Friday, October 1, 2010

On Winking Judges

I was the Craig City Attorney in 1993-94. In Sept. 1993, a crazy county court judge sent the sheriff to my office to arrest me for contempt for closing a real estate contract the City had every right to close. I was under no court order not to close it, although there was a private party, a stranger to the contract, who had sought a TRO to stop it.

So I spent four months being hauled through contempt proceedings in Craig and Steamboat Springs. The City hired Larry Pozner to defend me. (I chose him as my attorney, even though I'd had Larry for Criminal Procedure at DU Law School and thought he was often unprepared for class. He had a high profile, though.)

Larry kept promising me he was going to take depositions, do all this stuff, and he did not do anything at all (yet at the end sent a bill to the city for $12,000). The date of my trial came and I was worried sick, because my attorney had not done anything to prepare. It was in Steamboat before Judge Richard Doucette. The night before, Larry told me that the judge who'd cited me, Mary Lynne James, was willing to drop the contempt charge in exchange for an apology. While Doucette was memorializing this agreement in open court, however, something strange occurred. The judge made a statement to Larry indicating he knew Pozner's personal plans, accompanied by a wink, which absolutely shocked me--I can't believe I have forgotten exactly what he said now, only that I was flabbergasted, because it indicated communication had taken place between them, when Larry had told me he had never done anything before Judge Doucette and did not know him.

We took a break in the proceedings, and I believed I was getting off in exchange for an apology, except that Larry made me sit down on a bench outside the judge's chambers, while he went in to talk to the judge. I protested--I wanted to come, too, and had the right to do so, as the real party in interest--and he would not let me. The prosecutor was also not present.

When Larry came out, he said the judge had agreed to dismiss the contempt charge, but would be referring the matter to the Office of Attorney Regulation Counsel for discipline. I did not want to take this deal, then. It was different from what I had agreed to. Larry got angry with me and MADE me take it. Because he was not prepared to go to trial, I had no choice but to give in.

Larry had come to town wearing a long black coat, as well as carrying a black purse. I remember the purse, because he wryly commented that Craig was not the sort of place where a man should be carrying a purse. I have thought about that purse in the past year and suddenly realized that there may have been cash in it with which Larry paid off the judge. Doucette was the judge who screwed Marvin Heemyer, by the way, the guy who then armored a bulldozer and destroyed buildings in the Town of Granby before killing himself.

The matter in Craig was referred to OARC, as I've said, and it resulted in a Letter of Admonition, which I did not appeal. The LoA was, at that time, the lowest level of discipline, and confidential, such that I was entitled to say I had never received any discipline. Today, the LoA does not exist as a form of discipline--an attorney is referred to diversion, instead, and all record of the "offense" expunged. However, it existed in 1994, and so April McMurrey (nee Seekamp), the snotnosed prosecutor--OARC's version of Javert--has presented it to the hearing board in an envelope every time as an aggravating factor in the string of groundless disciplinary cases she has prosecuted against me since 2006.

Anyway, what I've realized from this (as well as when Judge David Lass winked at Victor Boog when he was on the stand in the Spring Creek Ranch matter, as I have detailed elsewhere) is that when your judge winks at an attorney, either yours or your opponent's, pay attention. This nonverbal communication reveals, as unambiguously as an express verbal admission, that a secret understanding exists. In particular, it may mean the judge has been bribed.



  1. I have a case that would appear on its face that the judges are being bribed either by the opposing attorney or by the respondent in the case. I do not know where to turn. Can you help?

  2. So, if you signed a contract(as noted in your blog piece), you leave all in the dark on that.
    A contract as to what, with who, like the substance?
    And, as to some referral to OARC, who all, besides some Judge, were involved in that, and why?
    And as to OARC, what was is beef?, In particular, if in any LOA
    And, who brought any TRO on matters, and why?
    It is curious on the Broncos, and the P.R. on that, as to Denver law firms that reaped loads of P R, as to Edgar Kaiser's law suits, against Pat Bowlen.
    Just curious, it seems the piece notes it was some Judge who referred the matter to OARC. You leave readers in the dark, on matters, just wondering
    what was at the root of the basis for some contempt, who was involved, and the whole pic on that. Thanks if can elaborate. Craig(area) is big in coal disputes, and matters are still raging in legal disputes in the area.

  3. I did not "sign a contract." The Craig City Manager did. It was to acquire a conservation easement on a piece of real property, ultimately to trade to the Colorado Division of Wildlife in return for a reservoir which Craig needed..

    The property on which we were acquiring the easement abutted other property owned by DOW, which had previously been an enclave with no public access to it, surrounded by rich property owners who had been using it as their private hunting reserve. One of these rich property owners in particular, named Hyatt, did not want his exclusive hunting preserve, where he had been preferentially slaughtering bucks, opened to the public. He hired a shill named Kenny Kawcak, who, through an attorney named Bob Weiss, brought the bogus action for a temporary restraining order, in order to stop the closing.

    Weiss informed me at 5:00 p.m. the night before the closing that he would be seeking a TRO the next morning at 8:00 a.m., from Judge Kourlis in Steamboat Springs. I stayed up almost all night preparing for this hearing, as well as getting documents ready for the real estate closing, then drove with the city manager, Don Birkner, and the city's finance director to Steamboat, arriving at 8:00 a.m. only to be told that Weiss was not there and nothing was scheduled. So, Weiss had sent us on a wild goose chase to make us miss our 9:00 a.m. closing, which was supposed to take place in Rawlins, Wyoming. We had a phone conference with Judge Kourlis, who was actually in CRAIG, so Weiss had lied about everything.

