Wake Up! with Randy Corporon, George Brauchler & Polly Lawrence, February 11, 2015
Station: KLZ, 560 AM
Show: Wake Up! with Randy Corporon
Guests: Brauchler, Lawrence
Link: https://soundcloud.com/randycorporon
Date: February 11, 2015
Topics:
HOST RANDY CORPORON: [It’s] very rare that I get my story ideas for the show out of The Denver Compost — uh, The Denver Post, but there was an opinion piece in there that caught my eye and so I thought it was very important to try and get ahold of our good friend from the current District Attorney for the 18th Judicial District, George Brauchler. George joins us now. George, welcome back to the Morning Show. It’s been a while.
18th JUDICIAL DISTRICT ATTORNEY (ARAPAHOE COUNTY), GEORGE BRAUCHLER: It has, Randy. Thank you. And if this cell phone coverage is spotty, forgive me. I’m just in a weird place right now, driving into the courthouse.
CORPORON: Very good. Before we get into the topic that’s on the table, you are The Man right now. You’re in the midst of jury selection for the Holmes trial, that’s the Aurora movie theater shootings. Where is that thing at? What little bit can you tell us about what is going on?
BRAUCHLER: Well, if you look at this process — the giving birth to a jury, here — there’s three trimesters. And we have just gotten through the first one, which is going through the juror questionnaires for several thousand prospective jurors. That ended on Monday. And then, we are this morning beginning the individual jury selection process, which the judge has given us up to sixteen weeks to complete, which, buddy, I’ve got to tell you, that just sounds like such a long period of time. I’ve never done anything quite like that in the courtroom. And then the third phase, once we get it down to about 120 jurors, will then be to go into what people traditionally know as general jury selection. And we’ll a have a couple hours per side, we’ll pick a jury, and then it’ll be time for kick-off.
CORPORON: Wow! It is just such a marathon. I’ve done multi-week trials, multi-day trials, picking juries and each day is just a — it’s non-stop, between — from the last night to the next morning, you’re working, you’re changing strategy, you’re doing so much. So, I know you can’t get into the meat and potatoes of it, and that’s not why we have you on. Before we turn our attention to the topic, though, I just want to tell you, you know, I had a great relationship with your predecessor. I do a lot of work in the 18th Judicial, whether it’s divorce, civil, or criminal defense. I was in, working with your deputies yesterday on two separate criminal cases where something unfortunate happened, but it was not criminal. Those cases were dismissed, appropriately and easily, and without, you know, a whole lot of falderal. And it was just simply appropriate. And, uh, whatever you’re doing, you’re doing it well.
BRAUCHLER: Well, I appreciate that. You are a magician, then. Because, I mean, to walk in and get guys to dismiss cases, as most people know, I mean, we want to do the right thing here, but that is not the norm. I mean, most people come in and say, “Hey, make my case go away.” And there’s usually something there, but it sounds like you did some great advocacy.
CORPORON: Well, and it’s just one of those magic situations where the facts laid out, as well. But it is so good to know that people are open to that possibility. It’s not about, you know, my track record, “I’ve got to have every win,” or whatever. Anyway, don’t want to get too bogged down in that.
BRAUCHLER: Well, thank you, though.
CORPORON: Yeah! No, it’s terrific and people should know. George Brauchler and District Attorney — Democrat District Attorney from Pueblo, the 10th Judicial — Jeff Chausner— you guys had an opinion piece in The Denver Post. It’s called “Office of Public Defender Must Be Transparent”. We’ve linked up to it on our Facebook page, Wake Up! with Randy Corporon. Before we bring Polly [Lawrence] on, talk to us about what this is all about — what the problem is.
BRAUCHLER: Well, one of the things that we’ve been seeing over years now, is sort of a stagnation of cases in Arapahoe County. And I take no pride in saying that. In just Arapahoe County — the 18th Judicial District, as a whole — in terms of measuring how long it takes for a case — a criminal case — to progress from start to stop, it’s the worst in the state of Colorado. It’s ranked 22 out of 22 jurisdictions. And it has been like that for over a decade. And so, one of the things we’re trying to look at, is, “Look, how are we staffing versus the, you know, whether it’s civil attorneys, criminal, private attorneys, public defenders.” And there have been a bunch of other issues related to this: policies about how do you screen these applications to determine whether or not someone is quote-unquote ‘indigent’ — um, numerous questions that have come up for us. And every time we’ve sought answers, the Public Defenders Office has said, “We don’t have to answer your questions. We’re exempt from the open records act because we’re part of the Judiciary.” Along with that, the media has been, you know, straight armed into not getting information on any of these same practices, even cases that the Public Defender no longer represents someone on. They can’t find out any information on how tax money is spent. So, Jeff and I sat down and we started — and a bunch of other DAs, by the way, feel this way. It’s just Jeff and I wrote that generated the letter. [We] sat down and went through some numbers that are publicly available, that the public defenders couldn’t keep us from getting. And what we found was, and you saw this in the article, over the last ten years, the state of Colorado has filed 10% less felony cases than they did in 2004, in 2014. In 2014, we filed 45% less juvenile cases than we did in 2004. Now, there’s a million reasons for it, but when you see a decrease in workload like that, you’d think, “Well, we must be seeing the same sort of stagnation or decreasing budgets.” So, in our case, in our office, from 2010 to 2014, our overall budget decreased by 3.6%. Then we looked at the Public Defenders Office, and my man, heh, their budget between 2004 and 2014 has grown 260%.
