Judging the Judge
The young man in the tailored gray suit stands behind the defense table and waggles his finger at Judge R. Brooke Jackson. He's pretty full of himself, and he occasionally looks back at the gallery to see if his audience is equally impressed with his courtroom presence and vocabulary. Except for one man reading a Bible and several women attending to children, the people in the courtroom hang on every word.
Leroy Edward Valdez may look like -- may even sound like -- an attorney. But in fact, he's just an oft-convicted felon, and the chains of the belly band that will be used to secure his handcuffs when this hearing is over poke from beneath his suitcoat.
Valdez has been around enough lawyers to mimic their mannerisms, though, and he tries to lodge a few complaints this morning. His lawyers were incompetent. The judge never should have let the case get to a jury. And oh, by the way, he either wants the hearing to go forward immediately -- despite the fact that he just fired yet another public defender -- or he wants to be released on a personal recognizance bond. Otherwise, he tells the judge, he stands to lose a lot of money from an out-of-court settlement on an unrelated matter.
By this point, some judges would have told Valdez, a tenth-grade high school dropout who has convictions ranging from burglary to car theft to armed robbery on his record and whose hearing today concerns whether he will be categorized as a habitual offender, to sit down and shut up. But Jackson, whose courtroom is lined with paintings of flowers by first-graders from a Golden elementary school, listens patiently, allowing the jailhouse lawyer to have his say.
"I sometimes make mistakes," the judge finally concedes. "If so, it's up to the higher courts to correct them." But Valdez has already been convicted by a jury of several felonies, he notes, and will be spending a significant number of years in prison -- even more if he loses the current matter before the court.
So Jackson, almost pleading, urges Valdez to let him appoint another attorney to represent him. Or at the very least, appoint an attorney to act as an advisory counsel. The law is complicated, he points out, and lawyers are trained in such things as the proper way to cross-examine witnesses. "It's an art," the judge says.
Valdez shakes his head, smirking as he makes a show of arranging and rearranging the assorted notepads and papers on the defense table. "I tried the American way, and this is where it got me," he responds.
Jackson sighs. A highly paid and respected civil litigator with the firm of Holland & Hart for 26 years before his appointment to the Jefferson County District Court bench in October 1998, he is a firm believer in the usefulness of attorneys.
But Valdez insists on representing himself pro se. And so after reaffirming that the defendant understands his rights, Jackson relents. The case will not go forward this morning, however. The judge hopes that, given some time to think about it, Valdez will change his mind about that attorney.
Valdez angrily slams his notepads around. "Ethics, misconduct," he hisses at the prosecutor. "Read them their own law and they don't follow it," he complains to the deputy who places handcuffs on him.
Valdez isn't the first convicted man to whine that his lawyer burned him, that's he's innocent and that the prosecution, the cops, maybe even the judge, are corrupt. The Jeffco courts see thousands of them a year.
What makes this case different is an anonymous letter the judge received before the hearing. The message led off with a photocopied August 8 Denver Rocky Mountain News headline: "Judge wants to earn public's respect." The headline had originally run over a small article about Jackson's background and his reasons for leaving a lucrative law practice to become a jurist. But that story was only a sidebar to the main piece, whose headline had proclaimed, "Child's rapist gets break from judge."
Jackson's June 30 decision to reduce the original sentence he'd given 27-year-old Charles Brooks, who'd pleaded guilty to sexual assault on a twelve-year-old girl, had infuriated the child's father. He'd taken his complaints to the newspaper, and the result was an article that unleashed a torrent of denunciations aimed at the judge. Jackson received dozens of angry calls and letters; many more were published in the News. One woman even drove down from Loveland with her seven kids to picket the courthouse, holding signs that read: "Judge Judy or Judge Jackson?" (The Judge Judy box was checked.) More worrisome was the woman who appeared on the doorstep of the judge's home and confronted his wife.
Even this morning's defendant, Valdez, found a way to insert himself into the controversy. In his own letter to Jackson, the 34-year-old declared that he didn't deserve to spend the rest of his life in prison -- despite having served thirteen years of his adult life in prison already and having a rap sheet a half-dozen pages long dating back to his juvenile days. "If you are wondering why I'm telling you all this," he wrote, "it's because first, I believe you'll read this letter; second, I've never in my life seen a judge reverse himself, let alone one in Jefferson County!
