Colorado’s second-highest court upheld a man’s Arapahoe County convictions last month, despite voicing concerns about the trial judge’s confrontational behavior toward defense counsel.

Brandon John Conlon stood trial in 2020 for three charges related to filing a false sexual harassment report against security officers. A jury found him guilty.

During the trial, then-District Court Judge Michael Spear appeared frustrated at times with Conlon’s lawyer, at one point accusing him of “wasting my time.”

When Conlon appealed his convictions to the Court of Appeals, he referenced five instances where Spear allegedly demonstrated bias against the defense. Some took place outside the presence of the jury, including the “wasting my time” comment and two other remarks Conlon found “snide.”

However, Spear’s irritation also surfaced in the jury’s presence. For example, after Spear denied the defense’s objection to “improper bolstering,” Spear told Conlon’s lawyer to “please look that word up and use it appropriately in the future.”

Then, during the defense’s cross-examination of a witness, Spear prompted the prosecutor to make an objection to a piece of evidence. The defense, in turn, objected to Spear’s intervention on behalf of the government, which caused Spear to dress down the lawyer in front of the entire courtroom.

“Before I let you sit down, I would be interested in terms of the impression you’ve left with the jury,” he said. “So, why don’t you go ahead, for the jury’s benefit. Explain what it is you think the court did wrong.”

Conlon’s lawyer asked to make his objection at the bench, instead of in front of everyone.

“You’ve left it right out there in the open and left the impression with the jury that the court is somehow biased in favor of one side,” Spear interrupted. “So, you need to basically explain how it is that you believe I am biased.”

After the defense attorney explained his objection and cited Colorado Supreme Court precedent, Spear responded: “My bias is in favor of the law, and I require that attorneys appearing before me comport with the law. And that is what I am trying to make sure occurs in this particular matter.”

Case: People v. Conlon

Decided: October 12, 2023

Jurisdiction: Arapahoe County

Ruling: 3-0

Judges: Alex J. Martinez (author)

Anthony J. Navarro

Matthew D. Grove

A three-judge panel for the Court of Appeals, reviewing Conlon’s case, concluded the five alleged instances of biased commentary did not affect the proceedings and deprive Conlon of a fair trial. However, the panel’s Oct. 12 opinion warned that Spear should have kept his behavior in check, especially in open court.

“Some of the judge’s comments directed at defense counsel were inappropriate expressions of annoyance and irritation, and some of the interactions that occurred in front of the jury were equally troubling,” wrote retired Supreme Court Justice Alex J. Martinez, who sat on the panel at the chief justice’s assignment. “The worst of these was the court’s refusal to hold a bench conference over defense counsel’s expressed concern that the judge had essentially … objected during his cross-examination.”

Specifically, Martinez elaborated, forcing the defense lawyer to critique Spear’s conduct in front of the jury “was not only unnecessary but seemed arranged to embarrass defense counsel. Such an act detracted from the judge’s role of focusing on the merits of the case and conducting the proceedings impartially.”

Conlon also argued on appeal that Spear improperly allowed a witness to testify repeatedly that Conlon was a dishonest person. Martinez acknowledged the testimony was “likely impermissible character evidence,” but concluded the “fleeting” commentary did not affect the “overwhelming” evidence of Conlon’s guilt.

The case is People v. Conlon.