CORPORON: Well, that’s an incredible number! And let me just step in here for a second. I was trained by one of the finest public defenders that I ever met, back in law school, for the trial team, for the University of Denver — a fantastic lawyer. I considered [working for] the Public Defenders Office. It’s an important, necessary service under our Constitutional and judicial system for people who truly cannot afford to defend themselves when charges are brought by the State. Critical. Important. It’s all good. Nobody is seeking to look into the files, between that lawyer in the Public Defenders Office and their criminal client. Nobody is looking to get into any of those facts or personal information, or attorney-client privilege. This is all about the funding and how taxpayer dollars are being used, correct?
BRAUCHLER: No doubt. I mean, if someone were to try to claim that Polly’s bill as a vehicle to get into individual cases, and trial strategy, and attorney-client privilege, I would come out and say, “Absolutely not! That’s an abuse!” I firmly believe in the Sixth Amendment. I firmly believe in Giddy V. Wainwright that says the State is obligated to provide some defense for the indigent. I believe in those things. This is completely different. We’re talking about a public defender and alternate defense counsel budget that will approach $110 million dollars this year — $110 million! And while people are bashing their teeth and wringing their hands over, “Do we have enough funds to fund a felony DUI bill for people who drive drunk ten, fifteen times on our roads,” we’re throwing over $100 million at organizations that have told us, “We don’t have to tell you how we spend it.” That doesn’t make sense for Colorado.
CORPORON: So, we’re talking about transparency, we’re talking about the use of taxpayer money. We’ve mentioned Polly a couple of times. The Polly we’re talking about is State Representative Polly Lawrence from House District 39. Polly, we’ve been friends since before you were elected. I don’t get to see you very often now, but you’re definitely one of the good guys, so to speak. We need to have you on the Morning Show more often, but I think this is your first time. Welcome!
STATE REPRESENTATIVE FROM DISTRICT 39 POLLY LAWRENCE: Well, thank you very much for having me. I appreciate the invitation.
CORPORON: So apparently you became aware of this issue and you have put together a bill which you are sponsoring. What is the bill title? And tell us a little bit about what it’s all about?
LAWRENCE: Oh, you’re going to ask me technically what’s my bill title is?
CORPORON: Oh! Well, not the title. Just in general, describe it for folks.
LAWRENCE: It’s addressing open records in the Public Defenders Office.
CORPORON: Yep.
LAWRENCE: And to George’s point in the conversation you were just having, you know, I view this as just a need for transparency. I don’t want attorney-client information. That is specifically exempted in this bill. But the taxpayers of Colorado have a right to know how their dollars are being spent. And the fact that this office is saying, “We don’t have to disclose anything — not our administrative costs, not how I allocate resources, nothing” um, to me, that just raises a big red flag, because again, it’s taxpayer dollars, and we should able to know how it’s being spent.
CORPORON: I’m going help you out here a little bit. It’s HB 15-1101. It’s called The Public Defender ADC —that means Alternative Defense Counsel — Records — Open Records. And really, quite that simple. What is the Public Defenders and Alternative Defense Council position on why simply their finances —their utilization of taxpayer dollars — should not be subject to public scrutiny? That because they’re attached to the Judiciary some way, that’s it?
LAWRENCE They’re saying that they’re part of the Judicial branch, they’re not subject, and because of Rule 146, they would have to get permission from their client to release any information, whether it has anything to do with that specific case or not. And I just find it fascinating that the Court Administrator will release information under a CORA request, and the AG’s office is subject to a CORA request, and they represent clients across the state. But this office has used that as their blanket defense not to release any information.