"These actions by you demonstrated to me, a man who's fair, and a Judge who demands justice in his court, never mind mere speculation, suspicion and or conjecture."
Jackson could read between the lines -- he would be considered fair and just as long as he went along with Valdez's wishes. But this second letter went too far. Under the News headline, it declared: "In the matter of Leroy Edward Valdez, we the undersigned public assure you that unless 'DUE PROCESS' and GUARANTEED CONSTITUTIONAL rights become a consistent form of your courtroom practices, you will never earn our trust and respect." The undersigned consisted of 81 names.
The irony that the original controversy was over whether he was too lenient with a defendant while these petitioners worry that he will be too hard on another isn't lost on the judge. After a year on the bench and hundreds of decisions, the Brooks case continues to haunt him. Here it was being used to bully him into making a favorable ruling for a defendant.
Jackson considered the petition a threat. After he showed it to officials in charge of court security, an extra deputy was posted in his courtroom. But there are no outbursts this morning beyond Valdez's angry mutterings.
The judge steps down from the bench and retreats to his chambers. He never expected that this job would be easy, nor that every decision would be popular. A former college debate-team leader, he views public discourse regarding the courts as healthy, and he'd like to see more of it. The adverse reaction to the Brooks case was an anomaly, he believes, one inspired more by what he labeled sensational journalism than by a calm review of the facts.
But the Brooks decision wasn't Jackson's only act to raise eyebrows, especially over at the Jefferson County District Attorney's Office. Nor was it the first time he'd angered a victim's family, who claimed the judge cared more for the rights of the defendant than for those of their loved one.
R. Brooke Jackson was born in Bozeman, Montana, in March 1947. His parents divorced early, and he rarely saw his father, who moved to California. Brooke and his younger brother were raised in a basement apartment by their mother, "with hardly two nickels to rub together." But his grandmother, a former schoolteacher, instilled a love of books in her eldest grandson. Reading the great writers, he learned to write, and from their stories, he developed his sense of justice and fair play.
Many years later, he remembers his mother as a "totally honest, ethical, decent woman who worked very hard" at her job as a clerk in a department store. She was so intent on her boys having a good Christmas that every year she would far outspend what she could afford and then struggle the next year to stave off bill collectors while she caught up financially -- only to get caught in the same cycle the next holiday season.
As a boy, Brooke enjoyed playing sports and going camping when one of his friends' fathers offered to take him along. But by high school he realized he was never going to be a star athlete and instead applied himself to his studies and, in particular, the school debate team.
The team fit into his dream of one day becoming a lawyer. Not the kind of lawyer who spent his days buried in paperwork or planning estates, but a courtroom litigator who relied on his intellect and persuasive powers.
When it came time for college, in 1965, Jackson's first choice was the U.S. military academy at West Point. He won one of the coveted appointments but failed the physical because of poor eyesight. A childhood friend was going to Dartmouth, the alma mater of the boy's father, a professor at Montana State University whom Jackson greatly admired. Making Dartmouth even more attractive was the fact that the school would arrange whatever financial assistance he required. But Jackson's acceptance came with a tinge of sadness. His mother worked hard, but she was also an alcoholic whose condition became more obvious with each passing year; he had to fill out his own financial-needs statement and then show her where to sign.
Still contemplating a career in the Army, Jackson enrolled in Dartmouth's ROTC -- not exactly a popular choice at the time, with objections to the Vietnam War heating up by the day. He remained in the ROTC for two years, but when he had to pass a physical, his eyesight failed him a second time.
During his first few summer breaks, Jackson had returned to Montana to work as a supermarket bagger, then for the highway department testing asphalt samples. By then, his mother had gotten worse; she'd been evicted from the apartment and committed to a home. Although she often still wrote notes to him, she was past the sort of heart-to-heart discussion he would have liked. It would always trouble him that she never visited him at Dartmouth, never made it to his wedding, never met his children. But it also gave him the perspective that even good people can lose themselves to substance abuse.
