In Colorado, former prosecutors outnumber public defenders 2-to-1

There are twice as many former prosecutors serving as district court judges in Colorado as there are former public defenders on the bench, a Denver Post review found.

The state judiciary is skewed toward former prosecutors, raising questions about the overall fairness of the judicial system, the importance of professional diversity among judges and how much judges’ prior work impacts their decision-making on the bench, experts told The Post.

“I think there is a measurable effect to having so many more prosecutors who never represented individual clients and therefore never got so closely exposed to all the root causes of crime that bring individuals into the criminal legal system in the first place,” said Tristan Gorman, policy director for the Colorado Criminal Defense Bar.

But others say judges can’t be broadly categorized by their backgrounds, and that judges’ personalities, demeanors and capabilities matter more than their past jobs.

“In my opinion, having now been a lawyer and judge for 52 years, I don’t see where it makes much difference,” retired senior judge Gary Jackson said. “Whether you are public defender or a former district attorney, it’s the trial experience that becomes most important, it’s your contact with diverse people through the court system that becomes important…your demeanor, your work habits, and your ability to have a fast learning curve.”

Of the state’s 198 sitting district court judges, 83 previously worked as prosecutors — about 42%, and 39 previously worked as public defenders — about 20%, the Post found by reviewing judges’ biographic information as published by the Colorado Judicial Department and the Office of Judicial Performance Evaluation. That breakdown includes four judges who spent time as both public defenders and prosecutors before being appointed to the bench.

Some judicial districts have more former public defenders on the bench than others. In Pueblo County, 75% of sitting district court judges formerly worked as public defenders, while in Mesa County, no sitting judges previously worked as public defenders and 83% formerly worked as prosecutors. In Denver, there’s an even split: eight of the district’s 31 judges previously worked as public defenders and another eight previously worked as prosecutors, the Denver Post found.

Colorado’s dearth of former public defenders on the bench reflects a nationwide trend. Only 7% of sitting federal judges previously worked as public defenders, according to data published by the Federal Judicial Center. But in recent years, there’s been growing recognition that professional diversity on the bench is critical to overall fairness, said Howard Henderson, professor at Texas Southern University.

As much as judges strive to be impartial, their professional experiences can and do impact their rulings, Henderson said. A 2021 study by a professor at Emory University found that federal judges who’d previously worked as prosecutors and judges with corporate backgrounds were less likely to decide employment cases in favor of claimants than judges with other backgrounds.

“I wouldn’t say they can’t filter it out, I think they can,” Henderson said. “But you can never totally get rid of your experiences.”

For 8th Judicial District Chief Judge Susan Blanco, who worked as both a prosecutor and as alternate defense counsel before taking the bench — a job similar to that of a public defender — each experience taught her different lessons, she said. Working as a guardian ad litem in particular opened her eyes to the systemic barriers that some people face as they go through the legal system.

“I didn’t fully understand what that might look like for an individual until I started to have to navigate someone through it,” she said. But, she added, it’s tough to equate a person’s past job with what kind of judge they’ll be.

“What’s most important is that we have conscientious, good people on the bench who are mindful of (their own backgrounds) when they’re making decisions,” she said. “I don’t know that it matters so much the background as it matters the fabric of who the person is.”

Tom Raynes, executive director of the Colorado District Attorneys’ Council, said many judges are aware of their perceived biases and work to counter them.

“The backdoor humor is that public defenders make better judges for prosecutors and prosecutors make better judges for defense attorneys because they’re all so worried about being seen in their prior role,” he said. “They’re hyper-vigilant about not leaning toward one side or the other.”

Colorado District Court judges with backgrounds as public defenders scored no different than those with backgrounds as prosecutors when evaluated by attorneys, according to data published by the Office of Judicial Performance Evaluation. Judges of both backgrounds saw a median attorney performance score of 87%, the Post found. District court judges who’d previously worked as judges on lower-level courts, like municipal or county courts, scored slightly higher, with a median score of 88%.

Fourth Judicial District Judge Frances Johnson, one of the handful of sitting judges who has worked as both a prosecutor and a public defender, said doing both jobs helps her to understand the perspectives of both sides in a court case.

“It’s hard to credibly state that one background is more helpful than another,” she said. “What’s most helpful is for a judicial officer to be as well-rounded as possible.”