BRAUCHLER: Well, and Randy, you know this because you’re an attorney, but for you listeners, when Representative Lawrence is talking about 126, there are rules of professional conduct that govern what attorneys can and cannot do. And this Rule 1.6 that the Public Defenders are now throwing up is an attempt to say, “Kill this bill in its entirety, because we are going to interpret it to mean that this bill would require us to turn over that exact same attorney-client and work product information that is actually exempted from this bill, by the very terms of the bill.” And so they’ve tried to hook in, “We don’t need to tell you anything about our operations, how we spend our budget,” by doing this. What’s interesting is not just what Polly says — it’s true, which is the Attorney General’s Office who has clients, and they are still subject to CORA and comply. But the federal government, in a statute called 18 U.S. Code 3006-A, mandates that for Alternate Defense Council, they file a detailed voucher with the Courts that is accessible to the public, of how they spend money on investigators, experts, all of these things. Now, it is a weird place to be when you say, “As Coloradans, we want to be at least as transparent as the federal government.” That’s bizarre.
CORPORON: Can both of you stay with us through a short break?
BRAUCHLER: Sure.
LAWRENCE: Sure.
CORPORON: All right. I want to continue our conversation […] on this new bill. [It] hasn’t been voted on yet. It’s out there. The language is clear with regard to protecting attorney-client privileged information and attorney work product. We’ll look at the text of the bill. We’ll link up to it on our Facebook page, Wake Up! with Randy Corporon. And we’ll try and figure out why in the world the Office of Public Defender would be afraid for taxpayers to see how they’re spending your money. Anyway, we’ll wrap up our final segment on the Wednesday edition of the KLZ Morning show with State Representative Polly Lawrence, District Attorney George Brauchler on this bill to shine some light on the spending in the Office of Public Defender. Final segment ahead on the Morning Show, KLZ, 560.
[commerial break]
CORPORON: […] We’re talking about the Office of Public Defender, new legislation that State Representative Lawrence is promoting to subject them to the Open Records that all other government agencies have to adhere to. And the bill itself is very protective of the attorney-client privilege. It says, “Any communication between a client and his or her attorney or the attorney’s agent made during the course of the attorney-client relationship, or any other information derived from such communication obtained during the course of such relationship, or any materials prepared by the attorney or the attorney’s agent in anticipation of litigation for trial, or the contents of any client file acquired, prepared,—or prepared in anticipation of litigation” — those are all exempted from an open records request against the Office of Public Defender. So, George, I’ll ask you first, how in the world can the public defender use attorney-client privilege to oppose this measure?
BRAUCHLER: No, they can’t. But the trick here is, as you know, is all they have to do is to give their — in my opinion — Democrat caucus some arguable cover to vote against this bill. And the great concern here is that without any further scrutiny, people view this, on that other side of the aisle, as something that is meant not to provide transparency and accountability to a state agency, but as an attack on the Public Defenders Office, who I think they’re ideologically aligned with. And you can tell that from a lot of the criminal justice bills that have come out of the House. I want to point out something, though, that I think Polly has not talked about, which I think she should take pride in, in this bill. And that is, it is such a nonpartisan, no-brainer, responsible government policy position, that [State Representative] Rhonda Fields has signed on to cosponsor this. I mean, think about that — that Polly and Rhonda have very little in common ideologically, but when it comes to accountability the both agree, even the Public Defenders Office ought to be open to it.
CORPORON: Yeah, that’s very, very interesting. You were reading my mind, because as I was scrolling through this bill, I went up to the top to look at the sponsorship. And I saw Lawrence and Fields, and I thought, “Really? Rhonda Fields? That is a rock-solid Democrat.”
BRAUCHLER: yep.
CORPORON: So, maybe there is a chance. And we lost Polly, but maybe she’ll call back in, because I really want to find out kind of the scheduling. What can people do to come in and hear about this and talk about it. What do you know about it?
BRAUCHLER: So, yeah, Thursday afternoon — so tomorrow afternoon— I don’t think it’s the first bill up in the House Judiciary Committee. If you haven’t been out there, [there’s] plenty of seating. It’s a pretty nice new set up they have. Um, and it will be the second or third bill up, so I don’t think you need to get there promptly at 1:30 when things get underway. Representative Kagan, who is the chair of the committee, does not typically impose time limits on people who testify. There’s good and there’s bad to that. The bad is, things tend to run long. The good is people get to have their say, and I like that as well. So if people wanted to come out and voice their concern and interest in knowing how the fastest growing state department in Colorado seems to be able to operate in absolute darkness, I think they ought to come out and do it. I mean, let me tell you how this plays out in Court, Randy. I know we’re short on time. In Douglas County, where you and I are — right? — a lot of times, and even in Arapahoe, there are more public defenders than I have prosecutors. We represent the people of the state of Colorado on 100% of the criminal cases. The Public Defenders Office represents less than 50 — maybe 40. It’s hard to tell based on the way they keep numbers. And how is that possible? Why are taxpayers footing the bill for that? And it’s going to lead to more questions, like, are the public defenders now in competition with small businessmen like yourself, because people that would otherwise not qualify for the public defender and go out and seek private representation, are they now joining the ranks of the public defenders’ clientele because the public defenders use them to justify this budget — this giant, swollen [?] up budget.