After his junior year, Jackson stayed back East to work for a small New Hampshire law firm. In the summer of 1968, one of the firm's diehard liberal partners took him to Fenway Park in Boston to hear presidential candidate Eugene McCarthy speak. The Democratic senator struck him as an inherently decent and honest man, one who said what he believed even if it was unpopular. Jackson had never considered himself a very political person; when anyone asked him about his politics at Dartmouth, he'd identified himself as a Goldwater Republican, because that's how his mother had brought him up: "anti-Roosevelt, anti-Sinatra...pro-Bing Crosby and the GOP."
Listening to McCarthy, that changed. Although he would continue to think of himself as generally apolitical, whenever Jackson had to declare a party affiliation, it would be as a Democrat.
After Dartmouth, Jackson went on to the Harvard School of Law, where he again was an outstanding member of the debate team. The summer after his first year of law school, he also established a relationship with his father, whom he'd seen only a few times in his life -- and never for very long. The old man had invited him to California, but it was hardly a vacation. Jackson needed money, and he took on two jobs. He worked as a night watchman until 7 a.m., then hopped in his car for the 35-minute drive to a factory that produced armored personnel carriers for the Army, where he worked on the assembly line until 3 p.m.
Jackson was getting a good look at two contrasting worlds: one belonging to Eastern sensibilities and prestigious educations, the other occupied by workers on the assembly line, blue-collar "good guys" who worked hard, were honest and had integrity, even if they weren't the most educated folks around. Honesty and integrity -- he'd always appreciated those qualities, and he'd find them in the woman he married.
In November 1970, during his second year of law school, Jackson met Liz. A graduate of Vassar, she was working for the Harvard law school and had been assigned the task of playing host to U.S. Supreme Court Justice Byron White, the Colorado lawyer who was presiding over that year's end-of-the-semester staged trial. Jackson had wangled an invitation to the party that followed, had a few drinks and was getting a little "boisterous," Liz recalls.
She went over to find out who he was and, if necessary, keep him in line while White was around. For Jackson, it was love at first sight. He was a Protestant kid from the sticks without a penny to his name; she was Jewish, the daughter of a well-to-do manufacturer of high-end costume jewelry in New York City. She was also "the most decent and wonderful person I'd ever met," he says.
Her father worried about the couple's religious differences. "In many ways, I can't say that I blame him," Jackson says now, many years after the rift healed and he became "great friends" with his in-laws. "Inter-marriage has diluted some faiths, and that was a concern to him."
In fact, after they married in September 1971, the day before Jackson began his third year of law school, his father-in-law consulted a lawyer to see if he could get the marriage annulled. With such animosity on the home front, the couple decided that staying on the East Coast after graduation was not an option.
It so happened that the first interview Jackson scheduled was in Denver with the law firm of Holland & Hart. A friend of his from Harvard had been hired by the firm the year before and had nothing but good things to say about it. The Jacksons liked Denver, and Holland & Hart, and so when an offer was made, they decided that he should accept it and skip the other interviews he'd set up.
In 1972 Jackson began working for Holland & Hart partner Frank Morrison, one of the first major environmental lawyers in the country and a pioneer of the Clean Air Act. It was interesting work, but Morrison wasn't a litigator, and Jackson wanted to get into the courtroom.
The nice thing about Holland & Hart was that the firm didn't pigeonhole its young lawyers. And so a couple of years into his career, Jackson was "scrapping together" little cases he could take to trial. In one of these, he filed suit on behalf of a man who'd purchased an expensive retirement home in Steamboat Springs only to discover it didn't have a viable water supply. The former owners had known about the problem; they'd cheated his client, which stuck in Jackson's craw. He worked hard on the case, and the trial was an exhausting one. When closing arguments were over, Jackson went to his client's house, where he fell asleep waiting for the jury verdict. When word came from the court that the jury had reached its decision, the man woke Jackson and they headed back to court. The jury found in favor of Jackson's client.
The next morning, Jackson looked inside his wallet and found three crisp one-hundred-dollar bills and a note. It was from his client, who'd apparently slipped it into the wallet while Jackson was sleeping. The man had wanted to show his appreciation for Jackson's hard work -- win or lose -- before the verdict was in. "Take Liz out to the most expensive restaurant in town," read the note.
