The criminal prosecution of indicted Mesa County Clerk Tina Peters could be tossed into disarray by a series of legal maneuvers launched by Peters’ defense lawyer that threaten to disqualify the judge and district attorney overseeing the case.
High-profile Denver lawyer Harvey Steinberg, who represents Peters, wants to depose Mesa County District Judge Matthew Barrett and Mesa County District Attorney Dan Rubinstein in an unrelated contempt of court case against Peters, a Republican who is an election conspiracy theorist.
Barrett and Rubinstein fought the subpoenas, claiming they could create a conflict of interest and potentially undermine the integrity of the criminal matter. Rubinstein even accused Steinberg in court papers of using “an abusive litigation tactic.”
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But the judge appointed to oversee the contempt case, Paul Dunkelman, sided with Steinberg. Now, Steinberg and Barrett are battling over how long the deposition should last and what questions Steinberg should be able to ask the judge. Barrett said he is alarmed by Steinberg’s attempt to have an “in-depth discussion” of his “opinions” and “impressions” of Peters.
“This is not only contrary to long-standing Colorado law,” Barrett’s legal team at the Colorado Department of Law argued in a motion last week, “it would undermine the judicial process itself.”
The debate over the depositions comes just as Rubinstein prepares to take the criminal case, centered on a breach of Mesa County’s election system, to trial. The Mesa County District Attorney’s Office announced last week that it has concluded its investigation into Peters. Rubinstein said in a written statement that he will “press for the earliest possible trial dates” on Wednesday (today), the next time the case is set to be heard in Barrett’s courtroom.
The contempt of court charge stems from an allegation that Peters used an iPad to record a portion of a February court proceeding for her former chief deputy, Belinda Knisley, and then lied to Barrett when asked about it.
Rubinstein filed a civil contempt charge against Peters as a result.
(Barrett was also overseeing Knisley’s case, before she pleaded guilty last month and agreed to testify against Peters.)
Barrett and Rubinstein argued that deposing them wasn’t necessary because they didn’t actually see the alleged filming, but rather were told about it by an employee of the district attorney’s office. For that reason, Barrett wanted his deposition limited to written questions or up to 30 minutes as opposed to Steinberg’s request to depose the judge for hours and ask him a wide range of questions.
But Steinberg argues otherwise.
“Judge Barrett’s opinions on Ms. Peters’ credibility are, in fact, wholly appropriate lines of inquiry,” he wrote in a motion, especially given questions about whether Peters lied to Barrett.
In her plea agreement with Rubinstein’s office, Knisley said Peters filmed the proceedings at her request “and then lied to the judge about doing so, including acknowledging to Ms. Knisley that she lied.”
Dunkelman has already issued an order limiting the depositions to what Rubinstein and Barrett saw in court on the day the alleged contempt happened.
The depositions are scheduled to happen as soon as this week, after which Dunkelman may review what Rubinstein and Barrett said to determine whether they are necessary witnesses and should have to testify at the contempt trial, which is set for Sept. 15.
If Dunkelman decided Barrett and Rubinstein are necessary witnesses, Steinberg could try to argue that the judge and district attorney should be disqualified from the criminal case against Peters.
Another development in the contempt case is that Steinberg on Thursday filed a motion to dismiss the contempt charge, arguing that even if the accusations that Peters recorded the proceedings and lied to Barrett about doing so are true, it “was not behavior that unreasonably affected the administration of justice in the proceeding.”
“A misleading statement made by a gallery member to a judge is not enough for contempt,” Steinberg wrote. “This case represents an attempt to harass Ms. Peters beyond criminal allegations and is based on an interaction that lasted, at most, two to three minutes.”
Rubinstein flatly disputed Steinberg’s argument.
“Nowhere does a standard exist that states that conduct must be so egregious that the proceedings could not continue,” Rubinstein wrote in a motion asking the court to reject the motion to dismiss.
Steinberg didn’t respond Tuesday to a message from The Colorado Sun seeking comment. The Colorado Department of Law declined to comment.
Rubinstein told The Sun that he feels Dunkelman has significantly limited what questions Steinberg can ask of him and Barrett.
Peters, who ran unsuccessfully this year to be Colorado’s secretary of state, was indicted by a grand jury in March. She is charged with three counts of attempting to influence a public servant, a Class 4 felony; one count of attempting to influence a public servant, a Class 5 felony; one count of criminal impersonation, a Class 6 felony; one count of conspiracy to commit criminal impersonation, a Class 6 felony; one count of identity theft, a Class 4 felony; and one count of first-degree official misconduct, a Class 2 misdemeanor.
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