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Colorado’s High Court Reverses Convictions Over Adams County Judge’s Behavior Toward Defense Counsel

Taylor Johnston

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The Colorado Supreme Court reversed a man’s convictions because an Adams County judge violated his Sixth Amendment right to hire a different defense lawyer.

The actions of District Court Judge Thomas R. Ensor, who had accused Palmer Gilbert of trying to delay his criminal proceedings, will now result in Gilbert receiving a new trial more than four years after he initially faced a jury.

Although the Supreme Court did not address the degree of displeasure that Ensor showed toward Gilbert’s defense lawyer, Gary D. Fielder, the justices heard during oral arguments last year about Ensor’s disparaging comments toward Fielder in the courtroom.

“I think that Judge Ensor was fairly abusive,” said Harvey A. Steinberg, Gilbert’s lawyer on appeal. “This is the first time I’ve ever seen a lawyer come before a judge and say, ‘As a result of our hearing I went into therapy.’ That’s a pretty unique circumstance.”

By reversing Gilbert’s convictions based on his right to counsel, the Supreme Court avoided ruling on the second question in Gilbert’s appeal involving the admission of evidence about his mental health. Both the prosecution and the defense said on appeal that Ensor ruled incorrectly, at least in part, on that issue.

A Best Buy employee in Northglenn had found Gilbert sitting in another employee’s car in September 2016 in the store’s parking lot. Gilbert at first maintained the car was his, then brandished a knife before running away. He attempted to carjack three motorists at knifepoint, caused a vehicle crash, and ultimately fled in a stolen truck to Wyoming.

After a court released Gilbert on bond in December 2016, he immediately fled. Authorities apprehended him nearly a year later and he appeared for his arraignment in December 2017, where he pleaded not guilty. A trial was set to begin on April 2, 2018.

The day before a hearing on Feb. 9, 2018, Fielder indicated his desire to introduce evidence of Gilbert’s mental health, which would require a court-ordered examination. Fielder indicated Gilbert was not changing his plea to not guilty by reason of insanity, but rather the mental health evidence might show that Gilbert did not act with the intent to commit the alleged crimes.

“I believe that there might be an underlying mental illness that Mr. Gilbert is suffering from,” Fielder told Ensor at the Feb. 9 hearing. “As soon as that hit my brain, I thought I have got to immediately notify the district attorney and the Court. … I, in good faith, believe there’s some underlying post-traumatic stress disorder and bi-polar disorder.”

Ensor denied the request for a mental health examination and postponement of the trial. He said, erroneously, that none of the crimes required proof of specific intent, when in fact Gilbert’s assault charge did. Moreover, the judge said, Fielder had not shown good cause for making such a request, which normally comes at the time of arraignment.

“You know, frankly, Mr. Fielder,” Ensor added, “I’m getting tired of the surprises that come in here when you’re involved in cases. It’s concerning to this Court as to whether or not you’re really prepared for cases.”

Five days before trial was set to begin, Fielder notified the judge that Gilbert’s family was hiring new lawyers. The substitute law firm filed a motion describing irreconcilable differences between Gilbert and Fielder. Ensor’s comments during the Feb. 9 hearing, they claimed, caused Gilbert to believe that Fielder was unprepared. Fielder also admitted that the hearing caused him “mental distress” and that he sought professional counseling.

The prosecution opposed the request to change lawyers, noting the case had already been pending for a year and a half, that victims had reportedly voiced frustration about the delay, and that one of the key witnesses was undergoing cancer treatment and may not survive to testify at a future trial date.

Ensor agreed with the prosecution, finding that “this 11th hour attempt … to change attorneys is just one more attempt by Mr. Gilbert to delay this case.”

The trial proceeded and a jury found Gilbert guilty of aggravated robbery, assault, motor vehicle theft, leaving the scene of an accident and other offenses. He received a sentence of 29 years in prison.

In September 2020, a three-judge panel for the state’s Court of Appeals reversed Gilbert’s convictions and ordered a mental health examination for Gilbert. If a trial court judge determined afterward that there was evidence Gilbert’s mental condition could have supported his defense, a new trial was warranted, the appellate court said. Similarly, the panel directed a trial court review of whether Gilbert deserved to substitute his attorney, which would result in a new trial if the answer was yes.

