Welcome to Court Crawl, Colorado Politics’ roundup of news from the third branch of government.

The Colorado Supreme Court heard five criminal and civil appeals last week, and the U.S. Senate confirmed a public defender to a long-vacant seat on the federal appeals court based in Denver.

Oil and gas rights, DUI tests, racial bias

?  Colorado’s justices heard a criminal appeal that specifically asked whether Arapahoe County jurors were misled into thinking a drunk driving suspect declined a blood alcohol test, when in reality he changed his mind at the last minute and agreed to take the test. But to get to that question, some members of the Supreme Court wondered about the bigger picture: Do DUI suspects even have the ability to change their minds once they decline a test?

?  The state’s Court of Appeals had a difficult time figuring out whether a Black defendant should receive a new trial after one of the jurors in the overwhelmingly White jurisdiction admitted he “didn’t want diversity.” The Supreme Court also appeared torn, specifically about what constitutional violation occurred, if any, though the biased juror’s continued presence in the courtroom.

?  A man was found guilty in Arapahoe County of murder and drug offenses, but now contends he should have received separate trials for those charges because they were unconnected. Some justices seemed to agree jurors might have been more likely to reject his self-defense claim to murder because they heard copious amounts of drug evidence.

?  One justice observed there is no “right answer” to the question of who owns the oil and gas rights under roadways, but the chosen methodology could have broad impacts across Colorado.

?  The Supreme Court seemed open to the conclusion that a private university’s promise of a fair investigation into campus sexual assault, coupled with specific procedures, could suffice to form a “contract” that an accused student can sue over.

Second Biden appointee joins 10th Circuit

?  The U.S. Court of Appeals for the 10th Circuit, which hears federal cases arising from Colorado and five neighboring states, has had a vacancy for over two years, after Senior Judge Mary Beck Briscoe stepped down as an active judge in 2021. Although the Biden administration speedily installed Judge Veronica S. Rossman to a Colorado-based vacancy that same year, Briscoe’s Kansas seat remained open for an abnormally long time.

?  Last week, the Senate confirmed Richard E.N. Federico by a wide margin to fill that vacancy. Federico is a military judge, prosecutor and defense attorney who also joins Rossman in the small (but growing) category of public defenders appointed to federal judgeships. With his confirmation, the 10th Circuit returns to its full roster of 12 active judges, the majority of whom are Democratic appointees.

 ?  The only vacancy still proving troublesome to Colorado is that of U.S. District Court Senior Judge Raymond P. Moore, who stepped down earlier this year. His intended successor, U.S. Magistrate Judge S. Kato Crews, seems unlikely to receive a full Senate vote this year, following his stumble in his confirmation hearing nine months ago.

Speaking of judicial nominations

 ?  Colorado Politics spoke this week with Frances A. Koncilja, a lawyer who has participated for many years in federal and state judicial selection processes. She served on the judicial advisory committee for Colorado’s senators during the latest wave of U.S. District Court appointments, and talked about how the committee carried out its work. Here is an excerpt:

Colorado Politics: Can you walk me through the committee’s process, starting with the announcement for candidates to apply and going through the committee’s recommendation to the senators?

Frances Koncilja: The senators’ staff put together a list of publications to announce the application process and date cutoff. They also put together a list of groups they would send the information to – such as the Women’s Bar, the Sam Cary Bar, etc. Senators’ staff asked the members for input to see if they had missed any publications or groups. Senators’ staff incorporated our suggestions. …

The senators’ staff collected the applications and then sent them electronically to each committee member. If any of us wanted additional information, we informed the other committee members and the senators’ staff.

We asked for any information from judicial reviews of state judges. That is posted publicly and easily available. The senators’ staff collected that information and shared it. As you know, the reviews of the magistrate judges are regarded as confidential, and the committee was not given access to those reviews.

Once the application process was completed and after we had received the above information, the committee met – at times remotely and, after COVID, in person – to review the candidates and begin making the decision as to whom we would interview. The discussions were robust.

Once we decided whom to interview, the senators’ staff did the hard work of scheduling interviews. The interviews usually took about 45 minutes. We discussed candidates after interviews and then at the end of the two days of interviews. We began to see if there was consensus on any of the lawyers whom we would recommend. 

In federal news

?  The 10th Circuit concluded two Colorado Springs officers could not be held liable for tasing a man up to eight times, leading to his death.

?  The 10th Circuit also awarded immunity to Eagle County sheriff’s officials for the suicide of a jail detainee. The ruling was the second time in two months the circuit reversed a particular trial judge’s denial of qualified immunity to law enforcement officers.

 ?  A handful of Michigan residents have no standing to sue Colorado-based Dominion Voting Systems over its response to defamatory accusations in the wake of the 2020 presidential election.

?  A jury will decide whether a Weld County schools superintendent was unlawfully terminated after she stood up against discrimination by one of the district’s principals.

?  Based on disciplinary proceedings in his home state of Georgia, Colorado’s U.S. District Court disbarred attorney L. Lin Wood, a public supporter of former President Donald Trump, from practicing in the jurisdiction.

?  A federal judge declined to block the reintroduction of gray wolves into Colorado, which voters approved in a 2020 ballot initiative. Livestock associations were disappointed with the ruling.

Trials continue over Elijah McClain’s death

?  Two Aurora Fire Rescue paramedics are on trial over the 2019 death of Elijah McClain – the latest in a series of criminal proceedings involving the first responders who restrained McClain and injected him with the sedative ketamine. The Denver Gazette has been following the developments in the latest trial:

Physician: No medical reason for ketamine injection

Forensic pathologist testifies Aurora paramedics caused Elijah McClain’s death

Ketamine dose didn’t kill Elijah McClain, defense experts for Aurora paramedics say

Paramedic training expert questioned about Aurora medics’ actions

Miscellaneous proceedings

?  A group of state trial judges spoke to new attorneys earlier this month in Denver, listing the do’s and don’ts of practicing in a courtroom.

Going on break

?  Court Crawl will be on break for the remainder of the year and will return in January.