Jackson did just that, but even so, the couple managed to spend only $75. Jackson sent the remaining $225 back to his client. At the time, $300 was a lot of money to the rookie lawyer, and he and Liz could have used the bonus. But his integrity was worth even more. The man had said to have dinner on him, and that's all the Jacksons did.
One of the things Jackson admired most about Holland & Hart was its interest in protecting the reputation of its attorneys. The firm held mandatory classes in ethics, and the partners -- such as mentor Bill McClarn, whom Jackson describes as "one of the most decent, honorable and ethical men I've ever met" -- stressed that if a young lawyer had a question, they were always available for advice. And in his experience, Jackson says, that advice was always to do the right thing.
The right thing included encouraging the firm's lawyers to take on non-paying, pro bono cases for clients with just causes who otherwise could not afford the services of such a high-powered firm. Those cases took a lot of time, and for a law firm, time is money. But Holland & Hart not only allowed its lawyers to take such cases; the partners expected them to.
In 1979 Jackson was asked to open an office in Washington, D.C. A year later, when he returned to Denver, McClarn took him aside and said the firm was going to establish a new "plaintiff's practice," focusing on individual litigants. He asked Jackson if he wanted to take it on; Jackson jumped at the chance.
When Jackson began at Holland & Hart, practicing law was a way to support Liz and the family they hoped to have. He quickly had become a skilled and tenacious litigator, drawing on his years of debating practice. But under the guidance of such lawyers as McClarn, he'd also come to realize that the law was more than a job; it was a privilege he had to earn. There was a price to be paid for the prestige and financial rewards, and that was the obligation to be as prepared and professional for his clients as possible. Jackson looked at the new plaintiff's practice as a place where he could really make a difference in the life of a client.
It would become his own life for the next two decades.
Jackson takes pride in his accomplishments as a plaintiff's lawyer. One of his best cases, he says, was that of a young epileptic, who by all accounts was a charming young man with a bright future. One day he suffered a seizure, fell and hit his head. Subsequent bleeding beneath the skull was putting a dangerous amount of pressure on his brain, and neurosurgeons decided to drill a hole in Schmutz's skull to relieve the pressure. The surgical drill had been designed to stop automatically as soon as it no longer encountered bone. But the drill malfunctioned, piercing the skull and plunging into the young man's brain.
The result was severe, permanent damage to Schmutz's mental and physical capacities. He was going to need long-term medical care and rehabilitation -- expenses his family could ill afford.
Jackson took the case pro bono, suing both the manufacturer of the drill and the hospital, which was responsible for the drill's maintenance. He proved that the drill, which was supposed to be cleaned after each use, had been left "gunked up," which he argued caused the malfunction. Although he and his co-counsel lost the case at trial, the verdict was overturned by the Colorado Supreme Court. When the case was retried, this time by Jackson on his own, the jury came back with a $6 million judgment, which with interest and costs amounted to $11 million. (The defendants later settled for $8 million.)
Jackson's last work as a pro bono lawyer was for Linda Arndt, the former Boulder police detective who was the only officer on the scene for several hours after John and Patsy Ramsey reported that their six-year-old daughter, JonBenét, was missing. Arndt took a lot of heat in the media for having allegedly botched the case from the beginning. When she quit the Boulder Police Department, she complained that not only had her bosses, especially then-police chief Tom Koby, made no attempt to defend her in the press, but she'd been prohibited from speaking on her own behalf.
Jackson, who describes Arndt as an "excellent police detective...decorated and heroic," sued the City of Boulder on her behalf, asking that the record be corrected concerning Arndt's actions on December 29, 1996, and asking for punitive damages. Although that case is still pending in federal court, Jackson has moved on.
Last year Jackson learned that Jefferson County District Court Judge Michael Villano would be retiring in the fall of 1998. For some time, Jackson had been thinking that he would like to be a judge; to him, any lawyer who "loves being in a courtroom" would see such an appointment as the culmination of a legal career. He also thought it was a way to leave his own mark on the system.
