Relief? My Three Takeaways From Tina Peters Appeal

The Court Implied It Has No Choice But to Grant Relief

If you’re new to the case of Tina Peters, find my (years of) reporting here. For just the charges, verdict, sentencing guidelines, and sentence, scan this article before continuing.

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Division Five of the Colorado Court of Appeals heard oral arguments in Tina Peters’ August 2024 criminal conviction on Wednesday, and the matter went unexpectedly well for Peters – to the surprise of both parties and all watching.

Having covered this case since Tina Peters office was raided in August 2021, I personally was shocked.

The three judge panel, led by Craig R. Welling and flanked by Ted C. Tow III and Lino S. Lipinsky de Orlov, diffused the political storytelling of Tina Peters in dramatic fashion.

There are several different threads and implications of yesterday’s proceedings, so here are my top takeaways.

1. The question of jurisdiction dominated much of the discussion despite Peters’ counsel choosing not to argue it.

2. The Judges appeared hostile to both parties, and came to the hearing with their own issues on the handling of Peters’ case by the trial court.

3. The State is committed to their narrative about Tina Peters to a fault, and that implies Tina Peters is going to get some form of relief.

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The question of jurisdiction dominated much of the discussion despite Peters’ counsel choosing not to argue it.

In late December, Peters filed a motion to vacate jurisdiction in light of the Presidential pardon issued by President Donald J. Trump on December 5, 2025. The matter was fully briefed before the court on January 8th, and the court acknowledged that there were two matters to be argued.

Peters’ counsel Peter Ticktin then rose and told the court that Peters did not want to spend time on the jurisdiction question, and would prefer to spend their time arguing the merits of the appeal.

The jurisdiction question focuses on disputing the claims that the President can’t pardon state offenses. The merits of the appeal focus on legal and constitutional errors in the trial court’s handling of the case – insufficient evidence, investigative authorities, denial of due process, unconstitutional sentencing, and Peters claiming immunity as a federal officer of elections, relying on the Supremacy Clause of the Constitution.

Almost immediately, the court asked John Case, who was arguing for Tina Peters, about his Supremacy Clause arguments. The majority of the colloquies centered on whether Peters’ federal duties extended beyond her taking of the original images, with Case repeatedly referring to her “investigative” authorities.

On the merits, Peters’ main defense is that, because of her federal duty, she had to know what was happening to the election records when the Secretary of State’s Office gained access to them, but Peters is not a technical expert so she needed to bring one in. The State’s COVID rule prevented Peters from having anyone but employees present, so she had to make the misrepresentation in order to comply with her federal duties.

The court was skeptical of this legal theory, wondering where the affirmative duty to investigate resides and why her federal duties were not discharged by taking the images in the first instance (the before instances).

At 28 minutes into Case’s 30 minutes, the specific lower court errors were barely discussed. The matter of sentencing was not raised at all. The court suggested that Case preserve some time for rebuttal, and he sat down.

The Judges appeared hostile to both parties, and came to the hearing with their own issues on the handling of Peters’ case by the trial court.

When Case sat down, the vibe in the room was that Peters was losing. Checking out CannCon’s livestream, I’d say that extended outside the courtroom as well. “Are you kidding me that they didn’t raise sentencing at all,” I whispered to Charity McPike in the courtroom.

The Court was accommodating, but at times seemingly hostile to Case’s suggestion that they don’t have jurisdiction. Still, no one was prepared for what happened when Assistant Attorney General Lisa Michaels stepped up to the podium.

Since Peters’ trial, I have raged about the trial court’s refusal to allow Peters to dispute the State’s assertion of her intent. The felonies don’t have an intent requirement, but the misdemeanor for Official Misconduct requires the “intent to receive a benefit for herself.”

Judge Tow summed up this issue:

“The official misconduct charge was charged as with the intent to receive a benefit for herself. Why is it not relevant to the jury for her to say, ‘I didn’t intend to receive a benefit for myself. I intended to do what I thought was my job and protect the election process.’ Why was that evidence not relevant at least to that charge?”

Michaels didn’t expect the question, and her response differed from the State’s position at trial, as I recall.

At trial, Barrett asked the State this question, and the State said the benefit / harm theory for the intent requirement was that Peters did what she did for the internet fame – riding on the private jets and fundraising and being the hero. I don’t have access to the trial transcripts, but as I recall, the exchange took place on August 9th during jury instructions (not in front of the jury).

Michaels didn’t argue at trial, but during these proceedings, she seemed confused that there was an intent requirement.

“I think that it wasn’t based on the benefit to herself, but it was based on the violating the election, the Secretary of State’s rules. And so I think it’s a little bit different.” She referred back to Peters’ intent was the “scheme of deception.”