CORPORON: Very, very interesting. And Polly, I know you dropped off — State Representative Polly Lawrence. I know you dropped off but we talked about the language in the bill that absolutely protects attorney-client privileged information — client file information and that sort of thing. […] So, is there a chance that this bill can get sufficient bipartisan support to actually open the door on Office of Public Defender spending?
LAWRENCE: Well, Rhonda and I are both working really hard with the members of the Judiciary Committee to make sure that we can get enough votes to at least get it out of committee, so that we can have a robust discussion on the floor. I will say that the Public Defenders Office has put a pretty substantial fiscal note on this. They’re saying that it’s going to cost about a half a million dollars and three-and-a-half FTEs for them to comply with CORA requests. But what I’m hearing from other departments, is that’s just part of their administrative costs.
CORPORON: [laughing] Good Lord!
LAWRENCE: They don’t designate a specific person to handle CORA requests when they come in. So, you know, that’s kind of a—.
CORPORON: It sounds like a red herring to me. And Polly, you’re not an attorney. George, I don’t know if you’ve ever done civil litigation. But that’s just like discovery. It’s just being transparent, showing the information that is available so that decisions can be made. It is — it can be a pain in the tuchas sometimes, but it is not so overly burdensome. It is not going to cost millions of dollars to show how taxpayer funds are being used by the Office of Public Defender.
BRAUCHLER: I think Coloradans ought to be intrigued with the notion that the public defenders are saying, “Listen, if you want to know how we spend over $83 million each year, you’re going to have to come up with an extra half a million dollars to know that. I mean, that’s just crazy and contrary to common sense and good government. Um, these guys have put a lot of pressure on the Democrat caucus and even members of Polly’s caucus to vote against this bill, in almost a desperate way. You can sense sort of a heavy breathing panic that’s setting in as we’re very close to pulling back that curtain and finding out the “who is really the Oz” that’s making this budget grow by 260% over the last ten years, when everything else seems to be declining.
CORPORON: Well, 18th Judicial District Attorney George Brauchler, I, frankly, having done jury trials and knowing how consuming they are, you doing a trial that is literally being watched around the world — the Holmes theater shooting trial — I don’t know how you find time to even talk to us about this stuff, much less write letters and opinion pieces for The Denver Post. But, I really appreciate your time this morning, helping sort this out. Good luck today, as you get into the second trimester, as you described it, of jury selection. When do you expect this trial will reach a conclusion?
BRAUCHLER: At its current pace, best guess, if everything continues to proceed forward and we actually get into sentencing, my best guess is October-ish.
CORPORON: Very good. Well, it was good to see you on Saturday. Thank you for your time this morning. Good luck today, and State Representative Polly Lawrence, let’s give you the final word.
LAWRENCE: You know, I would think if they came down between 2:30 and 3:00, they would be here before this bill is being heard. And, I would like to have more input. I think the more people that our committee hears from, who would like to know how their tax dollars are being used, the better it is for this committee.
CORPORON: Well, I spent a good deal of time with Representative Justin Everett ion the first half of this hour, talking about process, asking him about how influential it is for you guys, in the Capitol, to have citizens come, experts to testify, provide information, but also citizens who express their opinions. And a lot of times, it’s just simply a numbers game. You know, if it’s a conservative-leaning bill, Democrats might know how to turn out opposition. That might be 10-1. For these recent Common Core bills, where we’re — liberty-minded folks were in support and we turned out 10-1, but the Democrat majority pretty well ignored us and killed those bills. This is a bipartisan effort. Rhonda Fields, Democrat, and you, Republican, cosponsoring this. This is actually a piece of legislation that has a chance to see the light of day.
LAWRENCE: I think it does. And again, I just think it’s really important across every department that is funded with taxpayer dollars, that we get an accurate picture of what they’re doing with those dollars to make sure that they’re used the most effective way possible.
CORPORON: State Representative Polly Lawrence, we honor and appreciate what you do. If there’s any way we can be of service in future legislation or anything else, be sure and consider the Morning Show a friend.
LAWRENCE: I certainly will, and thanks again, Randy. It’s always good to talk to you.