It seemed to him that a lot of lawyers didn't like what they did for a living -- and some of that had to do with the judges with whom they were dealing. Over his 26 years of practicing law, Jackson says, he'd appeared before judges who had "a poor bedside manner...who give judges a bad name." They always seemed impatient and angry -- at the lawyers, the litigants, the witnesses -- and in his opinion, it usually wasn't necessary. Most trials were too formal and stiff, intimidating to witnesses, victims and defendants alike. But at the same time, Jackson had also noticed a marked decrease in civility in the courtroom.
Jackson talked it over with Liz. Being a judge would mean long hours, which she was already used to, but also a significant cut in his earnings. As always, Liz was supportive: If that's what he wanted to do, then he should do it. The choice was his. But, she reminded him, judges don't always make popular decisions. He would have to live with the good and the bad.
Jackson's application was accepted by the judicial nominating committee. The next step was to get through the screening. Half of the committee members were lawyers; half were lay-people. Half were GOP, half Democrat. There were slightly more women than men. The committee's job was to pick three candidates to forward to the governor -- in this case, Roy Romer.
Jackson made the cut. But there was still an "extensive" background check by the governor's staff, and that included running Jackson's name past such groups as the Hispanic bar association, the women's bar, plaintiffs' groups and judges. Then Jackson was called in to talk with Romer.
The interview lasted only half an hour, and the governor asked few questions relating to the law. For instance, Romer never questioned Jackson about the death penalty -- a much more critical issue for judges since a recent law had moved death-penalty decisions from juries to three-judge panels. If asked, Jackson would have told Romer two things: First, that he is in favor of the death penalty in "appropriate" cases, such as a particularly cruel murder; and second, that it made absolutely no difference what he thought personally, since as a judge he would be sworn to uphold the laws of the state.
By law, the governor has fifteen days to make his selection. Only a day or two remained when a Romer staffer called and asked if she was addressing "Judge Jackson."
"You're kidding," he exclaimed.
"No, I'm not," she laughed. "Congratulations."
That night, the Jacksons went out to dinner to celebrate. Liz, ever practical, surprised Brooke by saying they were going to have to cut some expenses -- and suggested he start by giving up his golf locker at the country club. "For $75 a month, you can change your shoes in the parking lot," she told him.
But that was going too far. If Jackson has a passion outside of the law and his family, it is golf. He ended up keeping the locker but agreeing to give up their six season passes to Broncos games -- not relinquishing them entirely, but selling the tickets off one season at a time.
R. Brooke Jackson was appointed to the Jefferson County bench exactly a year ago. Three weeks into his judgeship, a computer selected him to sit on the state's first judicial death-penalty panel, to decide the fate of Robert L. Riggan. At the time, he had virtually no criminal-law experience, much less experience with a murder trial.
Some of his Jeffco colleagues sympathized: Jackson had hardly had time to unpack his robes, and here he was being asked to serve on the most emotionally difficult and legally challenging case there was. Another judge suggested that there should be some sort of grace period before a new jurist could be put on such a hot seat. But Jackson didn't see it that way. He had wanted to be a judge, and making tough decisions came with the territory.
As it turned out, Riggan's hearing was postponed until April 1999. And by then, Jackson had heard more than his share of tricky cases -- and criticism (see related story, "Trial Can Be Murder").
Jackson had been on the bench two months last December when Charles Brooks entered his courtroom and pleaded guilty to sexually assaulting a twelve-year-old girl the previous spring. Jackson came down pretty hard on Brooks, giving him a mid-range sentence of ten years in prison.
Brooks's attorney had asked for probation, noting that her client had no previous criminal record. "Entirely inappropriate," Jackson responded.
But this past June, defense lawyer Jaydee McPhetres asked Jackson to reconsider. Her client, a partially deaf black man whose family claimed he operates mentally at about a third-grade level, couldn't get the sex-offender treatment he needed in prison, she said. The sign-language interpreter there was not proficient enough to be of help.
The Jeffco prosecutor, Kari Quevli, countered that Brooks was getting exactly the treatment he needed inside prison. And the victim's father pleaded with the judge not to reduce the sentence; his little girl was so traumatized that she had to sleep with the lights on. Her grades had plummeted, and she would be in therapy for years.
