CO Appeals Court Upholds Peters' Conviction But Overturns Sentence: "She Had Fulfilled Her Duty"

“Peters contends that the trial court violated her First Amendment right... We agree."

I received a statement from Peter Tickin Thursday night after reaching out for comment about whether he was going to appeal the court’s decision denying Peters’ arguments on the Presidential Pardon.

“The Colorado Court of Appeals got it all wrong except for the obvious violation of Tina Peters’ first amendment rights and her sentence, which even Governor Polis could see was unduly harsh. The trial of Tina Peters was not anything near fair. Unlike in a murder case which the same court reversed today, because one of the jurors was biased, where one of the jurors was biased in Tina Peters’s case, that was no problem.

About a week ago, even the Taliban let a Colorado resident go free, but Tina Peters remains in prison, tonight. This is while a state senator who actually committed fraud and forgeries was able to walk away from the courthouse after her sentencing of probation and community service for the same charges.

Unfortunately, the Colorado Court of Appeals just kicked the can down the road rather than to do the honest responsible thing, and give her a new trial, after her kangaroo trial. She remains in prison after 549 Days. Now, the Court of Appeals is sending Tina Peters back to the same district court for resentencing. This is terribly disappointing. I thought that the Court of Appeals had a better understanding of the issues. Apparently, they did not.”

You can read the appellate briefs which the Court considered on TinaPeters.us and decide for yourselves. She was innocent and she is an American hero.”

— Peter Ticktin, Counsel for Tina Peters

At Christmas, I wrote about the competing narratives of Peters’ motives in my monthly column in Glendale Cherry Creek Chronicle.

“To some, Peters is a villain … a threat to democracy … a criminal that got what she deserved. To others, she is a hero … a canary in the coal mine … a political prisoner … a victim of weaponized government and asymmetrical justice. She’s something else, too: a sick, septuagenarian woman spending the holidays in prison because, as she tells it, she believed that her sworn duty mattered more than the personal consequences.”

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After the appellate hearing in January, I said Peters would be getting relief of some sort:

“From the court granting Peters minimal relief to remedy unjust defects in the record and resentencing her, to setting up criminal and civil actions against the Colorado government that will ensure years of litigation as they finally face accountability for being unconstitutional, despicable despots (and worse). I expect something resembling the former, but here’s hoping for the latter.”

In other words, I called it. Resentencing is the order – and further appeals are expected. Maybe… Mesa County District Attorney Dan Rubenstein seems to think so.

“The ruling on sentencing is more limited. The appellate court did not find that the sentence was excessive or inappropriate, but instead identified a narrow issue requiring reconsideration. Unless Ms. Peters accepts that ruling and concedes the absence of any error in her convictions, the case will likely proceed to the Colorado Supreme Court, and the trial court will remain without jurisdiction during that process.”

Let’s dig in.

The Legislature Didn’t Intend for You to Explain Yourself

“Peters contends that the trial court erred by excluding evidence related to her statutory duty to preserve election records, see 52 U.S.C. § 20701, and her motive to preserve such records and investigate potential election fraud. We disagree.”

The government says – and the government trial court agreed, and now the government appellate court affirms – that Tina Peters’ reasons are irrelevant.

“Finally, the court limited Peters’s counsel’s ability to crossexamine Romero and Casias regarding a purported Dominion and SOS election scheme to erase evidence of online manipulation of the voting machines during elections, finding that the proposed questioning sought irrelevant information, any probative value of which was substantially outweighed by the danger of unfair prejudice.”

Do not misunderstand: They mean “unfair prejudice” against the government. That is, allowing Peters to present evidence of her motives would unfairly prejudice the government’s characterization of her motives before the jury.

Seriously.

The Court of Appeals affirmed that Peters’ “why” would unfairly prejudice the jury against the government. In a criminal trial. Against a defendant facing (now serving) nine years.

Now consider that eight years and three months of that is for the misrepresentation of Conan Hayes as Jerry Woods.

Not for hiring Conan Hayes.

Not for providing access for Conan Hayes.

