Beyond Contempt

Members of the legal community were surprised and angry three months ago, when Gilpin County District Judge Kenneth Barnhill and prosecutor Jim Stanley had the temerity to try a juror for criminal contempt of court after she declined to convict a defendant in a drug case. The action, considered by some attorneys to be an attack on the jury system itself, was debated in local papers and in national law journals.

Now Stanley and Barnhill are focusing on another target. Last fall Stanley filed, and Barnhill signed, a second set of criminal contempt charges--this time against a defense attorney who is a former state prosecutor. Charged in the case is former Clear Creek County Deputy District Attorney Titus Peterson, who got on Stanley's bad side during a case tried before Barnhill last summer. If found guilty, Peterson could end up spending six months in jail and lose his license to practice law.

It's a highly unusual case, say observers, not only because criminal contempt filings are rare, but also because the district attorney's office, not the judge, apparently initiated the action. Stanley and fellow prosecutor Bradley Burback have accused Peterson of, among other things, being rude to Barnhill--a transgression normally dealt with by judges themselves, not by the prosecutors who practice in their courtrooms.

The entire episode has unnerved local defense attorneys. If this type of prosecution catches on, cautions Parker attorney Paul Grant, who defended juror Laura Kriho in the earlier contempt case, "it will be hard to be aggressive or assertive in the courtroom. When the judge or the district attorney starts to get irritated, the defense will recognize it as a situation where they could be prosecuted. It poses a very dangerous threat to the right to counsel.

"If this goes to trial," adds Grant, "there are going to be a lot of attorneys in the audience." The gallery could include prominent Denver defense attorneys Larry Pozner and Craig Truman, who say they're concerned about the precedent that could be set if Peterson is convicted.

Criminal contempt filings and felony charges against lawyers surged during the Reagan-Bush years, notes Truman, but that was mostly in eastern states like Virginia and Florida, where accusations ranging from perjury to witness tampering surfaced, often in drug cases. "We don't see much of it here," Truman says of the charge, "which is why it stands out."

Barnhill, who retired last week after nearly a decade on the bench, and Stanley, who's spent most of his fourteen-year legal career as a prosecutor for the judicial district that includes Jefferson and Gilpin counties, were the subject of unflattering headlines last year when they went after Kriho.

Kriho, of Nederland, was a member of a jury impaneled in the case of a nineteen-year-old defendant charged with possession of methamphetamine. When Kriho retired to deliberate in the May 1996 case, she went armed with the knowledge (gleaned from the Internet) that the defendant could face a four- to twelve-year prison term if convicted. That in itself was a violation of rules that declare that jurors should remain blissfully ignorant of the consequences of their findings.

Kriho also entered into deliberations while holding to the belief that drug cases were best handled by families and communities, not the courts, a position that may have been reinforced after her own arrest on drug charges twelve years earlier.

Kriho was the only juror to vote for acquittal, a fact that angered the others on the panel. They complained to Barnhill, who declared a mistrial. The judge and Stanley, who had prosecuted the case, reportedly were furious.

Barnhill's anger didn't come as a huge surprise to some courthouse regulars, who say that in the months preceding his retirement, the judge had become increasingly "irascible" and had taken to haranguing potential jurors. He'd also begun handing down eccentric sentences. In the 1995 case of a man who opened fire on employees of a Jefferson County pawnshop, killing two and seriously injuring a third, Barnhill ordered that the defendant live in a cell with the victims' photos and a videotape of the crime and that he be forced to listen to replays of the 911 call for help made by one of the wounded men. That sentence was overturned earlier this month by the Colorado Court of Appeals, which ruled that Barnhill had exceeded his authority in imposing the unusual punisments.

After declaring the mistrial in the Kriho case, says defense attorney Grant, Barnhill asked Stanley to conduct a probe of possible juror misconduct. That led to the filing of the contempt citation.

Under Colorado statute, there are two types of contempt--direct and indirect. Direct contempt occurs in the presence of the judge and can be dealt with immediately, often by the judge issuing a warning or a fine. "If you say, 'Excuse me, your honor, but screw you,' that's direct contempt," explains Truman. Indirect contempt results from matters occurring outside the courtroom. Failing to comply with a court order, for example, could constitute indirect contempt.

In his July brief asking that Kriho be charged with criminal contempt, Stanley accused the juror of misleading the court about her beliefs concerning drug laws and about her own 1984 prosecution for possession of LSD. "If we let something like this go," Stanley told a reporter for the National Law Journal, "the whole process would be in danger."

The Journal noted, however, that criminal law experts had been "startled" by Barnhill's action. And Grant and jurors'-rights advocates argued that the only thing being endangered was the right of jurors to think for themselves. Some of Kriho's supporters criticized the judge and prosecutor for what they said was a vindictive act.

Defendants in contempt cases have no right to a jury trial; the hearing is before a judge only, even though the accused can be sent to jail if found guilty. Barnhill was set to hear the contempt charges against Kriho, but after a request from Grant, he reluctantly recused himself from the case in favor of Chief District Judge Henry Nieto. Stanley remained as the prosecutor.

