record and expressing alarm at Hansen's stated intention to keep Chambers as one of her top aides, engaging in what he calls a game of "musical chairs in the corner office."
Hansen lost that game. Brauchler now bills himself on his campaign website as the choice for "Experienced Conservative Leadership for District Attorney," complete with a snapshot of the candidate in fatigues, taken last year in Iraq.
If Brauchler is the conservative in the race, that makes Feldman the moderate, if not the dreaded L-word. But Feldman says prosecution should be above politics. When he went to work for Bob Gallagher, the Republican who ran the DA's office in the 18th for 26 years, nobody asked him about his party affiliation or his personal ideology. Instead, Gallagher summoned him to his office to explain his "guidelines."
Prepared to take notes, Feldman brought a legal pad to the meeting. Gallagher told him to put it away. "These are the guidelines," he said. "Do the right thing. Now get to work."
The lesson wasn't lost on the young deputy. "Prosecution is prosecution," Feldman says now. "Experience is what matters."
The son of a medical physicist and a therapist, Feldman grew up in Colorado. He received his undergraduate degree at Northwestern and his law degree from the University of Denver. Like Brauchler, he began interning for the district attorney's office while still in school; Gallagher hired him as a deputy district attorney as soon as he passed the bar in 1974.
He moved quickly from county court cases to juvenile court, where he helped to launch the 18th's pioneering diversion program, to the chief deputy responsible for major crime prosecutions. By his count, he handled around seventy jury trials as a prosecutor, including eleven homicide cases that went to trial.
"I remember all of them quite well," Feldman says. "You don't forget the faces of the victims or their families."
The crimes were indelible: an eight-year-old girl killed across the street from the courthouse in Kiowa, by drifters her parents had taken in. A woman kidnapped and raped by a neighbor, who killed her companion and left her for dead in a field; shot five times, she crawled half a mile to the nearest house and later testified against her attacker from her hospital bed. ("Her will to live — that's what stuck with me," Feldman says.) A fatal child-abuse case against a stepfather that involved uncovering an escalating cycle of violence to persuade a jury that the child hadn't simply fallen down stairs.
Feldman credits Gallagher with establishing a strong victim-advocacy system within the DA's office long before the state passed its victims'-rights legislation. The candidate's wife, Nancy Feldman, helped to launch the Sungate Children's Advocacy Center and now heads the Office of Victims Programs in the Colorado Department of Public Safety. Seeking justice and aid for crime victims "has been in our family DNA for some time," he says.
Feldman left Gallagher's office in 1980 to go into private practice. "I wanted to broaden my horizons, to be a complete lawyer," he explains. Like many ex-prosecutors, he often found himself defending the same sort of people he used to put away.
"People asked how I could represent somebody like that," he says. "My answer was always, How could I not? They're entitled to representation."
In 1991, Governor Roy Romer named Feldman as a county court judge. Over the past twenty years, voters have elected to retain him five times. His judicial performance evaluations, based on surveys of attorneys, witnesses, jurors and others who have seen him in action, have consistently been among the most positive in the district, giving him particularly high marks for fairness. Brauchler points out that many of the thousands of felony cases he's "handled" while on the bench come down to some preliminary processing before they shift to district court, but Feldman notes that he's conducted more than 250 jury trials and served as an acting judge in district court on several occasions as well.
His decision to step down and run for district attorney only a year into his latest term is unusual, Feldman concedes: "I was at the height of my judicial career. I could have stood for retention three more times."
But from his vantage point on the bench, Feldman could see the spreading miasma emanating from the DA's office. "The main problem was that cases weren't being resolved as quickly as they could be," he says. "Cases were taking eight months that could have been resolved the same way after two months. The people didn't seem to have the confidence to resolve them, and with the turnover, there were people who didn't have as much training or experience. Things were getting backed up."
Like Brauchler, Feldman had first been approached in 2008 about running for DA — but he didn't consider the timing right. Last fall, after some reflection on the matter, he decided it was. One of his declared priorities is to improve the training and retention of the district's prosecutors; Chambers "was really good at hiring good people," he says. "The problem is that they wouldn't stay. I want people to stay."
