The Colorado Supreme Court recently signaled that it may intervene in four cases from trial courts, two criminal and two civil.

At least four of the court’s seven members must agree to initiate the process of granting relief in a case outside the usual appellate procedure.

The cases address an expert’s insight into child-parent violence, a partially deadlocked jury, the use of private property for a water pipeline and a potential mental health angle to a fender-bender.

Expert evidence

State law requires criminal defendants to provide notice and undergo a court-ordered examination if they want to introduce expert evidence of their mental condition at trial.

Boulder County prosecutors charged Juli Ann Culver with one count of assault on an at-risk person, alleging she hit a teenager with cerebral palsy. Shortly before her scheduled trial in October, the defense announced it would introduce testimony from Jane Cleveland, an expert in “child-to-parent violence” and “abuse of caretakers.”

Specifically, Cleveland would provide context about what it means for parents “when a threat from their child occurs (and) the escalation of the limbic system causes a shutdown in frontal lobe processing, which means decision making gets impaired for a brief period,” her report indicated. “It is during these moments that parents can unintentionally make mistakes and overcompensate with their own physical reaction.”

The prosecution objected, arguing Culver had not followed the procedure for introducing mental condition evidence. The defense countered that Cleveland would not be opining about Culver’s mental state, but instead she would help jurors understand the behaviors inherent to caregiving.

“The Court finds that Dr. Cleveland is qualified,” wrote District Court Judge Dea M. Lindsey, “and that she may discuss generally what can happen physiologically to parents in these types of relationships without opining that Ms. Culver specifically experienced this reaction herself.”

The district attorney’s office immediately appealed to the Supreme Court, contending the only purpose of Cleveland’s testimony would be to suggest Culver “suffered from a mental condition, and implying that this condition prevented her from forming the culpable state of mind” to be guilty.

In an Oct. 24 order, the court directed Culver to respond to the prosecution’s petition. Justice Melissa Hart did not participate in the decision.

The case is People v. Culver.

The deadlocked jury

Omar Alexander Mena stood trial in Larimer County late this summer for three counts of sexual assault. After the evidence was wrapped up, the prosecution asked for the jury to also be instructed that they may find Mena guilty of a lesser offense of attempted sex assault for each charge. Over the defense’s objection, District Court Judge Sarah B. Cure gave jurors the option of finding Mena guilty of assault or of attempted assault for the three counts.

On the second day of deliberations, the jury told Cure they had unanimously agreed on the “first” set of charges, but not the “secondary” ones. After Cure asked jurors to clarify what they meant and sent them home for the night, the jury announced the next day that it reached a unanimous verdict on the assault charges, but not the attempt charges.

The defense asked Cure to give the jurors a form to enter their unanimous verdict on the assault charges and to poll the jury. Cure declined, and instead declared a mistrial for all of the charges.

Mena appealed directly to the Supreme Court, raising a “novel issue of significant public importance”: When a jury agrees on the original charges, but is split only on the lesser included offenses, is it unreasonable for a judge to order a new trial for everything?

“Colorado trial courts have allowed a jury to return a partial verdict if the jury indicates it is unanimous on any one count but deadlocked on other counts,” wrote Mena’s attorneys.

They added that the structure of the verdict form, plus a statement from one of the jurors after the fact, supported the conclusion that the jury acquitted Mena of the assault charges. The defense asked the Supreme Court to dismiss the original charges to avoid placing Mena in double jeopardy.

On Oct. 15, the court directed Cure and the prosecution to respond.

The case is People v. Mena.

Water rights

Last October, the Northern Integrated Supply Project Water Activity Enterprise sought a court order condemning a portion of VIMA Partners, LLC’s property in exchange for compensation. The enterprise is a government-owned business, with its owner being the Northern Colorado Water Conservancy District, or Northern Water.

As described, the purpose of the eminent domain action was to complete “a complex regional water supply and distribution project” to provide 40,000 acre-feet of water each year within Northern Water’s boundaries. VIMA Partners’ property was needed for a pipeline.

In June, Weld County District Court Judge Kimberly B. Schutt concluded the NISP Enterprise had the authority to condemn the disputed parcel, even if the Colorado Constitution did not specifically mention pipelines in the condemnation section.

She also rejected the argument that if anyone had eminent domain power in this situation, it was the water district itself, and not the enterprise it owned.

“Northern Water’s Board of Directors controls and directs NISP Enterprise and may exercise its legal authority through NISP Enterprise to accomplish NISP Enterprise’s stated purpose,” Schutt wrote.

VIMA Partners appealed to the Supreme Court, arguing its intervention was necessary to prevent the unlawful taking of property.

Schutt “relied on doubtful language, at best, to craft condemnation power where none exists,” argued VIMA Partners’ attorneys.

The Supreme Court ordered NISP Enterprise to respond on Oct. 14.

The case is Northern Integrated Supply Project Water Activity Enterprise v. Vima Partners, LLC et al.

A mental health exam

Spring Charlson was rear-ended in May 2023, causing some damage to the two vehicles and back pain for Charlson. Compared with a medical scan she had two years prior, post-accident imaging revealed disc bulges in her lower back. Charlson received surgery and her condition improved.

In suing the driver who crashed into her, Charlson underwent an examination by a defense expert. The doctor believed Charlson’s pain was likely caused by “overriding psychological factors,” rather than something physical.

Another defense expert, Hal Wortzel, reviewed Charlson’s medical records and likewise suggested that “efforts to explore cognitive, emotional, and/or behavioral contributions to Ms. Charlson’s course of illness are long overdue.”

The defense then sought for Charlson to sit for an examination with Wortzel. Charlson’s attorney objected, noting she had never put her mental health at issue in the lawsuit.

“What the defense is attempting to do here is to say that plaintiff has somehow waived her privilege to her mental health records or her mental health generally by the defense raising a defense that interjects her mental health into this,” argued attorney Cameron O. Hunter.

Based on the defense experts’ evaluations, “it has been put at issue by plaintiff whether she intended to do it or not,” countered defense lawyer Andrew LaFontaine.

Jefferson County District Court Judge Russell Klein ordered Charlson to sit for an evaluation, while acknowledging he “ordinarily” would not find a litigant put her mental health at issue in a car accident case.

There is “something more concrete than simply a fishing expedition,” he said, while cautioning Wortzel’s exam should not “conduct a thorough sort of evaluation of the plaintiff’s entire psychological history.”

Charlson appealed to the Supreme Court, arguing the inquiry into her mental health should not occur because she had not put her own mental condition at issue.

“Were this Court to rule otherwise, this would open a veritable floodgate of defense-oriented experts opining that the injuries of plaintiffs, however legitimate, were really caused by some underlying mental illness,” Charlson’s lawyers wrote. “Were such an opinion by a defense expert all that were needed to place a plaintiff’s mental condition in controversy, defense attorneys would be able to place their opposing parties’ mental conditions in controversy in every single personal injury case.”

The Supreme Court, in a Sept. 25 order, directed the defendant to respond to the petition.

The case is Charlson v. Pribble.