In today's legal profession, a lawyer's client is the judge; the nominal client simply pays the bills.[1] Attorneys live in fear of judges, and "are loath to criticize the federal bench, since the judges are appointed for life and tend to have long memories." [2]
Meet Mark Brennan, a plaintiff's lawyer in Colorado.
Brennan's saga, as explicated in detail in Blackburned, is a classic tale of the little guy, forced by circumstance to do battle against City Hall. Reporter Alan Prendergast summed it up this way:
The . . . fiasco is only part of a twisted saga of perjury, cover-ups and discrimination claims that led to [the plaintiff] winning a $1.2 million judgment from a federal jury two years ago. It was one of the largest awards ever entered against the city -- but it was tossed by Judge Robert E. Blackburn, who declared that [Brennan] must have improperly inflamed the jury with his sarcastic, confrontational style of litigation.
Brennan represented Bill Cadorna, a veteran Denver firefighter, in Civil Service Commission and federal court proceedings. As Prendergast explains,
Cadorna had been fired in 2003 for allegedly stealing a $20 cookbook from a Safeway. The bizarre case against him later fell apart, after one of the key witnesses admitted to lying on the stand. But the city refused to rehire Cadorna, telling him that he was too old to be reinstated."
In what some have characterized as an apparent favor to the City, Civil Service Commission Hearing Officer John Criswell conveniently ruled that Cadorna be denied reinstatement because he was over age 50, and had retired following his termination.
The Denver Civil Service Commission upheld Criswell’s decision, relying upon an obvious misstatement of fact therein that Cadorna retired "prior to dismissal." All the evidence showed Cadorna retired after his dismissal. The Commission’s own records verified that he had not retired until after his dismissal. Yet, to avoid reinstating him, the Commission concluded that he had retired before he was fired and therefore, there was no dismissal to be appealed.
In Denver, this is how things get done.
Brennan advised Cadorna in 2003 he would not litigate Cadorna’s claims in federal court, as he did not want to become mired in years of federal litigation. However, when Cadorna was still unable to find other counsel in 2004, Brennan sued the City on his behalf in federal court for age discrimination and other civil rights violations. When numerous other expert employment attorneys declined to take over the case because they regarded it as a "loser," Brennan did not abandon Cadorna. Brennan forged ahead.
The case went to trial; the jury found the City guilty of willful age discrimination, awarding Cadorna $610,000 in back pay, and a like amount in liquidated damages. The judgment totaled $1.22 million, one of the largest ever against the City of Denver.
Brennan recalls how mystified he was that the City made no effort whatever before trial to settle the case, even though the evidence against it was very strong. In retrospect, Brennan says he suspects they had reason to believe even before trial that their "back was covered" -- whatever the outcome. And, sure enough, Judge Blackburn (a Republican, and no friend of employment plaintiffs) set aside the verdict. Why? On the basis of Brennan's alleged misconduct -- though neither the City nor the judge had sought or ordered a mistrial for alleged misconduct during trial.
Brennan says he believes that, although Blackburn did not conceal his considerable hostility to him and his client during trial, it was only after trial that Blackburn decided to overturn the verdict, for reasons unrelated to the truth or the law.
"Cui bono?", Brennan asks. Evidently, the City has lots of friends in low places. Just after Blackburn ordered a new trial, John Gleason, chief of the Office of Attorney Regulation Counsel ["OARC"], served Brennan with a Notice of Investigation. And what of Brennan's alleged misconduct? Investigating Attorney Kim Ikeler and assistant Janet Layne interviewed the jurors. Here are handwritten excerpts from those interviews:
Brennan did a great job ... Don't think [his behavior was] out of line ... thinks City got to Blackburn ... Don't think it was 100% the judge's decision ... think somebody (city) got to him ... City attorneys not very good. [Asked, "Was Brennan abusive"?]: Not at all!
[Asked, "Was Brennan abusive, obstreperous?" Answer]: Seemed arrogant, interrupted a lot, judge got upset a couple of times.[Asked, "Was Brennan trying to disrupt [the] trial?"]: No. [Asked, "Should the Supreme Court [OARC] do anything to Brennan for the way he acted?"]: No.
thought [Brennan's] behavior was normal . . . Didn't believe the reason[s] given for overturning [the verdict] . . . No intent to disrupt; [Brennan] did not interrupt proceedings; [Asked, "Should the Supreme Court [OARC] do anything to Brennan for the way he acted?"]: No
[Brennan] not abusive or obstreperous. Not belligerent . . . Did not disrupt.
Brennan - thought he was good. Would hire him . . . pushed limits a couple of times. Not abusive, belligerent. Behaved professionally . . . Not trying to disrupt. Just trying to prove his point.
Brennan - total advocate for client ... Not abusive. Not disruptive ... did not intend to disrupt . . . Never yelled at judge ... maybe occasionally obstreperous. Very passionate ... good advocate ... Would hire Brennan if needed an attorney ... Blackburn: process obsessed ... Thinks somebody got to judge.
Didn't think disruptive; not intentional at all ... just trying to win case ... appreciated his spark; behaved prof[fessionally]. Did a good job rep[resenting] client. Not abusive, obstreperous, disrespectful.
Let's do the math here. None of the seven[3] jurors interviewed believed that attorney Brennan had acted unprofessionally, but two of the seven believed that Judge Blackburn was 'on the take'.
This was more than enough for Ikeler, who explained to Brennan that he would recommend dismissal of the matter for lack of evidence. But on February 15, 2008, he called Brennan and informed him that his superiors had ignored the recommendation of dismissal, further directing him to issue a Report of Investigation requesting that the Committee authorize a complaint against Brennan.
