The Colorado Supreme Court announced this month it will hear appeals in four cases, including one that questions the level of detail a convicted defendant must provide when asserting the existence of DNA evidence that could exonerate him.

At least three of the court’s seven members must agree to take up an appeal.

The justices also accepted cases involving financial crimes, damages awards to those injured by medical negligence and the protection that negative online reviews have from defamation claims.

A fifth appeal fell one vote short, with only two members interested in deciding whether the state’s Court of Appeals made a mistake by not awarding attorney fees to a plaintiff who prevailed in her open records challenge against a school district.

A potential DNA exoneration

An Arapahoe County jury convicted Jamale D. Townsell of entering a bank in June 2013, demanding money at gunpoint and fleeing with $1,100 in cash in less than 30 seconds. He is serving 32 years in prison. 

After the Court of Appeals upheld his convictions, Townsell filed a petition alleging constitutionally ineffective assistance of counsel. Representing himself, he argued his defense lawyer failed to investigate the possibility DNA evidence would exonerate Townsell. There was information suggesting another man — the brother of Townsell’s estranged wife — was actually the robber, and while the prosecution found Townsell’s DNA on some tested items, it did not test everything.

In November, a three-judge panel for the Court of Appeals sided against Townsell by 2-1. The majority concluded a trial judge was not obligated to appoint counsel to represent Townsell because even if he had credibly alleged his original lawyer was ineffective, he failed to show the lack of DNA investigation harmed him.

“Townsell also does not specify how further investigation by defense counsel of the DNA evidence would have changed ‘the result of the proceeding,’ or allege that a DNA expert would even have been available and willing to testify consistent with his allegations that his DNA may not have been on the other items recovered by the police,” wrote Judge Sueanna P. Johnson for herself and Judge Jerry N. Jones.

Judge Timothy J. Schutz dissented. Noting that Colorado’s criminal rules require trial judges to appoint counsel to investigate a potentially meritorious claim, Schutz’s argument centered on one theme: It is unreasonable to expect an incarcerated person to essentially perform the DNA investigation their trial lawyer allegedly failed to do.

“Townsell is, by all appearances, indigent, and he is in prison,” he wrote. “The net effect of such reasoning is to deprive a defendant of an evidentiary hearing because of the failure to present the evidence that he claims trial counsel failed to procure in the first instance.”

Townsell appealed to the Supreme Court. He also received the support of the Korey Wise Innocence Project, which argued the Court of Appeals’ majority had placed an artificially high burden on defendants pursuing DNA-based exonerations.

The Supreme Court has agreed to clarify what standard trial judges should use when deciding whether to appoint counsel to investigate defendants’ postconviction claims. The justices will also analyze whether an incarcerated defendant must specify how DNA evidence would undermine his conviction in order to get a hearing in the trial court.

The case is Townsell v. People.

Stolen debit cards

Jefferson County jurors convicted Garry Allen Hudson of multiple offenses related to his possession of counterfeit bills and other people’s identification cards. He is serving 10.5 years in prison. Hudson appealed his convictions and a three-judge panel for the Court of Appeals largely sided against him.

However, by 2-1, the majority overturned one of Hudson’s convictions for possession of a financial device. The underlying charge involved two debit cards belonging to other people that police found when they arrested Hudson. Law enforcement was unable to locate the owners and there was no evidence about whether the cards were active or whether there was money in the corresponding bank accounts.

Under Colorado law, committing the crime required Hudson to knowingly possess another person’s financial device, meaning “any instrument that can be used” to obtain something of value, including debit cards. In 2013, the Court of Appeals underscored that such devices “must be capable of use.“

Based on that understanding, the appellate panel vacated Hudson’s conviction because there was no proof Hudson could have actually used the debit cards for anything. Writing in dissent, Judge W. Eric Kuhn believed the explicit inclusion of debit cards in the law was sufficient to sustain a conviction, regardless of whether a specific card is “capable of use.”

“For example, a person may regularly discard a used gift card, and it follows that it must be shown that such a device could be used to obtain a thing of value,” he wrote. “But it is far less likely that a person would intentionally discard their debit or banking card solely because it is currently low on or out of available funds.”

The Colorado Attorney General’s Office appealed to the Supreme Court, arguing the appellate panel’s logic absolves people of criminal liability whenever a lost or stolen debit card in their possession has been canceled or if there are no funds in the bank account. 

The Supreme Court will review the issue.

The case is People v. Hudson.

Medical negligence

Chance and Erin Gresser brought a medical negligence claim against Banner Health, alleging staff delayed treatment for their newborn daughter’s infection and caused extensive, lifelong injuries. After a 2022 trial, a Weld County jury awarded the Gressers $27.6 million, largely for their daughter’s past and future medical costs. With interest, the total award was $39.8 million.

