The Denver Post
Prosecutor judging the judge
Sunday, July 25, 2004 -
The commission that will recommend whether the judge presiding over the Kobe Bryant case should be retained in office includes the district attorney prosecuting the NBA superstar, as well as the DA's spokeswoman.
On the 10-member panel are District Attorney Mark Hurlbert, who is prosecuting Bryant, and Krista Flannigan, who is spokeswoman for Hurlbert and the other Bryant prosecutors. The question, said Eagle lawyer and former prosecutor David Lugert, is whether Hurlbert and Flannigan should have evaluated state District Judge Terry Ruckriegle, who is presiding over the Bryant case. "I guess the theory would be that Ruckriegle would be inclined to rule favorably for the prosecution here in expectation of getting a favorable recommendation from the DA," Lugert said. "It's a good question." Ruckriegle declined to comment. But during pretrial hearings, the judge has not played favorites, chastising the prosecution and ruling in favor of the defense on occasion. Hurlbert and Flannigan said they've acted appropriately. In the broad spectrum of their duties as commission members, the Bryant case isn't any more important than any other case, they said. "If it was a conflict in Kobe Bryant, it would be a conflict for every other case," said Hurlbert, who has been part of the courtroom prosecution team in pretrial hearings but will act in a supervisory role when the trial begins next month. The commission has completed its evaluation of Ruckriegle and the other judges in the 5th Judicial District. Its recommendations will be made public in August, for voters to consider at election time. For years, lawyers - including prosecutors and defense attorneys - have served on the performance commissions. They often review the judges they appear before. State judicial rules don't discourage the practice, because four of the 10 members of the commissions must be lawyers. The lawyers are able to see how the judges conduct themselves and evaluate whether they act properly. The rules add, however, that commission members must tell the commission if they are unable to make an unbiased evaluation of the judge. If they can't, they don't vote. Some lawyers say Hurlbert shouldn't have evaluated Ruckriegle. Others disagree. And some say that even if there is no actual impropriety, the appearance of impropriety must be avoided. The high profile of the Bryant sexual assault case also has heightened the scrutiny of all those involved, they say. Phil Cherner, a Denver defense lawyer who is a member of the judicial commission that evaluates Denver judges, thinks Hurlbert shouldn't have evaluated Ruckriegle. "He should recuse because of the appearance of impropriety and the possible taint it brings both to the commission and to the outcome of the criminal case," Cherner said. "I don't think the DA should be in the position of expressing an opinion about the quality of a judge given the unique situation we are talking about here." Cherner said that although the commission doesn't hire or fire judges, it publishes detailed recommendations. "Those recommendations have a track record of being persuasive for voters," he said. Peter Weir, executive director of the Colorado District Attorneys Council, said that prosecutors who are on commissions and assigned to a certain judge's courtroom will on occasion avoid voting on that judge but will express views on other judges. "There is certainly precedent for prosecutors to recuse themselves if, in fact, there would be an appearance that what they would have to offer would be inappropriate given the circumstances," he said. Hurlbert and Flannigan said that what they did in evaluating Ruckriegle and the other judges was proper. Both noted that the commission bases its recommendations in large part on surveys sent to lawyers, litigants, jurors and courthouse personnel who either appear before or work for the judge. Flannigan said neither she nor Hurlbert would use the commission to retaliate. "That would not be at all appropriate or professional," Flannigan said. "That's not the purpose of it. And the way the commission operates, there are guidelines that we have to follow. It is not an appropriate vehicle to get back at anybody." Hurlbert said every lawyer on the 5th Judicial Performance Commission has appeared before one or more of the judges they evaluate. He believes their insight into the way the judges conduct themselves is important. Hurlbert said his evaluation of the judges - including Ruckriegle - is "based on my time in the courtroom, the surveys and public comment." The district attorney added that at one time or another, "every single judge has ruled against me. I will never hold it against a judge. The remedy is to appeal the ruling." Among the lawyers who believe Hurlbert and Flannigan acted appropriately are Dan Recht, a Denver defense attorney, and Karen Steinhauser, a former prosecutor who is a professor at the University of Denver School of Law. Recht said he believes lawyers such as Hurlbert are a critical part of the commissions because of their courtroom experience. "The district attorney has dealings with this judge on a routine basis independent of the Kobe Bryant case," Recht said. "And I don't think the Bryant case should change that scenario one iota." Steinhauser said much of the recommendation is the result of surveys. "I really don't think it is a conflict of interest," she said. "It really is not based on the feelings of the commission as much as it is on all of the feedback." Staff writer Howard Pankratz can be reached at 303-820-1939 or hpankratz@denverpost.com .
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