Not for Conan Hayes taking images.

Not for Conan Hayes’ observing the build.

For the misrepresentation that Conan Hayes was Jerry Wood. From the decision:

“The undisputed evidence showed that, before the Build, Brown had already made several backups of the election records. In addition, at Peters’s behest, Hayes had created a forensic image of the voting equipment server before the Build. And Peters was not charged for any crimes arising out of either of those acts. In other words, she had fulfilled her duty as Clerk and Recorder to preserve the election records days before the Build. Thus, Peters’s statutory duty to retain and preserve election records and her actions fulfilling that duty had no bearing on whether she engaged in the illegal conduct for which she was charged.”

The election meddling narrative should be dead.

Peters was not charged for any crimes arising out of either of those acts.

Peters was not charged for any crimes arising out of either of those acts.

Peters was not charged for any crimes arising out of either of those acts.

“Accordingly, the trial court did not abuse its discretion by prohibiting Peters from introducing evidence regarding her motives to retain the election records.”

From there, it gets predictable on the other claims:

“We disagree because, for reasons already discussed, this evidence goes only to Peters’ motive for her actions and was thus irrelevant to her charges.”

To sum up, in the facts, the evidence, and the law of this case, the misrepresentation of Conan Hayes as Jerry Wood is the foundation of Tina Peters being a felon – at all. It’s the whole enchilada, no matter the narrative.

This case is about a misrepresentation intended to influence three public officials. It is not – and has never been – about election crimes. That’s always been intentional storytelling to generate outrage and public support for the weaponization of the government.

And yet…

“The original sentence that the court imposed on Tina Peters for illegally tampering with election equipment was fair and appropriate,” Attorney General Phil Weiser said in an official statement. “Whatever happens with her sentence, Tina Peters will always be a convicted felon who violated her duty as Mesa County clerk, put other lives at risk, and threatened our democracy. Nothing will remove that stain.”

Bro, what?

There was no election tampering. There wasn’t even an election, actually. This case doesn’t involve election statutes or election crimes. This case is about a single misrepresentation — a single lie.

But that single lie — that Conan Hayes was Jerry Wood — is all that’s left of the storytelling. And the storytelling is important.

“The Big Lie” is the big lie.

Joe Biden didn’t get 81 million real, lawful, American votes. They’ve gone to extensive lengths to distract from that central issue. The election narrative is the justification for the obvious asymmetry. From “Same Statute Different Outcomes”:

“Jaquez-Lewis is a democrat whose alleged illegal conduct was in service of keeping her democrat seat of power in a system controlled at each level by democrats. Tina Peters is a republican whose alleged illegal conduct was in service of investigating legitimate concerns about how powerful people attain their seats of power in the first place.”

But, per Weiser, Tina Peters “put other lives at risk, and threatened our democracy. Nothing will remove that stain.”

Hell of a story.

Does Anyone Actually Know What’s Going On?

I am a big fan of Justice Neil Gorsuch’s Over Ruled: The Human Toll of Too Much Law (New York: Harper, 2024). One of the ideas explored in his book is that the current legal landscape gives prosecutors enormous power to ruin people’s lives.

And we all just accept it.

It’s an important rabbit hole, and the book is fantastic. CannCon and I covered it on Badlands Book Club (a few books ago). You can find that playlist here.

Anyway, I bring it up — Justice Gorsuch’s book — because of this hilariously embarrassing situation for the “justice system”:

“Thus, the statutory language on which Peters relied in her initial briefing was not the operative language applicable to her case. Compounding Peters’s misstatement of the law, the People failed to correct it in their answer brief. Under the party presentation principle, ‘we rely on the parties to frame the issues for decision’ based on ‘the premise that the parties know what is best for them, and are responsible for advancing the facts and arguments entitling them to relief.’ Compos v. People, 2021 CO 19, (quoting Greenlaw v. United States, 554 U.S. 237, 243-44 (2008)).

