Statio

HOST ROSS KAMINSKY: Let’s go to our VIP line. George Brauchler, the 18th judicial district DA […] and Republican candidate for governor. And George and I agree on a lot of things but I think we had a little disagreement here, and George heard a conversation that I had earlier in the show with an attorney from the Institute for Justice named Allison Daniel. We were talking about civil asset forfeiture. And George, you disapproved of a little of that.

COLORADO DISTRICT ATTORNEY FOR THE 18^th JUDICIAL DISTRICT, AND GOP CANDIDATE FOR GOVERNOR OF COLORADO, GEORGE BRAUCHLER:  Well, the part I disapprove of – and I think listeners should now, District Attorneys Council, me included, supported this legislation, which I think was [HB17-] 1313, Tim Neville’s bill. But, the vehicle that they use to get there –and I think the one you’ve adopted, although you haven’t applied to all Colorado –is that there is policing for profit going on in Colorado, and that the police have a certain level of corruption baked into this system, and that’s why we needed to change the law. And I’m here to tell you, there isn’t any evidence of that in the state. And not only that, there wasn’t any [evidence] provided to the committee that voted on this. Now, the Institute of Justice does some great work. There’s no doubt about that. But on this particular issue, their approach was, “We need to change the law in Colorado because of all the other states that aren’t Colorado and how they do things with their police.” And we’re just different than that. One of the things that you talked about was a due process. I’m a huge – I’m a liberty minded guy. You know, Ross? I am a huge believer in due process. What I don’t think people get is that through our system, for law enforcement — or even our part of it, the District Attorney’s office — to be able to forfeit something we have to prove by ‘clear and convincing evidence.’ That’s the legal standard that we have. That is one hair below ‘beyond a reasonable doubt.’ So, I think to some extent, listeners think that cops drive down the road, they see a Lamborghini, and they think, “Hey, we’d love to have that. Let’s just pull this guy over for a tail light out, sieze the vehicle, we go to court, the Court grants us the car, we sell it, we turn it into hot tubs for the team, and we move forward.”  That couldn’t be farther from the truth. The process by which law-enforcement is able, legally, to seize something — before it can turn into something that they can then spend, and then the process of spending it –is ridiculous. The number of hoops that have to be jumped through – and if you bear with me one second I can tell you something that we did internally I’m proud of, but it will show this process. When I took over as DA, we didn’t have that standard that you wait till convection to forfeit. And so I went to my Economic Crimes Chief – great guy! — and I said, “I don’t want us to cease – I don’t want us to forfeit anything seized until after they’ve been convicted,” or – and here is something you need to remember — some people try to beat the system by fleeing the system. And so, if you are a fugitive of justice, if you leave the process in order to forfeit your stuff to stick around and play with us and then go to the process, then we’re going to forfeit your stuff. If you are going to stick around and play with us and go through the process, we won’t forfeit anything until after you’ve been convicted. And that could take place by a plea, some other deal with another jurisdiction, or you go to trial and lose. That’s all fine. Well, we did an audit after Tim’s first bill – Tim Neville’s first bill, which really struck a chord with me– and that was the idea of creating this level of transparency where you had to reveal every penny that you seized, every penny that you forfeited, every penny that you spent.  We became the first DA’s office –as best as I can tell, the only DA’s office – to actually do that. But along the way we found a case – like, the very first case we ever forfeited – and it did not take place after conviction. So I went back and I asked the prosecutor, “Tell me what happened.” And they said, “Well, we ended up dismissing the case.” And I said, “Well, why did we dismiss the case? Was it a plea bargain, something else?” They said, “No, it looked like we didn’t think we could prove it.” So even though the seizure and the forfeiture were completely legal, we had not waited until conviction or something akin to that. So I convened the forfeiture board, which includes all the sheriffs and one representative commissioner from each of my four counties, and I said, “I want to return every single penny that we took from that woman.” And they all voted to do it, and we gave her a check I think a week or two ago, to put her back in the position she would have been in had we not done it.  And that wasn’t because we violated the law. That’s because we violated exactly what you have been talking about, and that is my sense of constitutional due process and how this thing should be used.

KAMINSKY: I’m looking, George – Yeah, I’m looking here at some stuff from IJ, and these are not enormous numbers for the state of Colorado. But they found that between 2000 and 2013 Colorado agencies received more than $47 million through the DOJ’s so-called Equitable Sharing Program, which I think is a complete travesty. And one of the interesting things they point out is that 92% of the equitable sharing forfeitures involved property being taken that was valued at less than $50,000. And what seems like a lot of what happens here is that police – I mean, I’m not saying the Colorado was worse than other places, and I’ll accept your word that it’s better than other places. But a lot of times what will happen is, police and law enforcement agencies somewhere will see something that’s relatively small and therefore it just becomes not worth the time and the lawyers’ fees for whoever had their property stolen by the police to go try to get it back. And this is the kind of stuff –and again, I’m not saying this is everywhere.

