An Adams County judge falsely accused a defense lawyer of misconduct, called his performance “pathetic,” and responded that the humiliated lawyer could “take that up with the Court of Appeals” – prompting the Court of Appeals on Thursday to overturn the defendant’s convictions.

“[U]nder these circumstances, it would require a defense attorney of extraordinary fortitude to absorb the attacks made by the trial judge and immediately proceed to give effective, strategic representation to his client in this very serious criminal case,” wrote Judge Michael H. Berger for the three-member appellate panel.

The district court judge, Thomas R. Ensor, has since retired. But his judicial evaluations for years have noted problems with his temperament, particularly toward lawyers.

“It was real demeaning to me. I’m still angry and hurt by it,” said Fredrick M. Callaway, the attorney in the case.

According to evidence presented at his 2018 trial, Jorge Miguel Puga was weaving in and out of traffic, speeding in his Ford Mustang when he collided with multiple cars at an intersection. Prosecutors charged him with 10 counts that included vehicular assault, driving under the influence and attempted extreme indifference murder. A jury found Puga guilty and he received a sentence of 50 years in prison.

On the final day of trial, outside the presence of the jury, Ensor accused Callaway of having his law license suspended for nonpayment of registration fees.

“I know that this is cruel,” Ensor began. “This has been the most pathetic defense that I have ever seen in any case in the 40 years that I have been a judge, county court or district court.”

He then told Callaway to “sit down. You will have to explain that to the Supreme Court because I’m going to refer this to the Supreme Court and ask that you be disbarred.”

Callaway was “in as much trouble as Mr. Puga,” Ensor warned.

The judge subsequently learned he was mistaken, and Callaway had not been suspended from practicing law during the trial. (Callaway told Colorado Politics his registration status was displayed incorrectly at the time Ensor had looked it up.) Nevertheless, Callaway told Ensor he was wary of continuing because he was unsure he could effectively advocate for Puga given the judge’s view of him.

“I’m not going to let you withdraw at this point because your feelings have been hurt,” Ensor replied.

“Your Honor, my feelings haven’t been hurt,” Callaway protested. “I’ve been humiliated. It was unnecessary and -“

The judge interrupted. “You can take that up with the Court of Appeals,” he said.

The Court of Appeals panel, in turn, faulted Ensor exclusively for violating Puga’s constitutional right to a fair trial.

The panel noted that a fundamental component to a fair trial is having a judge who is unbiased toward the parties in a case. Judges who make repeated negative statements or impose vague restrictions on the defense may infringe upon that right. Ensor’s “extensive personal attacks” on Puga’s attorney deprived the defendant of a fair trial.

“[T]here is a clear difference between reporting a lawyer’s misconduct and threatening the lawyer – in front of his client and opposing counsel – with disbarment,” Berger noted. Telling the attorney that he was in “as much trouble as” his client was “wholly gratuitous and factually wrong because Puga was charged with extremely serious felonies and faced sentences that could effectively constitute a life sentence in prison.”

The appellate panel also raised a red flag over Puga’s decision not to testify in his trial, which happened after Ensor attacked Callaway and barred him from speaking privately with his client.

Ann Roan, a member of the Colorado Criminal Defense Bar’s board of directors, said the failure of Puga’s attorney to ask for a mistrial and withdraw after Ensor had rendered him ineffective was a disservice to his client.

“It’s not usual that a judge will double check if a lawyer is current on fees. But what was concerning was that the court was wrong about that, and second of all, that the court engaged in that broadside,” she said.

Ensor, who retired near the end of 2018, has a history of being chastised for his courtroom conduct. He once allowed his wife to serve on a jury, and made lighthearted remarks throughout the trial, instructing attorneys to be nice to her because his “dinner is on the line.” A majority of the Colorado Supreme Court found the circumstances were not severe enough to deprive the defendant of a fair trial, but nevertheless suggested Ensor should have behaved “in a more restrained manner.”

In August of last year, another Court of Appeals panel threw out a murder conviction because Ensor failed to fully read a key jury instruction.

Ensor first became a judge in 1984 and voters in Adams and Broomfield counties retained him throughout multiple election cycles. However, the citizen-led commission that reviews judges’ performance repeatedly made it clear to voters that Ensor’s temperament in the courtroom was abrasive to lawyers.

His 2016 evaluation noted his demeanor scores were “noticeably lower than the statewide average.” The commission in 2010 felt Ensor’s knowledge of the cases before him may be “perceived by attorneys as an arrogant demeanor.” In 2004, Ensor reportedly “committed to be more temperate.” Six years prior to that, “some attorneys felt Judge Ensor needed to be more even tempered.”

And in his first retention year, 1992, his “only criticism appeared to be that some attorneys felt Judge Ensor could be curt [or] rude with them. However, several of these lawyers also commented Judge Ensor seemed to have gained better control of [his] temper.”

David R. Juarez, a defense attorney in Northglenn, participated in many trials before Ensor and said the judge’s behavior in Puga’s trial was atypical.

“He has always been curt and impatient with attorneys who are not prepared or inefficient in their presentation, both defense and prosecution,” Juarez said. “Judge Ensor made the comments outside the presence of the jury. He has always scored high in front of juries and lower about his demeanor with attorneys.”

Approximately 65% of voters in the 17th Judicial District chose to retain Ensor in 2016. That same year in the same district, voters  ousted Judge Jill-Ellyn Straus, whose performance review also cited demeanor problems. Then in 2020, Judge Tomee Crespin did not survive a retention vote – again, with demeanor to blame.

An investigation from Colorado Politics and MetroWest Newspapers discovered allies of Crespin – who is Latina – had pointed out to the performance commission that male judges had received favorable recommendations in the past despite their temperament.

The Court of Appeals decision about a judge’s conduct, Roan said, held value because of Colorado’s system of retaining judges by popular vote. The court’s opinion, however, was unpublished – meaning the appellate panel did not intend for it to set precedent, and therefore it was not posted online.

“It’s hard for me to understand why this decision wasn’t published because I think it has broad import and broad implications,” she said.

A spokesperson for the 17th Judicial District Attorney’s Office said the original case involved a victim who worked for the office, and consequently the neighboring First Judicial District Attorney’s Office prosecuted the case. As such, it would be that office’s decision whether to retry Puga.

Callaway did not fault Ensor for thinking he was suspended given the incorrect registration information the judge saw. But Callaway explained Ensor could have handled his concerns in a less public manner.

“It was the undiplomatic way that he spoke to me afterwards that I think was wrong,” he said.

The case is People v. Puga.