Motion to Dismiss

Although he doesn't know what ultimately happened in that case, Myers supports the commission's recommendation that Hufnagel be voted off the bench. "There's a certain amount of respect you have to accord someone of her stature," he says, "but she doesn't comport herself in a manner that fosters that kind of respect. Her conduct denigrates the whole concept of an impartial judge."

Alack of impartiality is probably the most frequent--and serious--charge raised against Hufnagel. Criminal and civil attorneys alike complain about her tendency to go on and off the record so that the official transcript reflects an incomplete version of what happened in a case; her visible impatience with attorneys who want to "make a record" of their objections for appeal purposes; and the kind of leeway she seems to grant favored practitioners in making their case.

In one such instance, she chided the defense for being "overly sensitive" for objecting to several remarks made by prosecutor Craig Silverman in his closing argument, insinuating that a man accused of burglary had a long history as a thief and that even the defense attorney didn't believe in her own case. Although Hufnagel eventually sustained some objections to Silverman's increasingly prejudicial remarks, an appeals court reversed the conviction.

"There are many subtleties to the way she can influence a jury," says public defender Handley. "I have made a record before when she has turned her back to me. I've had to make certain objections on the record in open court because she won't allow me to approach the bench. She's hoping she can wear you down by the glares, by shouting you down when you want to make a record.

"Now, when I make a record and she has her back to me, how important does the jury think my record is about what happened? They probably think, 'This is some greasy defense lawyer; the judge isn't even listening.'"

Hufnagel does enjoy a strong rapport with jurors; she drafted the jury-reform legislation that established one-day/one-trial juror service in Denver and raised the pay for jurors from $3 to $50 per day. But Handley believes she goes out of her way to sway them by requesting that attorneys waive their right to appear when the jury is first called in--thereby giving her more time alone with them--and by other tactics, such as torpedoing efforts to dismiss jurors "for cause," something attorneys routinely try to do during the selection process by eliciting a series of responses from candidates that reveal their underlying biases.

"She'll say, 'Ma'am, this lawyer just asked you a series of leading questions'--in other words, this guy just put words in your mouth," he says. "Then she'll ask a series of questions as leading as anything an attorney might ask. Not only has she rehabilitated the juror, she's shown the whole panel that you are not to be trusted."

Handley also takes issue with the judge's practice of quizzing plea-bargaining defendants on the details of their crimes. Virtually all judges will ask a defendant if he agrees with the facts as presented by the prosecution before accepting a guilty plea, but Hufnagel is known for conducting exacting inquiries into the accused's behavior and motives. A guilty plea involves some waiver of the right against self-incrimination, Handley notes, but he describes Hufnagel's interrogations as a "rub-your-nose-in-it approach" that can prolong a case rather than settle it.

"If she isn't satisfied with their rendition of what happened, she'll say something smug, like, 'Oh, it looks like you need a trial,'" he says. "Or she'll refer to the defense, in open court, as 'crazy' for exercising the right to go to trial."

In one case, Handley recalls, he represented a man who'd been charged in a domestic dispute with violating a restraining order and burglarizing his ex-wife's house. Based on the evidence she saw, Hufnagel didn't see the case as complicated, he says, but Handley's client was adamant that he didn't commit the burglary.

"We go to a motions hearing, and the judge was, I thought, extremely rude," Handley says. "She was mocking me and the motions I filed and asking me why I couldn't be more like Bob Ransome or Larry Posner--lawyers she likes. She asks my client if he wants the [plea] offer, and he says he didn't do anything. And she got angry with that. 'Oh. You didn't do anything. Fine.' She was mocking his decision to go to trial."

The case was tried by another judge, who reversed Hufnagel's decision to allow evidence of earlier violent acts by the defendant unrelated to the burglary charge. At trial, Handley's client was able to provide a strong alibi for the time of the burglary. "The jury was out ten minutes before they acquitted him," Handley says. "She had totally prejudged the situation."