Colorado’s second-highest court overturned a defendant’s Douglas County convictions on Thursday due to the error of a judge whose actions have triggered a disproportionate number of reversals to convictions and sentences in recent years.

Since 2021, the Court of Appeals has found problems in multiple criminal cases handled by former District Court Judge Patricia Herron. Among other things, she:

• Allowed prosecutors to give a false impression to jurors about the DNA evidence in a sex assault case

• Blocked a defendant from telling the jury his alibi

• Allowed a defendant’s lawyer to withdraw without informing the defendant of her rights

• Subjected a defendant to lifetime sex offender registration without explaining why

• Allowed a biased juror to serve in a drunk driving trial

• Ordered a defendant to pay crime victim restitution in violation of Colorado Supreme Court precedent and then “recharacterized history” in her decision

• Declined to correct a prosecutor who misstated the law to jurors

Since December, two more Court of Appeals panels found errors related to Herron violating a defendant’s right to counsel and allowing a biased juror to serve.

Herron retired from the bench at the end of 2023, but Chief Justice Monica M. Márquez subsequently hired her as a part-time senior judge in spite of her record of mistakes. Herron remains on the bench, according to the Judicial Department’s current roster of senior judges.

In the Court of Appeals’ most recent decision, finding an error for the third time in three months, defendant John Allen appealed his convictions and four-year jail sentence for violating a restraining order, harassment, and violating bail bond conditions.

Castle Rock police investigated allegations that Allen had violated a restraining order and committed other offenses by being present at the victim’s home. Police arrested Allen on June 22, 2021.

Officer James Dinges told Allen in the jail that he intended to search Allen’s cell phone. While Allen could decline to consent, Dinges would just get a warrant in that scenario. Allen expressed concerns, but, if he consented, the phone “can be back here tomorrow,” said Dinges.

Allen consented and Dinges took the phone.

The next day, the forensic lab began an extraction of his phone. Around that time, Allen appeared at the police department to ask for his cell phone back.

According to a report authored by Detective Dan DeGennaro, DeGennaro “reminded him that we were operating under his verbal consent to search the phone, and if he wished to revoke that consent, he could do so.”

Allen confirmed he needed his phone back so pretrial supervision could monitor him.

“I told John that we were operating based on his knowing, voluntary consent. If he felt pressured into giving consent, I did not feel comfortable with that. John stated that he did feel pressure,” DeGennaro continued.

DeGennaro further told Allen he could “revoke consent at any time. … If he was not good with it, tell us now and we will stop the process.”

Allen ultimately left and the download concluded. There was incriminating evidence placing the phone near the victim’s home.

The defense moved to exclude the cell phone evidence from trial, arguing that Allen revoked his consent to search the phone.

“He made an effective revocation of consent that was not recognized,” Allen’s lawyer told Herron.

She denied the defense’s motion, relying on the document that police submitted later in support of a search warrant, without addressing the details of Allen’s interaction with DeGennaro. The defense again asked Herron to hold a hearing to address the specific details around consent, but she refused.

Upon appeal of Allen’s convictions, a three-judge appellate panel agreed Herron’s handling of the issue was faulty.

“The trial court erred by refusing to hold an evidentiary hearing on the motion to suppress to determine whether Allen gave police consent to search his phone and whether he revoked consent before the police were able to complete the data extraction of his phone,” Judges Rebecca R. Freyre, Karl L. Schock, and Grant T. Sullivan wrote in an unsigned Feb. 21, 2025 order. “Whether Allen voluntarily consented to the search of his phone initially and whether he revoked that consent before the police were able to complete the data extraction are factual disputes that the trial court did not resolve.”

Because the cell phone evidence featured prominently in Allen’s trial, the panel ordered a new judge to hold a hearing and address whether Allen gave voluntary consent to search the phone after all.

After a two-day hearing, District Court Judge Victoria Klingensmith agreed the evidence had to be excluded because Allen never gave voluntary consent to the search.

“The Court finds the representations made by Officer Dinges while Mr. Allen was confined in the Douglas County jail, unduly influenced his decision-making ability, resulting in an involuntary consent to search the cell phone,” she wrote on Jan. 8.

Finally, in a brief opinion on March 12, the appellate panel found Klingensmith’s order resolved the key issue and Allen should receive a new trial.

The case is People v. Allen.

Editor’s note: This article has been updated to confirm that Herron remains a senior judge.