BRAUCHLER: Right.

KAMINSKY: I’m not saying it’s every day. I’m saying it should be never. And I’m saying we should change the law in Colorado to make sure that it can’t happen. I don’t really care that you’re telling me that it doesn’t happen very much. Maybe you might even be telling me it doesn’t happen at all. I don’t care. I don’t want to be possible.

BRAUCHLER: If that’s the case, then we’ve got to change a whole bunch of laws, right? Because we could–.

KAMINSKY: Good! Then change them!

BRAUCHLER: Yeah, but we could outlaw a whole bunch of behavior that we don’t because of the other safeguards that are in place. And to suggest that – there are people that come to court without attorneys on these issues and say, “Hey, look! Here’s the deal. I own this. I own–.” You know, we don’t just take cars. If the car belongs to someone — not the person who was driving it when they committed the crime, whatever that is, we don’t forfeit that car. I mean, there are a ton of safeguards in place. And I’m not here to tell you that you should just trust the Man. I have never advocated for that, even though I am the Man.

KAMINSKY: Right!

BRAUCHLER: I’m not saying that. I’m saying that the basis upon which this bill was put forward, and the one that I am most sensitive to, is the idea that we are policing for profit. And that the police on our streets — these men and women who are doing great work – are out there making these unscrupulous, unethical decisions about people’s property because we have a weakened system that allows them to do it. Neither of those things are true. The cops aren’t corrupt, certainly in our jurisdiction, as to what they do. And the process is not as easy as people are led to believe, which is they show up, grab something, turn it into profit, and then upgrade their microwaves. It does not work like that in Colorado! It hasn’t worked like that for a long, long time. Having said that, I believe in 1313. I believe in the compromises that we were able to get through that bill and I think this thing ultimately is good for the community. And that’s why I supported it, and that’s why he CDAC supported it. I think law enforcement is still a bit upset about it because of the way it was pitched, and they were cast as the bad guys in all this, when they were, like, “Find me a case where we’ve done something that you don’t like,” [and] they can’t come up with one. They didn’t have a single case where someone came up and testified at that Senate bill to talk about it. That’s because it doesn’t happen in Colorado. And that’s my biggest gripe with this, is that when the nice lady from Institute of Justice comes on to really talk about how this is going to curtail something doesn’t exist in Colorado. That’s frustrating for law enforcement.

KAMINSKY: And like I said, I would like to see it be impossible in Colorado. Because the fact that it is possible — even though you’re saying it doesn’t happen — is what allows people to think what they might think about cops doing the wrong thing. If it were impossible, then you wouldn’t even have that conversation. I want to bring up — a listener brought up to me, George, a sort of related case.

BRAUCHLER: Yes.

KAMINSKY: I don’t know that you’d quite call it ‘policing for profit’, but ‘justice for profit’, or something like that. Are you aware of this case called Nelson versus Colorado?

BRAUCHLER: Okay.

KAMINSKY: So, it is a case that the Supreme Court decided about two weeks ago. There were a couple of guys who were convicted of — I don’t know what — in 2005 2006. And they were required to pay court costs, fees and restitution to Colorado on top of serving prison time. Both of their convictions were invalidated. They went back to the state to get the money back that they paid the state for convictions that were invalidated. Colorado has a particular law called the Exoneration Act, apparently, that said that they would have to file separate court proceedings, pay for a lawyer or get one to represent them for free, and they would have to prove by — this is a quote now – “by clear and convincing evidence that they are actually innocent in order to get their money back.” And the Supreme Court –this is when there were eight people on the Supreme Court—on a 7-1 vote said, “No way!” Colorado, you cannot do that! You have a presumption of innocence and you can’t just steal their money. And this is the kind of stuff that pisses me off, and it’s not exactly the same as civil asset forfeiture, but it’s darn close. And it makes people feel like that government, –including, getting just a tiny bit seeping into law enforcement — is about the money.

BRAUCHLER: I hear what you’re saying, and I think I know that case, although probably with the great detail you do.  But there was no problem with the process by which the fines were levied once they had been convicted. So, that part is not the issue. There was no overt attempt by government to circumvent any sort of due process stuff.  But I’m in agreement with you and the Supreme Court, that once a court of record comes back and says, “That conviction is flawed and it can no longer stand,” if there is no subsequent prosecution, those people remain presumed innocent and it is very difficult for anybody to envision why then, we would be able to maintain their fines, fees, and other costs associated with that. I agree.

