Mutual Contempt

A special prosecutor has dismissed criminal contempt charges against Idaho Springs attorney Titus Peterson, bringing to a close a case some lawyers had characterized as a threat to the state's entire defense bar.

"I think the special prosecutor did the right thing," says Peterson's lawyer, Paula Greisen. "These charges should never have been filed."

Adds Peterson, "Justice was done."
Peterson's case was controversial--and highly unusual--because prosecutors in the Gilpin County District Attorney's office took it upon themselves to ask for the contempt charges. Generally, such filings are initiated solely by a trial court judge.

The brouhaha began last summer after Peterson signed on to defend Black Hawk resident Dennis Tyrrell, who'd been charged with 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. Tyrrell was one of the first defense clients for Peterson, who had only recently stepped down as a deputy district attorney for Clear Creek County.

Gilpin County deputy district attorneys Jim Stanley and Bradley Burback were assigned to prosecute the case ("Beyond Contempt," January 23). They were crosswise with Peterson from the beginning, and things only got worse when Tyrrell's trial began last August. According to the motion Stanley and Burback later filed asking for a contempt-of-court citation, Peterson was rude to Gilpin County District Judge Kenneth Barnhill and attempted to circumvent his rulings. In addition, Stanley and Burback claimed, after the jury found Tyrrell guilty of the felony menacing counts, Peterson lied to the court about the status of Tyrrell's bond, which allowed Tyrrell to escape. (Peterson told Barnhill that a bail bondsman had agreed to continue Tyrrell's bond in the event of a conviction; the bondsman denies striking such a deal. Tyrrell is still at large.)

Two months after the trial's end, the two prosecutors asked Barnhill to sign a motion they had drafted charging Peterson with criminal contempt. The judge did. If found guilty, Peterson could have been jailed for up to six months and could have been stripped of his license to practice law.

Members of the Colorado defense bar leapt to Peterson's aid, arguing that the charges against him posed a serious threat to the judicial process. If Peterson were to be successfully prosecuted for being rude and angering the prosecution, they argued, defense attorneys would become afraid to aggressively defend their clients.

"Certainly there have been times when an attorney--for the defense or the prosecution--has been admonished by judges," Greisen says. "And certainly there have been times when it is evident that an attorney committed ethical violations or flat out lied to the court. And in those cases, charges may be appropriate. But this case is radically different from anything I've ever seen.

"The original prosecutors chose to do what the court chose not to do," Greisen adds, "in essence usurping the [judge's] role to control his own courtroom. They took the word of a bail bondsman who obviously had an interest, motive and bias against the word of an attorney of high repute and an impeccable record, who had been a prosecutor as well as a defense attorney. It appears that the original prosecutors allowed their own personal motives to play a part in the decision."

It might have become a more personal prosecution had Stanley been allowed to try the contempt case, as was originally planned. However, Greisen, citing the prosecutor's conflict of interest, was successful both in having Stanley thrown off the case and in getting a special prosecutor assigned. The case then landed in the lap of Denver chief deputy district attorney Diane Balkin.

The decision about whether or not to prosecute "was difficult for me," Balkin says, "and it was only made after careful review of the contempt citation, the accompanying documents and transcripts, and interviews with all the essential witnesses.

"At the conclusion of my review," she continues, "I felt it would be in the best interest of justice to dismiss the contempt citation." Balkin submitted her motion to dismiss on June 2, the same day Peterson was to appear at a motions hearing.

Balkin's action, however, doesn't represent a complete vindication for Peterson. The Denver prosecutor says she believes Stanley and Burback were not being vindictive when they asked Barnhill to sign the contempt citation and that they had valid complaints against Peterson. In her motion, Balkin merely pointed out that state law provides a different venue for addressing complaints against attorneys: the state Supreme Court's disciplinary committee. Peterson says he expects the prosecutors to now take their complaint to that body.

Peterson and Greisen nonetheless reacted to Balkin's decision with relief. "I have full confidence that when justice is finally, truly done in this case, it will be sweet, although it may be later than I had hoped," Peterson says. "I don't want to go as far as saying that I'm going to drag everybody through the court system. But there will be some repercussions from all of this for all of those who have made unfair and untrue statements against me."

The official comment from Stanley and Burback came via a spokeswoman for their office. "We respect the decision of the Denver District Attorney," says Aura Leigh Ferguson. "However, we really do feel that we had a case that we could have taken to a successful conclusion. [Balkin] had two more months to gather information, and that apparently left her with the impression that it wouldn't be successful. That must have been due to new information that came to light."

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Karen Bowers