But some public defenders say they bring a unique perspective to the bench that is different from the stance of a typical prosecutor, and that perspective strengthens the judiciary as a whole.

“We represented the people, and we have a different relationship to the police and law enforcement, and we have seen the tremendous injustice that can occur on the regular,” said Lynn Noesner, an appellate public defender. “…The more diversity we have in every way increases the legitimacy of our legal system.”

What’s driving the gap

A number of systemic factors likely impact the low count of former public defenders on Colorado’s district court bench, experts told The Post. Political norms, public defenders’ career choices and the different professional resources available to public defenders and prosecutors all likely play a role.

“I would say it’s a little bit of the chicken and the egg conundrum where you have – certainly there has been a history of the group not really being looked at as much – so you have a tendency that there are fewer applications because some of the people don’t think they can get on the bench,” said Stephen Burg, an attorney and member of the 18th Judicial District Nominating Commission.

Nominating commissions in each judicial district across the state vet and interview candidates for judgeships and then send the names of the top candidates to Gov. Jared Polis, who appoints one person from the list to the job. The commissions are made up of both attorney and non-attorney members who serve six-year terms.

Burg said he saw “significantly more” prosecutors applying than public defenders when he first started on the commission in 2019, but that applications from public defenders have been on the rise more recently.

“Professional diversity is very, very, very important,” he said, adding that even the nominating commissions themselves would benefit from additional diversity among members.

Within the criminal defense community, there is a stigma associated with a public defender applying to be a judge, Noesner said.

“There is a little bit of pushback, like, ‘A real public defender would never want to become a judge,’” she said. “Like, ‘Why would you want to put people in cages, why would you want to be more a part of the carceral machine than you already are?’”

Because of that, public defenders may not have the same opportunities to do the professional networking necessary to secure a nominating commission’s endorsement in the way that prosecutors do, said James Hardy, executive board co-chair of the Defenders Union of Colorado, a group representing the state’s public defenders.

“They have a network in place from the time they start at a DA’s office that grooms them to do the application, to know the people you need to know to get the commissioners’ attention,” said Hardy, who applied for a Court of Appeals position in 2018. “It’s one thing to apply, it’s a whole other thing to have a successful application.”

Attorneys who hope to become judges must lobby the nominating commissioners and mount a robust campaign of support, several people told the Post. It’s tough to get the job without a wide network of professional connections centered on the commissioners.

“A common perspective is if you get the interview, they think you are qualified. All your papers are in order, you have the background to do the job,” Hardy said. “The interview is just about whether or not they like you or not. And one way people who have been through the process told me to do that was to get close to them. Know the people they know. Have people they know call them and tell them what a great person you are.”

When Noesner applied to be a Colorado Court of Appeals judge last year, she fielded a number of questions from the nominating committee about her ability to be fair and set aside her bias. She had an answer ready to go, but was surprised to be asked different iterations of that same question several times during the interview.

“I had repeated questions about my bias, and I don’t know that my friends coming from the Department of Law were also asked those questions,” she said. “I think there’s an assumption that we have more bias than a prosecutor.”

Because there are so many former prosecutors on the bench, they’re seen as the norm, she said.

“They’re not perceived as being biased, they’re perceived as the main, the status quo — but defense lawyers have to change their framework,” she said.

For public defenders who do make it through to the list of top candidates, they still have one more hurdle — the governor.

In the past, some governors, like former Gov. Bill Owens, have made a point of choosing former prosecutors as judges. During his seven years in office between 1999 and 2005, Owens appointed 72 district court judges to the bench — which at the time was about half the state’s judges. Nearly 60% of those appointees were former prosecutors.

Among sitting district court judges appointed by Polis since 2019, 22 are former public defenders and 36 are former prosecutors, including two judges who have previously held both roles, the Post found.

“Governor Polis takes his responsibility to appoint judges seriously and is committed to appointing judges with diverse backgrounds. Colorado is best served when the judiciary reflects the community it serves,” said Polis spokesman Conor Cahill.

Nominating commissions are less overtly political than judges who are elected by a general vote, but it’s all but impossible to keep politics completely out of the selection process, Henderson said.

“Removing politics from the judicial system is difficult, and the social and political context plays a huge role, but I think we could begin to take steps in that direction by promoting a culture of fairness, transparency and integrity,” he said. “Is there a better answer? Depends on who you are talking to.”

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