As a Democrat, Feldman would seem to have the longer odds in the race, but the 18th isn't the Republican lock it once was. Governor Bill Ritter prevailed among voters in the district in 2006, and Senator Mark Udall barely lost there in 2008. Chambers herself barely won re-election that year, squeaking by with a 23,000-vote margin out of more than 387,000 votes cast, against a Democrat who was not only barely funded, but a defense attorney, to boot.
Neither candidate is spending lavishly in this election, each having raised a campaign chest of between $75,000 and $100,000. But Feldman's long career in the judicial system has earned him an impressive array of endorsements from both sides of the aisle, including his former boss Gallagher (Republican); Brauchler's former boss, Dave Thomas (Democrat); Boulder DA Stan Garnett, Adams County DA Don Quick and Denver DA Mitch Morrissey (all Dems); and dozens of other former prosecutors and judges. Brauchler has garnered endorsements from several police unions and law enforcement officials, including the sheriffs of Douglas, Lincoln and Elbert counties, but Arapahoe County Sheriff Grayson Robinson, a Republican, is backing Feldman.
Feldman hopes that voters, too, will look past blue and red in weighing his qualifications. But he and Brauchler are both facing an unforeseen development in the race, which may now come down to their views on the death penalty — and who the voters think will fare best in what could become an epic battle to try, convict and execute the man who opened fire in a packed Aurora theater last July.
The closest thing to a donnybrook at the Brauchler-Feldman debates broke out a few weeks ago, when Feldman politely brought to Brauchler's attention a factual misstatement on his campaign website.
The statement, which Brauchler says he didn't write, claimed that he had "successfully taken to trial challenging cases such as the solicitation for murder of a sheriff's deputy by a jail inmate, a homicide committed by a fake naturopathic doctor, the murder of a captured detainee by a U.S. soldier, the felony cases from the Columbine tragedy, and many others."
Feldman points out that only one of the cases mentioned, the murder-for-hire case, resulted in a trial verdict. The soldier, David Lawrence, accused of shooting a captured Taliban commander in the face, pleaded guilty. So did the Columbine gun traffickers. The ersatz doctor copped a plea during jury selection.
Brauchler told Feldman he'd fix the error. Weeks later, the claim was still on the site; it was finally amended after Westword inquired about it two weeks ago. "This is language I didn't draft, but language I'm responsible for," Brauchler says.
At the same time, he regards Feldman's objection as so much hair-splitting. Both the Columbine case and the Lawrence case received extensive publicity, so it's not like he was trying to fool anyone, he says. And he still considers the doctor's case as one taken "to trial," even though that prosecution ended before any evidence was presented.
Outside the world of prosecutors, the tiff over cases going to trial may not seem that meaningful. But it highlights a deeper disagreement between the two camps, over which candidate has the more pertinent hands-on experience prosecuting murderers — particularly in potential death-penalty cases.
Both candidates say they have the resolve to seek the ultimate penalty when warranted. Yet their actual brushes with the procedure are quite different. Feldman has been involved in two cases in which the death penalty was on the table — once as a prosecutor, once as a defense attorney. While working for Gallagher, he sought execution for a janitor who'd killed a receptionist at an Aurora hospital and then had sex with the corpse. A sanity hearing failed to win the defendant a ticket to the mental hospital, but on the eve of the criminal trial, Gallagher agreed to a plea that included a life sentence.
A few years later, Feldman defended Ross David Thomas, a New Mexico prison escapee facing execution for the murder of an Aurora liquor-store clerk during a robbery. Feldman was successful in excluding evidence of other crimes Thomas had committed during his rampage, including a kidnapping and two other shootings. Thomas was convicted, but he was spared execution after Feldman argued that the death penalty wasn't fairly applied in Colorado. He received a sentence of life with parole.
Brauchler wonders how his opponent could make such a strong case against the death penalty as a defense attorney and now be expected to pursue it. But Feldman says the state's approach to execution has changed greatly since Thomas went to trial in 1983. "The legislature has fine-tuned the process," he says. "There's thirty years of legal precedent, quite a body of law that has cleared up a lot of things."