KAMINSKY: All right, George so final question for you on this. If you could snap your fingers and eliminate the possibility of civil asset forfeiture being used in Colorado, would you do it? And let me just clarify for a second. I said earlier — I don’t know if you heard this part — I could live with someone’s stuff being taken the day before charges are filed, right? But not a year before, not two years before, not if there are never charges filed. So those are the kinds of cases that I’m talking about. You take someone’s stuff and then you can — you never file charges! Or, you wait a year. You know, I just think that shouldn’t be possible.

BRAUCHLER: Well, let me paint a picture for you. Let me paint a picture for you. That does — We don’t do this. But I know that this takes place in other places. Somebody is committing a crime, right? They get investigated. They get brought into – let’s call it, some governmental agency.  And the governmental agency says, “We are going to indict you for X, Y, and Z.”  And they even have an attorney! The attorney is with them. The attorney can talk to them and review what they’ve got. And they say, “We’re going to indict you, or, you can assist us and forfeit these ill-gotten gains, or whatever these pieces of criminality are, and we won’t drive on with the indictment. Now that’s like a plea bargain in advance of charging [inaudible].

KAMINSKY: No, it’s not! It’s blackmail!

BRAUCHLER: It’s –?!?! How is it blackmail?!  Let’s say they indict him. They indict him, right?

KAMINSKY: Yeah.

BRAUCHLER: And his name is drug through the mud, he gets charged, and then they sit down with him and say, “Listen, here’s what we want to do with the case, but we want you to give up these ill-gotten gains.” And he says, “Great!” Was that blackmail to do that? I mean, we trade liberty for deals all the time [inaudible].

KAMINSKY: Without him ever being convicted, or pleading to anything?

BRAUCHLER: Well, that’s what I’m saying. Part of the plea bargain could be – what if it was a deferred judgement? What if it was, “Hey! This is a charge that we don’t want to pursue. We want you to not have profited from whatever it is.” Now, if what you’re saying is, “Hey, I don’t think the prosecution ought to ever be able to plea bargain away a case where they seek a forfeiture,” you’re going to have a lot of unhappy defense attorneys and defendants. Because many times these folks would say, “One, I don’t want to go to trial and become a convicted felon and face prison. And two, if the only thing I need to do to keep my name clean and having to go to prison as a convicted felon, is to give up the stuff I got by virtue of my criminal conduct, I’m willing to make that trade.”  Why isn’t that okay? If they’re represented. I’m not talking about purely one-sided, coerced, no one has legal representation thing. Why can’t people–?

KAMINSKY: Isn’t the answer obvious, George? Isn’t the answer obvious? They’re buying their way out of being convicted of something that — you know, in our hypothetical here — that they did. They’re buying their way out of having – of justice being applied to them. I understand your point. You’re absolutely right, that there are defense attorneys who would be upset by this. And as a civil liberties minded person, I tend to side with defense attorneys versus prosecutors, depending on the case, at least half the time, right? At least half the time! I know, not 90-10, George, but I’m a civil liberties minded guy. But in this case, I don’t want the prosecutor to have the incentive to be bought off, and I don’t want the defendant note not 9010 George but I must civil liberties my but in this case, I don’t want the prosecutor to have the incentive to be bought off, and I don’t want the defendant to have the ability to buy off the prosecutor, and say, “Don’t charge me with my crime. I’ll give you a bunch of money.” No way! No way!

BRAUCHLER: What if it’s not money? What if it’s some forfeited asset? [inaudible]

KAMINSKY: That’s still money. They’re all the same. Assets are assets. I don’t care whether it’s cash or the Lamborghini, or whatever it is. But George, I’m out of time. I think we will have another–.

BRAUCHLER: Oh, God. Of course! Dang it, Ross!

KAMINSKY: I know! We’ll have more time to discuss this and other things in the future. I appreciate the spirited discussion. And I appreciate the really gracious way in which you are willing and able to come onto the show and lose a debate to me, and we can still be friends and you still come back.

BRAUCHLER: [laughs]

KAMINSKY: So, I love that about you George.
BRAUCHLER: Yeah, next time we’re in person we’ll have that conversation.

KAMINSKY: [laughs] Thanks for your time! And, uh, thanks a lot, George! I appreciate it! [It is] so cool that George, who might be the next governor of Colorado, was actually listening to the show early on to hear that, to respond to it.