Brooks, too, addressed the court. In a rambling statement, he took little responsibility for his actions. He knew it was wrong, he said, but the girl invited him over. "Maybe she needs to learn more and go to school more than be with friends and going to parties all the time," he added.
At the end of the reconsideration hearing, Jackson cut the ten-year sentence to ten years' probation and two years in the Jefferson County jail, the maximum allowed, on a work-release program -- not so that Brooks could be released to work, but to get sex-offender therapy with a more proficient interpreter.
"I'm going to do something that's going to make me very unpopular," Jackson said, "but it's what I think is the right thing to do. If I'm wrong, I guess I'm wrong.
"I am very offended by what happened," he continued. "I do not see remorse. I do not see somebody who's taken responsibility for what happened...But I'm not convinced that the Department of Corrections is the answer in this case for this man.
"That is not because I think that the little girl hasn't suffered. It's not because I think that this hasn't been an outrageous crime. It's because it's my job to try to figure out what sentence fits the offense and the offender."
Saying he has a little girl of his own, Jackson added that if he were in the place of the victim's father, "I would be hopping mad right now. I'm sure he is, and I don't blame him, but it's my job to do the best I can, and that's what I see."
After the Jefferson County detentions division complained that Brooks had too high a risk of offending again to be let out on work release, even just to attend therapy, in July Jackson amended his order so that Brooks stayed in the county jail. It turned out he could still receive therapy there. "My intent was to increase the likelihood that this individual will receive meaningful treatment," he wrote in his new decision, "and that a life potentially in ruins might possibly be turned in a more positive direction."
That change did little to mollify the victim's father, however, who took his complaints to the News. The front page of the Sunday, August 8, edition carried the headline that said that Judge Jackson had been lenient with the "girl's rapist." In the accompanying story inside, reporter Sue Lindsay wrote that Brooks, a friend of the girl's sister, had come over to the family's apartment one day, found the twelve-year-old home sick from school "and raped her."
The father was disgusted by the judge's decision, he told the News. "During the hearing, the judge was asking everyone what he should do," he said. "It's like he was afraid to make the decision. He's the judge. If he doesn't know what he's doing up there, we're all lost."
Public reaction was immediate -- and vehemently opposed to Jackson's decision. "It is sad that this young girl and her family found no solace in our justice system," read one letter to the editor. "Maybe they can at least find some comfort in knowing that many of us consider this judge's decision unconscionable."
That was a letter that could be printed. The judge received much worse at his office, both via phone and mail. And one woman even showed up on the Jacksons' doorstep, berating Liz until she began to worry that the confrontation would escalate and demanded that the woman leave.
A week after the initial story ran, Jackson wrote his own piece for the News's editorial section, trying to explain his position while decrying the paper's "inaccurate portrayal" of the crime and its aftermath.
"First," he wrote, "Charles Brooks did not commit 'rape' as that term is generally understood. If he had had sexual intercourse with the young girl involved, he'd have been sent to prison for a lot longer than he was -- and he would still be there. There was inappropriate behavior and touching. The versions of what occurred and how it came about varied (the article gave only one of them). Regardless, there is no excuse for such behavior with a 12-year-old child."
By placing Brooks on probation for ten years, Jackson explained, society would actually be able to keep track of him longer; if he violated his probation, the original sentence would be hanging over him. "The sentence has nothing to do with giving Brooks 'a break.' It concerns who and what will emerge at the end of the sentence," he continued. "My judgment was that my original sentence might create a bigger problem than it solved."
The judge conceded that readers might disagree with his conclusion. "I don't claim infallibility, though I believe absolutely that this decision was the right one," he wrote. "This is a job where you make decisions every day that are likely to displease someone.
"But apart from the misfortune that this girl's ordeal has been dragged into the paper, readers should have been given a fair account of the case rather than a misleading story under a sensational headline."
Jackson ended with an invitation for the public to come watch proceedings at the courthouse, encouraging people to express their opinions to the judges. And they continued to do so -- but rarely putting the judge in a favorable light. The News ran its own editorial, noting Jackson's "sincerity, decency and heartfelt concern for the rehabilitation of the defendant." But it went on to note that "concern for a convicted criminal's future is commendable, but it shouldn't interfere with a judge's responsibility to protect public safety and impose proportionate justice."
