Wake Up! with Randy Corporon, George Brauchler, March 6, 2014

Station:   KLZ, 560 AM

Show:      Wake Up! with Randy Corporon

Guests:    Brauchler

Link:       https://soundcloud.com/randycorporon

Date:       March 6, 2014

Topics:    Cyber Bullying Bill, Discretion, Title Eighteen (Title XVIII), Harassment, Obscenity, Prosectution, Prosecutors, Potential for Abuse, First Amendment

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HOST RANDY CORPORON [to CO State Representative Chris Holbert]: And you suggested that Arapahoe County District Attorney George Brauchler could bring some real perspective to the debate.  And he is on the line with us now.  George, welcome to your first visit on the Morning Show, here on KLZ!

ARAPAHOE COUNTY DISTRICT ATTORNEY GEORGE BRAUCHLER:  Hey, it’s great to be here. And I hope you see how this works, Randy.  You text me and say, “Can you be on?” And, BOOM! it happens.  [inaudible]

CORPORON:  Yeah, this is what I call “Snap Response”.  And something kind of similar happened with State Representative Chris Holbert, too.  So, you weren’t supposed to tell that publicly, though, I don’t think.  I’m not sure.

BRAUCHLER:  [laughter]6

CORPORON:  Anyway, Chris [Holbert], —

BRAUCHLER:  [inaudible]

CORPORON—what did you want us to bring DA Brauchler on to explain?

COLORADO STATE REPRESENTATIVE CHRIS HOLBERT:  Well, as we talked before, the cyber bullying bill was assigned to the Education Committee and the members of that committee usually do not look at Title XVIII,  the criminal code. So, when we came to committee — again, I was a ‘no’ vote as the bill was introduced — but we were presented with amendments that moved this from one section of Title XVIII into another, I really appreciated the conversations that I had with DA Brauchler, both outside the committee room and there at the mic, and his assurances that, as amended, this was the right solution to the problem.  So, I think for his expertise in law enforcement, that’s the input we ought to focus on, not the opinions of a legislator who serves on the Education Committee.

CORPORON:  Arapahoe County District Attorney George Brauchler is with us.  And George, in the last segment, we had a caller, John, who basically said, “Listen, why is this the business of government?  Why don’t parents police their kids? This is social media, a recreational activity.  Let’s deal with this in communities and families.”  What say you?  Obviously, we’ve all seen the headlines of these horrible teenage suicides and that sort of thing that are attributed to cyber bullying.

BRAUCHLER:  Well, I think that’s right.  I think the real issue for the community is we are at the front edge and of trying to catch up with technology.  There is clearly an issue that is developing among kids, and it’s one that goes beyond anything that you and  ever I had to deal with in high school.  I mean, if it was name-calling in high school, the words evaporated as they left your mouth, and maybe there was a re-telling of the story.  If there were pictures posted anywhere, it was a Polaroid that faded over time, on a billboard, maybe somewhere — or a corkboard.  But this is different, and this has taken on a different scope.  And I think a couple things are going on here. One of them is, the system is— and parents — and Rhonda Fields is parent who was trying to figure out, “Look, what can we do not to punish people in a ‘let’s incarcerate them’ sort of way, but to try to end this and encourage a different outlet for the expression of some of these things rather than something that has led to, I think, a lot of suicides, a lot of angst, a lot of fighting. Even physical fighting was taking place between kids because of some of the things that had been posted on there. Representative Holbert was as strong a ‘no’ as you can imagine.  In fact, we had a pretty lengthy and epic good conversation outside the hearing room, but I want to add—.

CORPORON:  Is there any video of that conversation that I could get a hold of?