    Since Weiss was not there, nor was the judge, the court clerk set another hearing, for 2:00 p.m. that afternoon in Craig. After the conference, Don and I spoke with the attorney for the seller of the easement (whose name, ironically, was "Grieve"!). He arranged for his private plane to pick us up in Steamboat and take us to Rawlins, Wyoming, for the closing, so that we could be back in Craig by 2:00 p.m.

    The plane was late, and then, once in Rawlins, when I was reviewing the documents for the closing, I realized that one of the exhibits, which we had never seen--the original baseline inventory completed by DOW, which was an essential part of the conservation easement--was not attached to the deed. I refused to close and Don and I made plans to return to Craig in time for the 2:00 p.m. hearing. However, Grieve's attorney talked us into making a stop at Baggs, Wyoming, so he could deliver the baseline inventory to us there. In the meantime, however, I was afraid we would be late, so called the court in Craig.

    Judge Kourlis had recused and we were now in front of the county court judge sitting as a district court judge, Mary Lynne James. I asked the clerk for a one-hour continuance of the hearing, explaining simply that I could not make it by 2:00 p.m. She asked, "Is your reason related to business?" and I said, "yes," and Judge James granted the extension to 3:00 p.m.

    The plane stopped in Baggs, Wyoming, on the way back and I closed the contract on the tarmac of the little airport there, with the wind blowing. Don and I then got back in the plane, Don barfing quietly into a bag most of the way. We were met in Craig by our secretary, who drove us to the courthouse, where we arrived at 3:05 p.m. I asked Judge James for dismissal of the TRO for mootness, since we had closed the contract. She was not happy, and did dismiss the TRO.

    The following Monday, Judge James caused the Moffat County Sheriff to visit me in my office, who put me under arrest for "contempt," and took me in his car to the courthouse. I never violated any court order. She was mad that she did not get the publicity she was seeking. (She had called the press not only for the TRO hearing, but for when the sheriff brought me to the courthouse.) What she said, however, was that I had been deceitful in asking for the continuance without revealing it was to close the contract.

    So this was the contempt proceeding you ask about, Mr. Hagood.

  4. Ironic, you bring up Rawlins, the Brimmer stronghold.

  5. If matter was in court, as a contempt issue, how did it jump the rail as an ethic Zar issue, as soon as some Larry walked into the judge's office,(in Craig) in some secret
    arrangement? Shoved down you throw was it?
    How could they have been anything on file as to those charges to even defend against? Is there more to explain this very odd so called justice
    happenings in tiny lil CRAIG?

  6. It "jumped the rail" because that was the deal they made: the contempt charge would be dropped, but Judge Doucette would file an ethics complaint with disciplinary counsel. So then I had the pleasure of defending against THAT for the next year.

    All this pales in comparison to what I went through from 2006 to 2010, however, which I have had great trouble writing about; but it will be on this blog in future.

  7. There's another aspect to the contempt proceedings which is important.

    At the same time I was Craig City Attorney, I was litigating pro bono on behalf of Aspen Wilderness Workshop against the Colorado Water Conservation Board over its giveaway of 40% of the instream flow water right (ISF) in Snowmass Creek to the Aspen Skiing Company, to make snow with. The Craig City Council had permitted me to keep my own practice going on the side when it hired me, as long as there were no conflicts with the matters I handled for the City.

    One of the members of the CWCB at the time was water lawyer Jim Lochhead, who also had represented Craig in water cases a few times. When the contempt proceedings started, Lochhead came in putatively as conflicts counsel to represent the City in the underlying litigation, which was Kawcak v. City of Craig. (Kawcak was the one seeking the TRO to stop the real estate closing).

    However, the county court judge had DISMISSED that case for mootness before initiating the contempt proceedings against me. Lochhead nevertheless entered an appearance in this dismissed case on behalf of the city and acted as though it were live, filing motions and billing for HIS fees. This added to my embarrassment, since he made it appear I was responsible for this expense, too (his attorney fees, paid by the City).

    I think it highly possible that Lochhead, in consultation with Gov. Roy Romer, did this in order to keep me twisting in the wind as long as possible, and maximize the embarrassment to me, in order to get me off the Snowmass Creek ISF case (since Romer himself was responsible for the CWCB's act reducing its instream flow). The embarrassment did finally cause me to withdraw from the ISF case: I looked like a reprobate to Aspen Wilderness Workshop.

    Romer proceeded to appoint Lochhead to the position of director of the Colorado Dept. of Natural Resources, and later appointed three people who had been adverse to me in the ISF case, or were involved in the contempt proceeding, to the Supreme Court: Greg Hobbs, Rebecca Kourlis, and Nancy Rice. Hobbs had filed an amicus brief opposing AWW's position in the Snowmass Creek litigation; Nancy Rice was the Denver District Court judge who dismissed all our claims (and, I have evidence, engaged in ex parte communications about it); and Kourlis was the district court judge in Craig who recused from the Kawcak case, as described above.

    So all of this looks suspiciously like the same thing I experienced later: retaliation for the exercise of my First Amendment rights, to get me off a case where I was providing representation to anti-development interests.