Judge Jackson says it's unfair to judge his work based on a single case, or even a couple of cases. He invites anyone to review how he has conducted himself by looking at the opinions he has written since the beginning of the year, which are kept in a binder in his clerk's office. Unlike most judges, who often render written opinions only in major cases, if then, Jackson prides himself on writing opinions on every case.
A review of the criminal cases reveals the following:
Pevler, who had also driven during an earlier purse-snatching by Griffin, was indicted for conspiracy to commit robbery and attempted robbery of an at-risk adult. He pleaded guilty and supplied information against Griffin, who was indicted for first-degree felony murder and pleaded guilty to second-degree murder. Jackson sentenced Griffin to thirty years and Pevler to six. He recommended that Pevler attend boot camp, and if he completed that satisfactorily, the judge said, he would re-examine the sentence.
But boot camp rejected Pevler because of the violent nature of the crime. Still, Pevler asked the judge to reconsider. He'd cooperated with authorities "from the beginning," he said, and had been a "diligent, studious and repentant inmate" during his seven months in prison.
Jackson noted that the victim's brother had originally suggested that Pevler receive probation and community service rather than prison due to the defendant's age and secondary involvement. However, the judge noted, Pevler had not cooperated with the authorities from the beginning, but only after investigators traced the car to him; in addition, "he was aware of what was happening and did nothing to prevent it."
Deputy District Attorney Dennis Hall objected to any reduction in Pevler's sentence. To do so, he said, would "deprecate the seriousness of the harm" Pevler helped cause.
Noting that Pevler claimed to have "learned his lesson, changed his attitude and was ready to become a productive citizen," Jackson wrote in July, "I have yet to see a motion for reconsideration that did not feature these kinds of assurances. However, the degree of sincerity sets them aside to some extent.
"I do not take this position lightly, particularly coming from Mr. Hall, in whose judgment I have considerable confidence. Nevertheless, Mr. Pevler has persuaded me that at a minimum he deserves a hearing."
Santistevan wanted it reduced, saying he was attending classes in prison and had a "new attitude" toward drugs. Jackson commended him for his schoolwork and new attitude but said, "I do not find substantial grounds to modify" the sentence.
The words Jackson uses to describe the people he has loved and admired in his life -- words like honest, ethical, hardworking, honorable -- are the same words those people and others use to describe him. Many also throw in "brilliant."
Richard Crawford met Jackson at Holland & Hart in 1988. A longtime jury consultant, Crawford is a specialist who helps lawyers pick jurors and prepare for trials. He's seen thousands of lawyers at thousands of trials and describes his friend as "intellectually a giant...a brilliant legal mind...who works very hard in preparation. The same strengths I think he will have as a judge."
In ten years, Jackson never lost a jury trial, Crawford says. "But he was always fair-minded -- no shortcuts or cheap shots or trying to win through trickery or deviousness...He has weaknesses, but he faces them and admits them. He can be tough as nails on the opposition because he's so good, but he's always straight with everybody. He's very straight up as a human being."
From what he's seen of him on the bench, Crawford says, Jackson is a balanced and patient judge. "He will put up with a lot that would try the patience of another judge. That's because he wants to be fair."
It's not that he and Jackson always agree on the issues: Crawford is vehemently opposed to the death penalty, while Jackson believes in it. They've had many lively debates on the topic. "I don't agree with him on this," Crawford says, "but I respect him and know where he's coming from...he's concerned for the community and doing what's best to protect the social order."
If the state is going to have a death penalty, Crawford adds, then having someone of Jackson's caliber on the panel "is the second-best thing. He will weigh the crime and reflect on the ramifications to the community and still be compassionate and fair in what he decides."
That also explains Jackson's reasoning on the Brooks case, Crawford says, adding that they haven't talked much about it. "You won't find him deciding cases thinking, 'This will make me popular.' He'll do what he thinks is right, regardless."
