(orig. pub. 10/1/2010)
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 also made us buy, for the course, a binder full of Xeroxed cases, many of which were cut off on the righthand side, so you couldn’t even read them. Larry 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. I never saw the prosecutor go in, so this was an improper ex parte meeting between my attorney and the judge. 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 the deal. 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 (reportedly) 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 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.
A comment I made to my own post in 6/2015: 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.