BRAUCHLER:  No, I wish.  But I’ll tell you something that Representative Holbert knows well, too, and that is because we are in the minority, there are a lot of bills that get launched that we begin to identify as, “Good gravy!  We’re never going to stop this.  What can we bend or twist it, amend it, so that it’s at least tolerable.  Because we can’t stop it.”  And so, I tell you that without the District Attorney’s Council getting on board with this bill, it would have passed out of that committee on a party-line vote, and my guess is it would have passed out of the House, it would have passed out of the Senate, and the Governor would have signed it.  And Representative Holbert is right.  The first form of that bill left very little discretion, it mandated things for the DAs in terms of sentencing outcomes or how to handle different cases.  So the District Attorney’s Council identified this, and got together with Representative Fields — who has been very good about being pro-law enforcement /prosecution type stuff when we have come to her with things. And she sat down and listened to them and amended the bill and took some things out.  And then the District Attorney’s Council was on board.  My role in supporting it was in part to say, “Listen, I appreciate — I’m from Douglas County.  I’ve lived here for almost 20 years. I believe in the First Amendment, and I appreciate the concerns that come from seeing this bill.  I wasn’t all that shocked to see Representative Holbert pull me aside. What shocked me was, being in a committee where Representative Holbert was.  Because he’s right.  This is a judiciary bill.  We just had the same thing earlier in the week, on Monday, with the Jessica’s Law and some other stuff. The Democrats place these bills in the committees where they think they can get the outcome that they want most.  And in this case, it was a dramatic presentation of the bill, not one for the judiciary.  So, that’s true.  So, when we get there, Representative Holbert said, “Hey, I’ve got some significant concerns about the First Amendment.  Here’s where we’re at.”  I said, “Look, me too.  But let me tell you the big backstop on this.”  We’ve gotten this bill into a position where, one, if it every needed to be used and it was appropriate, I’ve do have it as a tool.  But I also get to be the one to exercise discretion to make sure that we’re not just using this because somebody said, you know, “Susie’s fat.”  Because that is not what this bill is about.

CORPORON:  We’re talking with Arapahoe County District Attorney George Brauchler.  Dane Torbensen is in studio, and Representative Chris Holbert is on the line, as well.  Let me take off my Tea Party leader hat, my radio host hat, put on my lawyer hat here for a second.  We are all familiar with criminal laws against harassment —phone harassment, making threats to other people.  That’s speech directed toward someone with the intention to cause fear or harm in some way. But now we’re broadening that, and moving it into the realm of speech about a person.  And of course we’ve got laws about civil remedies in the civil courts.  If someone tells a lie about you, defames you, causes actual damages to you, you can recover money damages that way.  But now we’re criminalizing speech about a person.

BRAUCHLER:  Well, a couple things. One, i think that everyone agrees that this bill, to the extent that it becomes law and results in anyone being charged, it is a 99.9% chance that it is going to be a juvenile.  So, what you and I both know, is the ability to seek civil recourse against a juvenile is pretty limited.  So that’s not really an option for most of these kids that suffer at the hands of these other kids through these things online.  The other thing is, I think it’s a fair question to say, “Don’t we have 18-9-111 — harassment, which requires the intent to annoy, harass, or alarm in doing certain specified things through those sub-sections.  I don’t disagree with that, but I don’t think it is a good fit for this.  I think, instead, harassment is a person-to-person kind of a crime.  Whereas stalking is way too big.  I mean, stalking is a felony. We don’t even want to get there with this kind of a charge.  So in creating what is a one class higher [inaudible] second class misdemeanor charge, we are able to distinguish between that intent — impulsive, one-on-one, quick phone call conversation that results in a threat —and something that is far more deliberate, far more widespread in terms of distribution, with a far greater likelihood and intended outcome of something bad.  And again, I told this to the committee when I testified.  They had a whole lot of high school kids there testifying about bad things that had been said about them on the internet.  And I said, “Look, with all due respect, that is not what this bill is for.  This bill isn’t for people’s feelings getting hurt, you know, in class or over the internet.  That’s not what this bill is.  This bill is about a far worse behavior