During the death penalty hearing for Robert Riggan last April, some on both sides of the aisle wondered if Jackson was attempting to retry the case when he suggested a couple of his own theories about how the murder could have happened. (Jackson says he "just wanted to understand, if I was going to have to possibly sentence a man to die.") He repeatedly interrupted the lawyers' opening and closing statements and asked questions of both lawyers and witnesses.
Defense lawyer Nathan Chambers fought frequently with the presiding judge, Frank Plaut, during that first trial. Jackson surprised him with his knowledge of the case. "He knew the issues," Chambers says, "And frankly, it was comforting to see someone up there who was so well-informed...He was just asking questions so he could understand. That man is sharp."
The three-judge panel voted unanimously to spare Riggan the death penalty -- a decision even the district attorneys had expected going into the hearing. The jury had hung on the count of first-degree murder after deliberation, with its all-important wording that the murder was committed "intentionally," and instead found Riggan guilty of only felony murder. Technically, that qualified him for potential death penalty, but no Colorado jury had ever voted for it under similar circumstances, and these judges didn't, either. Riggan was sentenced to life without parole.
Jackson wrote the opinion for the panel. "Our system of justice is based upon the jury system," he wrote. "Just as we must have tremendous respect for a jury's verdict of guilt or non-guilt, we must have respect for the fact that the jury that heard the evidence in this case was divided and deadlocked on this enormously critical issue.
"We note and take comfort in the fact that the only available alternative is a life sentence without the possibility of parole. Mr. Riggan was convicted by the jury of first-degree felony murder. It is, in our view, entirely appropriate that he be removed from society and pay a price that, at least in the view of some, may even be more severe than death itself.
"But a civilized society should not and cannot take the life of a human being, even one who commits an especially heinous, cruel and depraved offense, if a jury could not conclude beyond a reasonable doubt that the individual intentionally administered the fatal injury. Our values must be different than that."
After-hours in his office, two days before the Valdez hearing, Jackson is defensive. His first question to a reporter: "So, is this going to be a hatchet job on me like the last one?"
The public's reaction to the News piece surprised him and also hurt him. While he points out that some of the responses praised him for standing up for what he thought was right, he admits that most of the calls and letters were critical. Many labeled him as some kind of effete liberal snob from the Ivy League, comments that clearly rankle.
In conversation, Jackson works to counter that image, perhaps unintentionally. He's a poor kid from Montana. Played sports. Tried to get into the Army. Worked at a blue-collar job and "liked the guys."
One of his proudest moments, Jackson says, was his 1993 induction into the American College of Trial Lawyers, a group that comprises many of the country's best trial lawyers. You can't just join; you have to be nominated by the members. "They place a huge emphasis on character and integrity," he explains.
Jackson is one of the most accessible judges in the Jefferson County courthouse. He's friendly in the hallways and likes interacting with the public. He surprised the people who'd criticized him over the Brooks decision when he called them back and tried to explain his position. "We don't necessarily agree, but at least they know I gave it a lot of thought."
He's still thinking about it. The public's perception is based more on the newspaper's slant than on the facts, he says. He accuses the paper of misleading the public by using the term "rapist" and saying Brooks "raped" the girl when, as he pointed out in his editorial reply, "there was inappropriate behavior and touching."
But the truth of the matter is that while Brooks did not complete the act of sexual intercourse, he was guilty of more than just inappropriate behavior and touching. By his own admission, he'd placed the head of his penis inside the girl's vagina and only then decided he'd better not go any further.
But even some of Jackson's detractors concede that Jackson was trying to look at the long term when he sentenced Charles Brooks -- trying to help him before prison turned him into a more dangerous monster. And he says he's not soft on crime.
The month after the Brooks decision -- before it exploded in the press -- Jackson sentenced a man who had exposed himself to a little girl and offered her money to watch him masturbate to the maximum for the crime: twelve years. There was no touching at all in that case, he points out, but the pre-sentencing report indicated that the man had once raped a young girl and had spent ten years in prison for that crime. By contrast, Brooks had no prior record for sexual assault and held a steady job.
"Maybe I made a mistake," Jackson says, "but despite what I've just been through, I'd make the same decision. If I didn't, what kind of judge could I be?"
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