Would it surprise you to learn that
in the February 15 Report of Investigation in which he requested Brennan’s prosecution, Ikeler forgot to mention that, in their January, 2008 interviews, supra, the jurors all supported Brennan, and that Ikeler failed to state his legal opinion that there was insufficient evidence to support Brennan’s prosecution?
in May of 2008, the OARC served Brennan with a citation?
Brennan's February 18, 2008 Response to Ikeler’s Report was stricken (considered not filed), because it was 24 pages in length [supposedly exceeding "Committee guidelines" that they be limited to five pages, which Brennan says are not published or written anywhere]? Would it surprise you to learn that OARC did not apply this alleged rule to its own Report of Investigation (which was over 20 pages in length)?
Brennan's Answer to this frivolous prosecution both concise and compelling. He argues:
This proceeding was initiated and is being pursued as part of a fraudulent and unlawful conspiracy by the Colorado Supreme Court, "Judge" Robert E. Blackburn, and the City and County of Denver to deprive Respondent of his property interest in his professional license, and liberty interest in his career and reputation, without due process of law, and to violate Respondent's right to equal protection of the law, in violation of the United States Constitu- tion and the Colorado Constitution ... [and] to deprive Respondent of his constitutional and civil rights, including but not limited to his right to free speech, and to take reprisal against Respondent for his successful representation of a disadvantaged person in a civil rights action against the politically and economically powerful City and County of Denver.
Brennan further argues, in his Motion to Dismiss:
Those who enforce the law in Colorado evidently deem themselves above it. [The] OARC, the Denver City Attorney, and Judge Blackburn appear to work from the same playbook, one written not by our Founding Fathers, but by the spiritual and intellectual descendants of Cardinal Wolsey. It is highly unlikely this tribunal will take a chance on offending the very powerful Judge Blackburn, before whom its members or their colleagues may practice frequently, or with whom its members may for other reasons wish to maintain cordial relations. It is likewise highly unlikely this tribunal will take a chance on offending the City of Denver or its many other friends in very high places, who populate the State judiciary or play a major role in deciding who populates the State judiciary.
Is there even a single attorney out there who honestly thinks that Mark Brennan will get a fair trial in Colorado's bar chamber? The prosecution in this case is the OARC, an office/agency of the Colorado Supreme Court. The investigation team is the OARC, an office/agency of the Colorado Supreme Court. And, according to the OARC's directions for filing pleadings, the, "The office of the Presiding Disciplinary Judge acts as the 'clerk' for the Supreme Court." The same agency acts as investigator, prosecutor judge, jury, and executioner.
This is the same OARC which refused to investigate a well-connected and veteran trial attorney for suborning perjury and billing a client for his attendance at an entry-level trial tactics seminar taught by the judge he was appearing before -- not only billing his client ~$940 for his attendance, but indicating on the bill that "This is our judge." This is the same state bar that granted a license to practice law to the cocaine-abusing convicted felon daughter of a well-placed Party operative,[4] while denying an application of a candidate for the State legislature from the other Party two days after he lost his bid for election.[5] This is the same legal and judicial disciplinary system that punished District Judge Jesse Manzanares for reporting suspicions regarding a colleague’s alleged cocaine abuse to authorities (replacing the accuser with the accused as the chief judge of that circuit),[6] but attempted to cover up the theft of a computer by a former state judge[7] -- who used it to download a massive stash of pornography. [link]
An editorial in the Rocky lays out the case for suspicion of obstruction of justice by the Chief Justice.
When asked about his attorney's conduct, Cardona said without hesitation, "Outstanding job. Mark's very passionate. Blackburn tried to shut him down every time he tried to question anybody. He'd let him get two or three questions in and then, 'Nope, testimony over.'" he continued, "He did a good job. And the jury agreed with him," noting, "Even the jurors think there's a fix ... I think there's a fix."
The lesson? If you represent the right people, you are virtually immune to scrutiny by OARC, no matter how massive your subversion of justice or breach of ethics. But if you zealously represent the little guy against a powerful, well-connected client, and win big, don’t expect your good deed to go unpunished. Given the terrible price to be paid, it is easy to see why Colorado attorneys don't have spines.
Today, the rest of the country will celebrate the 217th anniversary of the enactment of our Bill of Rights. Here in Colorado, we can only mourn its passing.
Backnotes:
This is an exclusive story originally reported at KnowYourCOurts.com, adapted and abridged with the author's express permission. As is the case with most whistle-blowers, the one thing contributors to KnowYourCOurts crave most is the public's attention, as sunshine is a marvelous disinfectant.
- See Monroe H. Freedman, The Threat to Judicial Independence by Criticism of Judges: A Proposed Solution to the Real Problem, 25 Hofstra L. Rev. 729, 729 (1997) ("The problem is not that too many lawyers are publicly criticizing judges. Unfortunately, too few lawyers are willing to do so, even when a judge has committed serious ethical violations and should be held accountable").
- Alan Prendergast, Bench Pressed, Westword, February 11, 1999.
- The eighth juror was not interviewed.
- Steve Garnaas, Ex-Felon Hired as Deputy DA, Denver Post, Jul. 4, 1997 at B-01.
- In re Application of Thomas, No. LX 99-23 (Colo. Nov. 9, 2000).
- Karen Abbott, FBI Settles Judge’s Case, Rocky Mountain News, Apr. 27, 2004.
- According to Tony Kovaleski (the lead reporter on the case), this attempt at legal legedermain caused the whistle-blower to contact him directly.