The Colorado Supreme Court has swatted down an attempt by Mesa County Clerk and Recorder Tina Peters to force the judge presiding over her criminal case to provide testimony about Peters' alleged misconduct — specifically, that she video-recorded court proceedings and lied about it.
The sprawling controversy in Mesa County originated with the allegations that Peters and her deputy clerk, Belinda Knisley, were responsible for a security breach of their office's election equipment. Knisley has since pleaded guilty to multiple misdemeanor offenses and has agreed to testify against Peters.
It was in Knisley's criminal case, in the courtroom of District Court Judge Matthew D. Barrett, that prosecutors reportedly spotted Peters recording the proceedings on her device, in violation of courthouse rules. The district attorney's office then sought to hold Peters in contempt of court. Peters responded by seeking to take a deposition of Barrett — totaling two hours — to discuss the minutes-long exchange.
But the Supreme Court concluded the judge who permitted the limited deposition of Barrett decided wrongly when he held Barrett's testimony was simply relevant, as opposed to "necessary."
"It appears undisputed," wrote Justice Richard L. Gabriel, "that Judge Barrett did not personally observe whether Peters had been recording. Accordingly, his testimony would neither corroborate nor refute the allegation that Peters was untruthful."
Daniel P. Rubinstein, the Mesa County district attorney who is pursuing the contempt citation against Peters, applauded the court for spiking Peters' effort to take Barrett's testimony.
"I am happy to see this ruling as it will allow us to proceed with the contempt trial, as my constituents are eager to put the matters involving Ms. Peters behind them," he said.
Without deciding that Peters' deposition of Barrett would be for an improper purpose, the Supreme Court acknowledged the prosecution's fear that Peters would try to use the judge's statements to disqualify him from handling her criminal trial, as she has tried to do in the past.
In August, Peters pleaded not guilty to 10 felony and misdemeanor charges including identify theft, conspiracy and attempting to influence a public servant. Knisley, who was charged with burglary and cybercrimes, was sentenced to probation and community service last month for her own role in the security breach at the county's elections office.
It was during a Feb. 7, 2022 hearing in Knisley's case that employees of the district attorney's office allegedly saw Peters recording in violation of the courthouse rules. Rubinstein brought it to Barrett's attention, saying he had seen the screen on her device and "indeed it's recording."
"Were you recording, ma'am?" Barrett asked Peters. Although three members of the prosecution believed they saw her record video, Peters denied it.
"So, he just completely mis-saw what was ever on your screen?" Barrett pressed her.
"You know, they're just wrong," she insisted. After issuing a warning that no one may record the proceedings, Barrett continued with the rest of the hearing.
Later that month, Rubinstein sought to hold Peters in contempt.
"Tina Peters was not truthful in her answers to the court about whether she was recording the proceedings," Rubinstein alleged. "The conduct of Ms. Peters in being dishonest with the court is offensive to the authority and dignity to the court."
Then-District Court Judge Lance P. Timbreza evaluated the request and permitted the contempt case to proceed. He reasoned that if Peters actually recorded, it was possible she simply did not know the rules. But what rose to the level of contempt was Peters' alleged untruthfulness to Barrett.
Peters then attempted to take Barrett's testimony about what happened during the February hearing. Chief Judge Brian J. Flynn determined that under the circumstances, the judges in Mesa County should not hear the request. He asked the state's Judicial Department to reassign the contempt proceedings to a judge outside the county.
In August, Chief Judge Paul R. Dunkelman of the nearby Fifth Judicial District ruled that Peters' lawyers could not inquire about Barrett's "mental processes," but otherwise it would be permissible to question him about "information and knowledge that no other person other than Judge Barrett has."
Dunkelman added that he was not determining whether Barrett "is a necessary witness."
Barrett then appealed to the Supreme Court. Represented by the Colorado Attorney General's Office, the judge argued his testimony was not necessary because he did not personally observe Peters' allegedly recording. He contended Dunkelman's order provided a roadmap for defendants to "manufacture a dispute" in order to prompt a contempt case, then use those proceedings to kick the judge off of the original case.
As it stood, Peters' attorneys already tried to force Barrett off of her criminal case, alleging he had exhibited "apparent hostility and ill will toward" her by deeming her a flight risk.
Peters countered that Barrett was in "the best position to observe the entire courtroom," so a two-hour deposition would be helpful to understanding her alleged act of contempt.
The Supreme Court acknowledged there are "rare circumstances" in which a judge may be summoned to testify. But here, where a transcript had clearly documented Peters' denials that she was recording and Barrett did not observe what she was actually doing, the court found his testimony would be unnecessary in the contempt case.
"To the extent, as Judge Barrett suggests, Peters is seeking his deposition, at least in part, to explore his mental processes for use in further support of her efforts to disqualify him from presiding over her criminal case," Gabriel wrote, "such a deposition would far exceed the narrow grounds on which judicial testimony has heretofore been deemed permissible."
Peters' attorneys did not immediately respond to a request for comment. Despite her pending criminal prosecution, Peters has left open the possibility of running to be the chair of the Colorado Republican Party. This year, she was unsuccessful in her bid to be the Republican candidate for secretary of state.
The case is People v. Knisley and concerning Tina Peters.