Under Colorado law, certain damages against medical providers are limited to $1 million unless a judge finds the cap would be “unfair.” District Court Judge Todd Taylor concluded the long-lasting injuries, the need for Erin Gresser to provide care around the clock and the costs of medical treatment amounted to good cause to override the cap.

He added that, in his view, the decision was binary: A judge can either impose the cap or override it and accept the jury’s full award. Nonetheless, Taylor concluded that “substantial evidence” supported the dollar figure the jury chose.

A Court of Appeals panel disagreed slightly with Taylor. The panel rejected the idea that judges are obligated to simply accept the jury’s calculation if they override the cap. Instead, if a judge decides to exceed the $1 million cap, they can also adjust the jury’s award if it is “grossly and manifestly excessive.” Because Taylor ultimately found the evidence justified the amount, the Court of Appeals upheld the award.

Banner Health appealed to the Supreme Court, arguing juries’ full awards will always be upheld under that standard. The Gressers countered the law does not envision defendants will receive a mini-trial in which a judge can recalculate the jury’s award after the verdict.

The Supreme Court will analyze whether the Court of Appeals’ approach is correct.

The case is Banner Health v. Gresser et al.

The negative reviews

In 2019, Colorado lawmakers enacted the “anti-SLAPP” law, which stands for “strategic lawsuits against public participation.” The goal was to provide a mechanism for quickly disposing of litigation that implicates a person’s First Amendment rights — specifically, the rights to free speech and to petition the government.

Jennifer Lind-Barnett had a poor experience when she brought her puppy to Tender Care Veterinary Center in Falcon. She subsequently posted about it on multiple Facebook pages, including Tender Care’s. Among other things, she and another dissatisfied customer, Julie Davis, called Tender Care “inept,” “dishonest,” the “biggest scam to ever walk into our town,” and alleged it committed “malpractice.”

Tender Care filed a defamation lawsuit based on 114 of Lind-Barnett and Davis’ statements. The defendants sought to dismiss the complaint under the anti-SLAPP law, arguing their speech was a matter of public interest or a public issue covered by the shield.

In August 2022, El Paso County District Court Judge David Prince declined to dismiss the lawsuit. He acknowledged the statements were made on social media pages, but believed they fundamentally pertained to “a private business dispute, essentially a pair of customer complaints.”

A Court of Appeals panel clarified that customer posts about veterinary services could amount to an issue of public concern as a health or welfare issue more broadly. But the panel did not believe Lind-Barnett and Davis’ posts had a “nexus” to a public debate. Instead, the women’s goal was to “exact some revenge” against the clinic.

“Specifically, of the thirty-seven statements Lind-Barnett initially posted on Tender Care’s Facebook page, only eight expressly related to information regarding (her dog’s) treatment and diagnosis by Tender Care,” wrote then-Judge John Daniel Dailey. “Most of the posts simply attack Tender Care and its staff.”

The defendants appealed to the Supreme Court, arguing the Court of Appeals panel took too narrow a view of the “public interest.” They maintained their objective of warning others about the quality of medical care and customer service at Tender Care was a topic that affects the public.

The Supreme Court will answer whether speech needs to have a nexus to an issue of public debate to be shielded under the anti-SLAPP law, and also whether a speaker’s motive is a relevant consideration.

The case is Lind-Barnett et al. v. Tender Care Veterinary Center, Inc.

Open records fees

Finally, the justices narrowly turned down an appeal implicating the state’s open records law.

Erin O’Connell requested that the Woodland Park School District turn over recordings from December 2022 depicting school board members conversing with a candidate for the superintendent position. The district argued the videos were not public records and, even if they were, they revealed “specialized” security details. However, a trial judge sided against the district and in February, a Court of Appeals panel upheld that decision.

After the panel’s ruling, O’Connell reminded the Court of Appeals it had neglected to address her request for attorney fees, to which she was entitled as the prevailing party. The school district responded that O’Connell’s request, as laid out in her legal brief, was a single sentence citing to Colorado law without elaboration. Under the rules of procedure, that was inadequate. The district also pointed out the trial judge could address the fee issue, as well.

The panel rejected O’Connell’s request, while providing no reasoning of its own.

O’Connell appealed to the Supreme Court. The justices recently accepted two open meetings appeals — including one brought by O’Connell against the same school district — broadly addressing the availability of attorney fees to those who challenge local governments’ violations of Colorado’s sunshine laws. The parties to those cases argued the award of fees is an important incentive allowing private citizens to enforce the transparency requirements.

With the Court of Appeals’ silence on O’Connell’s attorney fees, “a pattern is emerging that is undermining the ability of Colorado citizens to rely on the enforcement provisions of Colorado’s Sunshine laws,” attorney Eric Maxfield argued on her behalf.

Chief Justice Monica M. Márquez and Justice Melissa Hart would have accepted the case to determine whether the Court of Appeals was required to award O’Connell attorney fees. 

The case is O’Connell v. Woodland Park School District et al.