GUEST OF REGULAR “Liberal for Lunch” SERIES, ATTORNEY DANE TORBENSEN:  Well, Mr. Brauchler, I appreciate your intent and your office’s intent to be deliberate in really considering the appropriate circumstance for application of this bill.  But the bill itself is not limited to that.  And I — you know, it is the exception, it is the bad apple. I practice criminal defense all the time, so I know the good intentions of the vast majority of the DAs out there.  But there are abuses. There are times when maybe the prosecutor does not know all the facts that the victim is alleging, and the victim is able to use the system to abuse a defendant.  And when it is dragged into the criminal system for any defendant, it is an enormous burden on the defendant to hire an attorney to defend, to worry about criminal charges being on their record forever.  The potential for abuse in this bill is enormous.  All it takes is someone who — there are occasions when people have the right and should deliberately criticize another person with the intent to make them feel bad about their actions.  There are appropriate circumstances when that is legitimate.  And for minors to do it to other minors.  When someone commits a criminal, atrocious act — there are minors who do horrible things, charged as adults in the criminal system— it is appropriate to denounce their behavior in a way that could cause them to suffer serious emotional distress.  And that conduct would be criminal under this bill.  And that’s what concerns me.

BRAUCHLER:  Well, and i appreciate that, but I disagree.  If you look at the language of this bill, it doesn’t require just someone to feel bad or even to suffer harm.   It requires some other level of conduct on the part of the person who is either putting out the message or tweeting or whatever the heck.  It requires both ends of that.  That’s a big deal, and that’s the part where you get someone who comes in and says, “I’m hurt because Tommy said I’m ugly,” or “Tommy said I’m stupid,” or, “Somebody said something bad about me.”  And again, these are largely kids that will be affected by this. And they’ll go through Title XIX through the Juvenile Justice Bill.  But the discretion — I get it! And I get it.  I’m skeptical of other District Attorneys sometimes and the way they use laws. But if you’re talking about we should denounce this law because of the potential for it, I encourage you to look at the other parts of 18-9 and Title XVIII that deal with things like obscenity. Obscenity is very broad. It’s in the eye of the beholder but you don’t see prosecutors prosecuting for violations of obscenity because, I think, it would be an abuse of discretion.  And I think I’m very skeptical of doing things that would infringe on someone’s First Amendment rights.  So, is it fair?  Yes.  Is it a possibility?  Sure, it’s a possibility. But you know what your responsibility is to be — not only to come on this radio station or a juror to go to court and say, “Not guilty.” But, you get to say, “That DA that would pursue that — let’s kick that dude out of office because that guy does not defend the Constitution.”

CORPORON:  Well, we really appreciate you calling in, Arapahoe County District Attorney George Brauchler, to help explain the nuance and the process in moving this cyber bullying bill ahead.  We’ll certainly watch the process, see what the end result of this bill is.  And before I let you go, George, I just want to say a couple of things about you.  Since you’ve taken over the — as District Attorney of Arapahoe County, I know  — you know, I’m in the criminal defense community, so talking — lawyers obviously talk amongst themselves about others.  And you have an office that has been responsive to concerns, willing to focus attention or resources on individualized cases that require individualized treatment.  You know that so many cases are kind of rote, by-the-numbers, typical crimes that have typical results, but you don’t run your office limited to those kinds of cases. You’re not like a mill, as far as I can tell,  concerned, trying to shove them through just as fast as you can. And the way that you guys stepped up — and of course, this goes to the Arapahoe County Sheriff’s Department as well — during the Arapahoe County High School, or the Arapahoe High School shooting was just absolutely remarkable.  So, I just want to commend you and thank you, and especially thank you for calling in this early on a Thursday morning on the KLZ Morning Show.

BRAUCHLER:  Hey, Randy, thanks for the kind words.  Any time! Representative Holbert, thanks!  Dane, thanks for the questions.  I’m happy to continue this conversation even off air if you’d like.

CORPORON:  Sounds good!  And we’ll have you on again when the next big issue comes up.