Colorado’s second-highest court decided last week that an Arapahoe County judge’s repeated rebukes of a defense attorney and orders to “be quiet” did not rise to the level of bias or a violation of the defendant’s due process rights.

A three-judge Court of Appeals panel observed that District Court Judge Joseph Whitfield’s dressing-down of the defense largely occurred outside the jury’s earshot, and his actions did not affect the ability to raise objections for appeal.

“We recognize that the court exhibited frustration, and perhaps even anger, with defense counsel. The court’s repeated references to ‘your office’ — the Office of the Public Defender — also suggested some degree of irritation with the Office of the Public Defender generally,” wrote Judge Matthew D. Grove in the Sept. 3 opinion. “While the court’s impatience and choice of words were not ideal, for several reasons we are not persuaded that reversal is required.”

Fermin David Bonsell Jr. stood trial in 2023 for attempted murder and assault. A jury convicted him and he received a prison sentence of 45 years.

On the first day of trial, the defense cross-examined a witness who testified to smoking drugs with Bonsell. After the prosecution objected to a question about the drug use and Whitfield sustained it, one of Bonsell’s public defenders said she had “a right to make a contemporaneous record” of her position.

Whitfield denied the request, after which the attorney asked if Whitfield was “denying my ability” to cross-examine the witness. Whitfield told the jury to leave the courtroom.

“I have ruled on the objection that’s been put forth. You do not have a right to make a record at the lectern during a trial when the court has ruled,” he said. “I understand your office believes that you have a special right to respond to every objection posed or sustained by the court. You do not.”

He added: “This is a trial — be quiet. This is a trial. We are in proceedings, and I have been very clear. … You can move on or you run the risk of having your questioning cut off. Do you understand that?”

One of the defense attorneys, Ashley Sullivan, later filed a written narrative of what happened, describing how Whitfield “proceeded to very sternly correct counsel at a high volume, clearly very angry with counsel.”

She also cited a 1989 Colorado Supreme Court decision that recognized lawyers “should be permitted to state succinctly” the grounds for an objection while judges should “control the length and manner of argument.”

The next day, Whitfield again told the defense how he handles objections.

“If I turn to you and ask you for your input, that’s your opportunity to respond. If I don’t, however, you don’t have an opportunity to respond to that point contemporaneously,” he said. “You can always request to approach, but if I deny it, that’s it. There is no additional argument.”

Whitfield added that the Supreme Court’s decision, in his view, “does not hold what I believe your office have routinely pushed … I don’t know anyone who interprets the case the way that this public defender’s office interprets it.”

Later, the defense raised an objection based on the rules of evidence and the state and federal constitutions. Whitfield asked the defense and the prosecution to approach the bench to ask if the defense attorney understood his previous directive.

“Honestly, I don’t. I’m trying my best, so I don’t know how to follow this court’s rule today,” the attorney said.

After Whitfield began explaining himself, the lawyer asked him to excuse the jury, “so they don’t see your facial expressions right now, which are clearly exasperated specifically with defense counsel.”

“Your request is denied. My facial expressions are covered by my mask first and foremost,” said Whitfield.

“They can see your eyes blinking at me,” said the attorney.

“Counsel, listen. I’ve had enough,” Whitfield responded. “If you can’t understand that or can’t function within this courtroom, then perhaps you can find somewhere else to try your case.”

After he said the rules are “simple,” the defense lawyer interjected, prompting Whitfield to tell her to “be quiet.”

“Stop calling me simple,” said the lawyer.

“I said the rule is simple, not you,” said Whitfield.

Finally, after the lawyer defended her right to raise constitutional objections, Whitfield told her she did not need to “constitutionalize” an objection.

“That is wrong. That’s a training matter we can address later,” he said.

On appeal, Bonsell argued that Whitfield’s behavior exhibited bias and violated his rights to due process and to counsel.

“In this case, the court spent numerous pages of transcript lecturing and admonishing defense counsel,” wrote public defender Kira L. Suyeishi. “And although the lectures took place at the bench, the court did not hide its irritation from the jury.”

Senior Assistant Attorney General Brittany Limes Zehner acknowledged that Whitfield was “arguably incorrect” in his understanding of constitutional objections, but he “did not set a categorical rule prohibiting the nonmoving party from ever responding to an objection or prohibiting a party from ever asking to approach the bench to make a further record.”

The Court of Appeals panel agreed that Whitfield was permitted to prohibit lengthy objections. Although he was incorrect about “constitutionalizing” objections, the panel suggested Whitfield intended to say that defense counsel did not need to cite constitutional provisions for every objection.

“Bonsell maintains the court did not hide its irritation with defense counsel from the jury,” wrote Grove. “What is clear, however, is that most of the court’s behavior was unlikely to affect the jurors’ verdict because it was outside of their earshot.”

The case is People v. Bonsell.