“But engaging in the plot of deception has no bearing on the charge of first-degree official misconduct,” said Tow. He continued, “Why was that evidence not appropriately submitted to a jury?” Michaels claimed the evidence of her intent was kept from the jury to prevent, as Tow later summarized, the “side show from becoming the circus.”

“When it comes to a defendant’s Constitutional Right to present a complete defense, does a trial court have the ability to curtail that in the interest of not letting the sideshow overcome the circus? Don’t they have a Constitutional Right to present a complete defense? And the only restriction on that I think is out there is that means the Court can prevent cumulative or irrelevant evidence, but I cannot curtail the presentation of relevant evidence.”

This has been my contention since trial. It’s incredibly encouraging that the appellate court is finally asking this question.

There’s a similar issue with sentencing, which finally came up when Michaels had about four minutes remaining – and, again, the court, rather than the parties, brought it up.

Matthew Barrett sneered during the October 3, 2024 sentencing in Mesa County:

“You are no hero. You abused your position. And you’re a charlatan who used and is still using your prior position in office to peddle a snake oil that’s been proven to be junk time and time again.”

“Didn’t he consider uncharged conduct as he referred to snake oil, etc.?” Lipinsky asked Michaels. “Wasn’t he considering uncharged conduct in sentencing her and wasn’t that an error?”

Michaels stunned all within earshot: “I don’t think that’s something that was problematic. All of that was part and parcel of the context of the criminal conduct. She wanted to promote these allegations of election fraud and her scheme of deception, everything she did–”

As a reminder, in the United States of America, the criminal justice system protects the rights of the accused. “Sworn officers” are required to preserve those protections. Michaels was cut off again before she could finish her sentence.

“But she wasn’t convicted of publicly saying there was election fraud,” Lipinsky said.

“You don’t get to ride both horses,” Welling stated conclusively.

“He can’t sentence her more because he doesn’t agree with what she’s says,” Tow said, shaking his head.

WATCH:

The State is committed to their narrative about Tina Peters to a fault, and it’s likely to result in the Court granting Peters some relief.

If you’ve followed my reporting on this case, then you know that the majority of Tina’s sentence – eight years and three months of the nine years – is a result of the four felonies of which she was convicted. Those felonies are one misrepresentation (that Conan Hayes was Jerry Wood) to three people (Jesse Romero, Danny Casias, and David Underwood) and the conspiracy to commit the same.

Turns out, the conspiracy charge was tried as a misdemeanor, despite being charged and sentenced as a felony. This part was crazy and, in my opinion, requires the court to provide — at a minimum — Peters some relief on the F6 Conspiracy conviction.

“Is it your position that a person can still be convicted of a crime with which they were never charged and with which the jury was never instructed, as long as the evidence is sufficient?” asked Tow, incensed.

“Yes, I think that that is what the case law indicates,” said Michaels. “It was one word. ‘Might.’ And it was already–,” Michaels began before Welling interrupted.

“Yeah, but that one word distinguishes it from a felony to a misdemeanor!” Wellington exclaimed.

Tow piled on “In this case, it made an extra sentence. Fifteen more months in the Department of Corrections that couldn’t have been given had it been a misdemeanor conviction. It clearly affects a substantial right!”

Welling summed it up, “I’m confused as to why the People are continuing to maintain that the proper remedy on this isn’t to enter the conviction for the misdemeanor because the indictment used the word ‘might’ and the jury was instructed on that, so that’s what the verdict is. I am baffled as to the position that’s being taken that we can somehow overlook that and still enter the felony because the evidence that was presented at trial would have supported the felony. Are you still maintaining that position in front of us here today?”

“Yes. That is our position,” Michaels responded. WATCH:

Based on the Court’s seeming disdain for the due process violations, I expect that Tina Peters will get some relief.

***Caveat***

I am not an attorney, and below the line, I am speculating for entertainment purposes only.

Based on the specific exchanges and posture of the judges during oral argument, I would expect that the Conspiracy felony is thrown out, the Official Misconduct misdemeanor is thrown out, and the rest is resentenced before a different judicial officer – potentially getting her out with time served.

That is, in my opinion, the minimum that needs to occur to remedy the overt injustice that occurred in Mesa County in August and October of 2024. It’s obviously not enough, but way more than I expected on Wednesday morning before the oral arguments began.

It is also my opinion that the State’s refusal to acknowledge their own errors strongly supports the allegation (and current DOJ investigation) that the State weaponized the government against Tina Peters.

If that is determined, then Peters’ conviction should be overturned in its entirety, she should be immediately released, and the State (and County) should be tried for prosecutorial misconduct.

That’s the spectrum as I see it, considering that courts have broad discretion to act in the interests of justice — and the interests of justice were certainly the Court’s focus on Wednesday:

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.

Hey, this court already surprised me once.

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