To this end, in reliance on the parties’ apparent agreement regarding the operative statutory language, we spent considerable time at oral argument exploring what appeared to be a significant charging error. Specifically, it appeared that the prosecution had charged Peters with the misdemeanor language — i.e., ‘might subject’ — but treated the charge as a felony. No one at oral argument informed this court of the intervening statutory amendment.

Not until over a week after the oral argument did the People bring to our attention the statutory amendment. We then gave Peters an opportunity to respond to this new information. It is now clear that, notwithstanding the extensive inquiry of the parties during oral argument, Peters was charged using the correct operative language, and the offense was properly identified as a class felony.”

If you read my three takeaways from the appellate hearing, you will recall that my second takeaway was that the court didn’t seem happy with either part and had real issues with the case. I reckon that sentiment was amplified when the court realized they spent “considerable time” on an outrage-inducing due process violation that didn’t actually exist.

I’m certainly annoyed by it. I was contemporaneously outraged alongside the court.

Turns out, we all got hoodwinked, and the real takeaway is that no one – not the prosecutors, not the defense counsel, and not the court – knew what the actual law was when they passionately argued its merits and defects back in January.

How embarrassing.

You Can Say That on Television

Despite upholding all aspects of her conviction, the Court did – as I predicted in January – give Peters some relief on Thursday.

“Finally, Peters contends that the trial court erred during sentencing because it (1) considered only factors favorable to the prosecution; (2) violated her free speech rights; (3) violated her Eighth Amendment rights; and (4) improperly considered her contempt conviction. Because we agree with the second contention, we need not address the other three.”

The overt bias shown by the court in sentencing, his consideration of uncharged conduct, and his explicit declaration that her “danger” is her speech are egregious.

“Peters contends that the trial court violated her First Amendment right under the United States Constitution and her right under article II, section 10 of the Colorado Constitution because it punished her based on her protected speech regarding allegations of election fraud. We agree.”

The court further rebukes the trial court a bit later:

“...the trial court’s comments about Peters’s belief in the existence of 2020 election fraud went beyond relevant considerations for her sentencing. Her offense was not her belief, however misguided the trial court deemed it to be, in the existence of such election fraud; it was her deceitful actions in her attempt to gather evidence of such fraud. Indeed, under these circumstances, just as her purported beliefs underlying her motive for her actions were not relevant to her defense, the trial court should not have considered those beliefs relevant when imposing sentence…The tenor of the court’s comments makes clear that it felt the sentence length was necessary, at least in part, to prevent her from continuing to espouse views the court deemed ‘damaging.’ … But the court failed to acknowledge that Peters is no longer the Mesa County Clerk and Recorder. She is no longer in a position to engage in the conduct that led to her conviction. So it cannot be said that the lengthy prison sentence was for specific deterrence. To the contrary, the sentence punished Peters for her persistence in espousing her beliefs regarding the integrity of the 2020 election. For these reasons, we conclude that the trial court obviously erred by imposing sentence at least partially based on Peters’s protected speech.”

It’s important to realize that every court that has considered Peters’ First Amendment claims has, at least partially, affirmed her First Amendment concerns. Now the Colorado Court of Appeals has overturned her sentence because those concerns were warranted. And despite the government narratives:

“And, of course, the court’s improper consideration of Peters’s protected speech to impose a longer prison sentence necessarily means the error was substantial.”

What was it Dan Rubenstein said at the top?

“The appellate court did not find that the sentence was excessive or inappropriate, but instead identified a narrow issue requiring reconsideration.”

So, that was a lie.

Even When You Win, You Lose.

We’ll end tonight where we began, with my “Christmas in the Clink” column – because it holds up in light of Thursday’s ruling:

“Whether one believes Tina Peters is a heroine or a fool, brave or misguided, justified or reckless, what’s happening to her is not justice. It’s politics. Colorado holds her like a trophy, they apply an inequitable judicial standard, and it’s all undeniably political. Of course, for a sick, 70 year old cancer survivor, it’s not just political. It’s also a likely death sentence.”

Motions will be flowing back in Mesa soon, and I’ll bring you the updates as they happen.

#freetina

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