Victory for Attorney Threatened With Jail for Talking to Westword

On March 11, a federal court judge found subsections of the Colorado statute collectively known as the Children's Code to be unconstitutional, largely on First Amendment grounds. The far-reaching order, which is expected to necessitate new legislation to address the issue, sprang from a lawsuit filed around fifteen months ago against Denver District Attorney Beth McCann and Colorado Department of Human Services Executive Director Michelle Barnes by attorney Jessica Peck, who faced the prospect of being jailed after speaking to Westword for a January 2019 story.

The article's subject: a mother at risk of having her toddler daughter taken away from her by the state because she supported her ex-husband, accused murderer John Affourtit.

Peck was represented in the case by Killmer, Lane & Newman LLP. As attorney David Lane sums up the situation, Peck "tried to blow the whistle on some grossly incompetent government employees of the Department of Human Services, charged with protecting children from child abuse. A judge threatened her with jail if she divulged any aspects of the reports on the case." Lane credits attorney Tom Kelley, one of Colorado's most acclaimed First Amendment experts, for achieving what he sees as "a huge win for transparency in government and in protecting abused kids from further abuse at the hands of incompetent government bureaucrats."

But the work doesn't end with the win. "We have to rewrite our law, which is both exciting and challenging," says Peck. "Now's when the hard work begins."

The case against Affourtit began on September 25, 2018, when police and medical personnel responded to a report of a child not breathing in an apartment on the 900 block of South Dahlia Street that he occupied with his girlfriend and her three-year-old son, Jeromiah. The boy could not be revived, and after the Denver Medical Examiner's office determined that his death was the result of physical harm, Affourtit was arrested and charged with two counts of murder in the first degree for a child under twelve/position of trust and child abuse resulting in death.

A subsequently released affidavit revealed that Affourtit, who was unemployed and had been watching Jeromiah while his mother was at work, told authorities that the boy had recently been sick and suffered head injuries after falling into the bathtub. Law enforcement officials didn't think this story adequately explained Jeromiah's wounds, which included a possible shoulder dislocation and suggested that an infection in his abdomen that was the likely cause of death had been caused by abuse. Moreover, Affourtit had a previous mark on his record: In 2011, he'd allegedly violated a protection order involving a former girlfriend.

Nonetheless, his ex-wife saw "alternate explanations" for the cause of death, in part because there were no injuries to her daughter, who was at the apartment when Jeromiah's health crisis took place. As Peck told us in 2019, this stance led the mother to become the target of "a dependency neglect case, where the government can exert its authority and power to take my client's child — and they're threatening to do that. They argue that my client has failed to demonstrate adequate protective capacity, which under statute would allow DHS and Child Protective Services to obtain custody."

Among the justifications for such action was the claim that the mother put the girl on the phone with Affourtit after his arrest, in potential violation of a protective order, as outlined in an email Peck provided to Westword. Peck says the alleged phone call between Affourtit and his daughter "never occurred."

As noted in the March 11 ruling by U.S. District Court Judge R. Brooke Jackson, the juvenile court magistrate subsequently issued an order stating that "Counsel for Respondent Mother...may have disclosed confidential identifying information to a non-party" — a criminal offense under Colorado law.

Neither the Denver DA's office nor the Colorado Department of Human Services took action against Peck in connection with that order. But because of what she saw as a chilling effect on her right to free speech, Peck filed suit against McCann and Barnes in their official capacities, and Judge Jackson found that the two passages of the Children's Code related to punishment for either a Class 2 petty offense (a fine of not more than $300) or a Class 1 misdemeanor (a minimum six months in jail or a $500 fine) "fail strict scrutiny and are therefore unconstitutional." As a result, he granted Peck's motion for summary judgment and enjoined enforcement of the two passages.

Last year, Peck says, "I tried working with a group of lawmakers to modernize the Colorado Children's Code, but when COVID struck, that was put on the back burner, for obvious reasons. Now I hope we can get back to it — and my hope is that it won't take a federal lawsuit to do it. All different aspects of the statute need modernization, and this is only one small part of it."

The prosecution of Affourtit has also been slowed by the pandemic (no trial has taken place yet), but his ex-wife still has custody of her daughter, and it's Peck's understanding that the girl is safe, healthy and thriving. She believes the only reason that Colorado failed to take custody of the mother's child "is because she had a vigorous legal defense — and I have no idea how many other mothers and daughters out there don't have the same luxury. That's what keeps me awake at night."

Carolyn Tyler, spokesperson for the Denver District Attorney's Office, offers this comment about the order: "At stake was an obscure legal provision that our office has never sought to enforce. The reality is that the court’s ruling will have zero impact on our ability to enforce violations of criminal law. It was our job, however, to defend the constitutionality of the statute, and yesterday the federal district court concluded that the law was overbroad in violation of the First Amendment."

The viewpoint shared by the Colorado Department of Human Services' Madlynn Ruble covers more ground.

"The Colorado Department of Human Services takes the privacy and safety of children and families very seriously," Ruble states. "We are disappointed with the court’s order holding that the criminal provisions within the Children’s Code Records and Information Act are unconstitutional. Colorado’s legislature passed these provisions years ago to protect a child and family’s right to privacy when involved in the child welfare system. Keeping reports of child abuse and neglect confidential in their entirety, except where a professional or agency has a legal right to know, is key to protecting the privacy of vulnerable children and their families. We are currently weighing our options for next steps."

She adds: "While the court’s order prohibits the state from enforcing criminal liability for violating confidentiality, it does not make child abuse and neglect records open or public. We remain committed to protecting the privacy of children and families, and encourage anyone who is concerned about the safety and well-being of a child or youth to call the Colorado Child Abuse and Neglect Hotline at 844-CO-4-Kids."

Click to read the order in the case of Jessica Peck v. Beth McCann, et al.

This post has been updated to include comments from the Denver District Attorney's Office and the Colorado Department of Human Services.