The Colorado Supreme Court walked back a Weld County judge’s order for a public defender to turn over her unredacted case files at the request of the district attorney’s office, and instructed the judge to instead follow the established procedure for such requests.

Jared Cortes-Gonzalez, who is pursuing a claim of ineffective assistance of counsel on his original guilty plea, protested a subpoena from the Weld County District Attorney’s Office to provide “ANY AND ALL papers, documents, and records” the public defender’s office had in Cortes-Gonzalez’s cases. After District Court Judge Timothy Kerns signed off on the subpoena request, Cortes-Gonzalez appealed directly to the Supreme Court.

On Monday, the justices rebuked the district attorney’s office, saying it had no authority to compel the public defender’s office to hand over entire case files. Although Cortes-Gonzalez had waived his attorney-client confidentiality once he challenged the effectiveness of his legal representation, using a subpoena to get all of the defense’s materials was not the proper procedure.

“(A)ttempting to compel the production of the allegedly ineffective counsel’s entire case file without regard to the nature of the ineffective assistance claim submitted runs afoul of Colorado law,” wrote Justice Carlos A. Samour Jr. in the March 21 opinion.

Cortes-Gonzalez entered a guilty plea in four criminal cases in November 2018. Pursuant to the agreement, he received a sentence of 20 years in the Department of Corrections for burglary, criminal trespass and a probation violation.

Weeks after his sentencing, Cortes-Gonzalez wrote to Kerns seeking to withdraw his plea. He alleged that his public defender, Kim McDonald, “misled” him into taking the deal with the prosecution.

McDonald “said I was not going to get more than 12 years. She said I would get anywere from 8 to 12 years D.O.C. if the Halfway House didn’t accept me,” Cortes-Gonzalez wrote. “I told my Attorney, I wanted to go to trial she got very upset with me. She (coerced) me into takeing this deal.”

Kerns quickly appointed a new lawyer for Cortes-Gonzalez, who elaborated that her client did not knowingly agree to the deal because he was unaware of the full consequences, and also that he did not knowingly plead guilty due to a dialect barrier. McDonald’s handling of the plea “fell below an objective standard of reasonableness,” lawyer Stephanie Perkins wrote on behalf of Cortes-Gonzalez.

Under Colorado law, once a defendant alleges they received ineffective assistance of counsel, attorney-client confidentiality ceases to exist “but only with respect to the information that is related to the defendant’s claim.” In addition, a defendant’s lawyer must allow the prosecution to inspect a case file upon request, but, again, only those portions “that are related to the defendant’s claim of ineffective assistance.”

Deputy District Attorney Travis Winter served a subpoena on the Office of the Colorado State Public Defender in June 2021 demanding “ANY AND ALL” materials from Cortes-Gonzalez’s case be turned over to the court. The public defender’s office balked, writing to Kerns that Cortes-Gonzalez’s claim was “NOT a blanket waiver as to all communications.”

Kerns granted the request to produce the information. At an October hearing, the public defender’s office brought redacted and unredacted versions of the case files. The judge said it would be difficult to know what information was relevant to Cortes-Gonzalez’s plea without examining all of the documents, but “I could hypothesize some information that is wholly unrelated.”

Four days later, Cortes-Gonzalez filed his petition with the Supreme Court.

Samour, in the court’s opinion, noted that fairness requires the loss of attorney-client confidentiality when a defendant challenges the effective assistance of counsel, in order for the truth to come out. The waiver of confidentiality is automatic, but solely for information related to the ineffective assistance claim.

The justices concluded that in Cortes-Gonzalez’s case, the government went about the pursuit of documents in the wrong way, going so far as to suggest to the court that the public defender could not be trusted to hand over relevant materials.

“Both the prosecution and the district court seemed concerned with the prospect of having to rely on the public defender to produce all of the confidential information in her case files related to the ineffective assistance claim,” Samour wrote. “Digging in its heels, the prosecution now argues that the public defender ‘is not an impartial party’ and, therefore, the district court, not the public defender, must determine what is relevant to the ineffective assistance claim submitted.”

Instead, the Supreme Court did not believe that mistrust of the public defender’s office warranted bypassing the process the court laid out in its 2005 decision of People v. Madera. Under Madera, which also arose from Weld County, a judge can examine a defendant’s case file only after determining what information the prosecution wants, whether it is relevant and cannot be obtained elsewhere, and whether it falls into the waiver of attorney-client confidentiality.

The Supreme Court returned Cortes-Gonzalez’s case to Kerns with instructions to give the public defender’s office its unredacted case files back, and only proceed once the prosecution believes the redacted versions do not contain all relevant information. If Kerns then applies the Madera criteria and decides to review the unredacted files for himself, he may disclose any information from the unredacted files that pertains to the Cortes-Conzalez’s claim.

The case is People v. Cortes-Gonzalez.

Editor’s note: The spelling “anywere” instead of “anywhere” and “takeing” instead of “taking” in the Cortes-Gonzalez quote is as the quote reads.