Only one offender has been executed in Colorado in the past four decades, and state lawmakers came within one vote of abolishing the death penalty in 2009. Despite the cost and delays involved in the process — Chuck E. Cheese killer Nathan Dunlap, who's been on death row for nearly twenty years, may finally be executed next year — Feldman says he'd have no problem seeking death in particularly heinous cases. "You make a decision on the evidence and the strength of the case, not extraneous factors," he says. "When I was a judge, I never took into account whether the jails were overcrowded in determining a sentence. That's for the executive branch to figure out."
Brauchler, too, says he's in favor of keeping the death penalty as an option in the most serious cases — though he suspects he'd use it differently than Chambers, who stated an intention to seek death for the trigger man in a murder-for-hire case and then relented after obtaining a life sentence.
"I don't want the death penalty to go away," he says. "But I also believe these are not charges to be used to scare somebody into pleading guilty. It's not to be used as a tool."
Court records indicate that Brauchler had only two homicide cases that went to juries while he was a Jefferson County prosecutor — and in one of those, the charge wasn't murder, but solicitation to commit murder, the case of the inmate who was snitched out in his effort to find someone to kill a deputy over a bad haircut. The records aren't complete, but Brauchler doesn't dispute them; he says he doesn't "count coup" over the cases that actually went to trial. He has been involved in other serious prosecutions as a JAG officer, including the private who shot the Taliban detainee and a vehicular-homicide case at Fort Carson last year against a soldier whose drunk driving caused the death of his two passengers. But only one had the potential to be a death-penalty case.
In 2006, Brauchler was asked to assist in the court-martial of Jeffery White, an Army truck driver stationed in Hawaii who was accused of beating and strangling his ex-girlfriend, then running her over with her car. "I got a call from the deputy judge advocate, asking me to take all of my reserve time — it added up to like six weeks — and help out," he says. "I was a brand-new major, and they put me on this would-be capital case because of my experience."
Brauchler's involvement was limited to the Article 32 hearing, a procedure akin to a preliminary hearing, during which the prosecution advocated for the death penalty, stressing evidence of calculation, torture and brutality in White's actions. He wasn't around for the actual trial, when prosecutors obtained a life sentence for White after a general's decision not to pursue death.
"I've never said I went to trial on a death-penalty case, because that's not true," Brauchler explains. "But if you want to know our hearts and minds on the death penalty, this is a case where I thought the death penalty was appropriate, and I went to court and asked for it."
The lead prosecutor on the case, David Clark, says that he and Brauchler were "probably on the same page" in urging death but were overruled. "I don't recall the command ever taking a serious look at the death penalty," says Clark, now an attorney in private practice in Alabama. Still, Brauchler's brief involvement in the case made a lasting impression on him, he adds: "He absolutely blew me away with his legal skills. I definitely looked to him as a mentor."
Last week, Feldman and Brauchler met at a restaurant off Dry Creek Road for the last of their many debates. Members of the Douglas/Elbert Counties Bar Association listened as the two talked about more efficient case management, improving technology and training, and building morale and adhering to high ethical standards. The discussion was thoughtful, earnest and without rancor.
But there was no escaping the inevitable questions about the death penalty. Feldman talked about the janitor and Ross Thomas. Brauchler described the brutal actions of Jeffery White.
And so it went. Two officers of the court, gentlemen of the law, each eager to prove he has the steel and resolve to screw his courage to the sticking point — to be ready, when the time comes, to prosecute a case to death.
Related stories by Alan Prendergast from the Westword archives:
“Sucker Punch: ‘Big Bitch’ policy could bite fighting concertgoer,” May 22, 2012.
“"Welcome to Arapahell,” November 24, 2011.
“Perez acquittal: A stunning rebuke of Chambers’s death-penalty chase?,” February 2, 2011.
“ Bad Execution: Judge blasts prosecution misconduct in death-penalty case,” April 10, 2008.
“Arapahoe County DA charges death-penalty fees to the state,” February 28, 2008.
“ A Thumb on the Scales: The DA weighs in on the wrong case,” February 8, 2007.
“Carol Chambers: The Punisher,” February 8, 2007.
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