Monday, May 23, 2022

"A Splenetic Pattern Of Posturing, Threats And Personal Attacks"

The Colorado Presiding Disciplinary Judge found that a state court prosecutor had misused his powers, revoked a previously-imposed probation and suspended him for six months.

The probation involved violations in a private practice matter.


Respondent engaged in a splenetic pattern of posturing, threats, and personal attacks while serving as a prosecutor, abusing the power of his office. Because this behavior prejudiced the administration of justice and intimidated third parties, violating Colo. RPC 4.4(a) and Colo. RPC 8.4(d), he breached the probationary condition requiring him to refrain from committing further rule violations. His probation should thus be revoked.

One incident involved threats to a probation officer

Under the preponderance of the evidence standard, the Court concludes that Respondent violated Colo. RPC 8.4(d) during the hearing of March 19, 2021. He interrupted the proceeding, attempting to arrogate to himself the power to control the information before the judge; indeed, his captious approach threatened to deprive the court of Gonzales’s perspective. Moreover, by petulantly warning that he might decline to prosecute the probation revocation matter—simply because Gonzales had provided her opinion at the court’s request—he risked jeopardizing public safety.

Respondent’s comments to Gurule on March 23, 2021, violated Colo. RPC 4.4(a). During that conversation, which Gurule initiated in the wake of the March 19 hearing, Respondent darkly intimated that he could open a criminal investigation against Gurule. The Court sees no purpose in this self-aggrandizing statement other than to bully and burden Gurule. The Court also credits Gonzales’s concern that this intimidation tactic undermined collaboration between the prosecutorial and probation offices and made her job more difficult.

And a defense counsel

A month later, when Miller presented the same plea, which Respondent’s supervisor, the elected district attorney, personally approved, Respondent again objected. He then implied that he would penalize Miller’s other clients based on Miller’s conduct in the case. These remarks were so inappropriate that the presiding judge admonished Respondent, characterizing them as “highly, highly unethical.” In leveling these threats, Respondent had no substantial purpose other than to harass Miller and perhaps to attempt to improperly coerce him into withdrawing the petition.

An unrelated matter over a miscommunication concerning a court appearance

According to [attorney Jones' assistant] Underwood, Respondent hardly allowed her to speak. He yelled and accused her of improper behavior and communicating ex parte with the court. Jones called Respondent that same day, November 18, to address the situation. Jones reported that Respondent continued his pattern of behavior, including by speaking over Jones and accusing him of ex parte communications with the court. Jones also remembered that Respondent said to him, “don’t worry, I’m not going to grieve you.”


When [client] Tate and his counsel  [Jones' partner] failed to appear at the hearing, Respondent hectored both Underwood and Jones. Though they attempted to interject and explain what had occurred, Respondent yelled at them and accused them of improper or unethical behavior, though he mentioned that he would not file a grievance against Jones. These diatribes served no substantial purpose other than to berate Underwood and Jones.

Later that day, the court recalled the case. During the hearing, Respondent requested that the court issue a warrant for Tate’s arrest. He did so even though he knew Tate had been told not to attend the hearing. Respondent’s “volatile and outrageous” conduct so disquieted Jones that he asked the court to appoint a special prosecutor, reasoning that Tate could not receive a fair trial with Respondent helming the prosecution. Only after the district attorney assigned the case to a new prosecutor was the motion rendered moot. The Court finds that Respondent’s behavior in this matter prejudiced the administration of justice; it necessitated Jones’s motion, as it raised the question of whether Respondent might punish Tate for Underwood’s miscommunication with court staff.

(Mike Frisch)

Bar Discipline & Process | Permalink


I'll admit to using the "look-up" feature for splenetic and captious. Impressive.

Posted by: Kevin | May 25, 2022 10:18:38 AM

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