Nieto presided over the two-day contempt hearing in early October. As of last week, he still had not rendered a verdict.

While the Kriho case was heating up last summer, Titus Peterson was trying one of his first cases as a newly minted defense attorney in private practice. Peterson, who attended the University of Colorado law school, was admitted to the Colorado bar in 1990 and hired on as a prosecutor in Georgetown shortly thereafter. He ran for a state Senate seat as a Democrat in 1994, garnering just 35 percent of the vote in a losing effort against Golden Republican Sally Hopper. Though opponents have referred to him as a "passionate man" who can be subject to emotional outbursts in court, Peterson has never been publicly disciplined by the Colorado Supreme Court, which governs the conduct of Colorado attorneys.

Peterson's client in last summer's case, Dennis Tyrrell, wasn't an easy assignment. He faced three counts of first-degree assault on a police officer, three counts of felony menacing, and one count each of criminal mischief and third-degree assault, all of which stemmed from a single domestic incident. Black Hawk police told prosecutors that Tyrrell and his girlfriend had been fighting; during the altercation, a glass table was broken and the woman was cut. When officers arrived and told Tyrrell he was under arrest for domestic violence, he reportedly picked up a jagged piece of glass and wielded it as a weapon.

"He made a statement that they were not going to take him out of there," says prosecutor Burback, who was assigned to the case along with Stanley. "He said, 'If you take me out, it will be in a body bag.' He was threatening enough that the officers drew their weapons, and eventually one officer decided to shoot the glass out of [Tyrrell's] hand, which he did." (The bullet also shattered Tyrrell's hand; he was hospitalized after the arrest.)

Peterson took the case at the request of a woman who worked in the Idaho Springs office building where he had set up his private law practice. The woman was a friend of Tyrrell's and had put up her house as collateral for his $50,000 bond. Russ Keener of Central City Bail Bonds had agreed to carry the bond.

Peterson entered his appearance as counsel for the defendant on June 10. Within the space of a month, he'd managed to aggravate Stanley and Burback. Peterson, the prosecutors argued in court, had tried to mislead Gilpin County Sheriff's officers into believing they had to serve subpoenas for Peterson. (Peterson had sent the department an unsigned judge's order requiring it to serve the papers and attached a note requesting that officers "speak with the judge if there is a problem.")

In August, Peterson attempted to personally serve a subpoena on a victim's advocate he wanted to call as a defense witness. Attorneys aren't supposed to serve their own subpoenas. This, too, made the prosecutors' complaint list.

Stanley and Burback also took offense when Peterson subpoenaed several people for a pre-trial hearing in August and then did not call them to testify. The lawyers brought that complaint to Barnhill, who told Peterson to be more specific in issuing his subpoenas so as not to make witnesses wait unnecessarily. The prosecutors claim in their motion for a contempt citation that Peterson disregarded the judge's order, forcing witnesses to cool their heels in the courthouse yet again.

Barnhill also sided with prosecutors when he ruled that Peterson--who had planned to introduce evidence of alleged police brutality by Black Hawk police officers--could not question witnesses about the officers' reputation. In fact, many of the judge's rulings went against Peterson at the pre-trial hearing. At one point, the prosecutors charge, a clearly frustrated Peterson demanded of the judge, "Why don't you just find him guilty right now?" Barnhill dressed Peterson down for the outburst and warned him that such behavior would not be tolerated in his court.

The trial began August 27, and it didn't go much better for Peterson than had the pre-trial hearing. On at least two occasions, Stanley and Burback claim in their motion, Peterson and the judge exchanged unpleasantries, with Peterson threatening to ask that Barnhill be sanctioned for insulting him.

The prosecutors grew angry at trial when Peterson asked his client, "And you had reason to fear the Black Hawk police, didn't you?" That, Stanley and Burback later complained in their contempt motion, "was a blatant attempt...to thwart" Barnhill's earlier ruling that allegations of police misconduct were off-limits. (Defense attorney Pozner says Peterson's apparently improper question may have been cause for an objection, but doesn't appear to him to rise to the level of contempt.)

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.

A pre-trial conference in Peterson's contempt case is set for January 24. If it proceeds to trial, Peterson's old boss, Clear Creek County District Attorney Pete Michaelson, says he expects to be called as a character witness. Peterson, the DA says, "was a good prosecutor and was successful in most of the cases he tried."

Peterson did have "some problems," Michaelson admits. "He tended toward lateness, which is an irritant. And he did have battles with one particular judge--now retired. But then, all of us did."

Michaelson says he has filed contempt charges against a fellow attorney only twice in his career as a prosecutor. "Sometimes you feel an opponent has crossed the line," he says. He withdrew the charges in one case; the other, Michaelson says, "is dying of old age" because he neglected to pursue it.

But the DA says he hates to see his old friend caught up in similar circumstances. "If he did what they said, I guess he needs to be punished," says Michaelson. "But if he did what they said, I will be tremendously disappointed and sad to hear it.

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