The government appealed to the Supreme Court, largely focusing on the mental health evidence. Assistant Attorney General Brian M. Lanni told the justices that Fielder had not shown good cause for seeking a mental health examination after the arraignment, beyond saying that Gilbert’s possible afflictions “hit my brain.”

“This judge was frustrated and he was exasperated. He said things that I think certainly would have been better if he hadn’t said them,” Lanni admitted. But “the Court of Appeals correctly found that there’s no indication this judge’s frustration or exasperation was affecting his decisions.”

“Isn’t part of the problem that the trial judge just shut him down so fast?” asked Justice William W. Hood III. “The trial judge just didn’t like this defense lawyer. We don’t know about the history but it seemed like he gave him a short audience because of that history.”

Steinberg, arguing on behalf of Gilbert, said that his client’s abscondence on bond meant that Fielder only had a brief time to interact with Gilbert before trial, which contributed to the delay in realizing there may be mental health issues at play. He agreed with Hood that Ensor appeared determined to shut Fielder down.

“You were not gonna get a fair hearing in front of Judge Ensor on this case with this attorney,” Steinberg said.

The Supreme Court decided the appeal solely on the question of Gilbert’s right to be represented by his counsel of choice. Justice Monica M. M?rquez, in the court’s May 31 opinion, relied on the 2014 decision of People v. Brown, which laid out a series of factors for judges to consider when deciding whether to postpone a trial to allow for a substitution of attorneys.

Several of the Brown factors, she wrote, weighed in favor of Gilbert’s request, including his motive for substitution, the availability of the new lawyers, and the number of continuances already granted in the case — which was zero.

Ensor, “clearly influenced by Gilbert’s past actions, including his year-long abscondence, believed that Gilbert’s purpose in seeking a continuance was to further delay the proceedings. But the record belies any dilatory motive,” M?rquez wrote.

In reversing Gilbert’s convictions, the Supreme Court noted that a new judge would have the opportunity to evaluate afresh any request to introduce mental health evidence.

Gilbert’s appeal is not the first time appellate judges have disapproved of Ensor’s handling of cases. The Court of Appeals ordered a new trial in August 2020 after Ensor, now retired, left out a “significant and material portion” of the law from a jury instruction. That same year, the Supreme Court found Ensor “could have handled this unusual situation in a more restrained manner” after he allowed his wife to serve as a juror in a criminal case he presided over.

Last year, the Court of Appeals reversed a defendant’s conviction after Ensor accused his attorney of “the most pathetic defense that I have ever seen” and threatened to have him disbarred.

“It was real demeaning to me. I’m still angry and hurt by it,” Fredrick M. Callaway, the attorney involved, told Colorado Politics.

The case is People v. Gilbert.


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Coroner Spotlights Domestic Violence, Homelessness, Fentanyl Crises in Annual Report

Taylor Johnston

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More than a third of the 61 people murdered in El Paso County last year were killed during a domestic or family violence situation.

Seven homeless people froze to death on the streets of Colorado Springs last year, and another five died from exposure to the elements from Jan. 1 through May 31 of this year.

And while youth suicides declined dramatically last year, more adolescents as well as adults are unintentionally dying from fentanyl, according to the 2021 El Paso County Coroner’s annual investigative-deaths report, released Tuesday.

“As our population grows, we’d expect to see all categories increase incrementally, but there are areas where we’ve left that trajectory,” said Dr. Leon Kelly, El Paso County coroner and chief medical examiner.

Fentanyl, a prescription pain drug, constitutes a “gross deviation” from predicted increases, Kelly said, largely because the synthetic opioid has wormed its way into many illicit street pills and often is ingested unknowingly.

That’s evidenced by the number of fentanyl-related deaths doubling for each of the past five years, he said.

Last year’s five accidental fentanyl-related deaths among children younger than age 18 surpassed the number of teen suicides last year, which fell from a record-tying high of 15 deaths in 2020 to only four deaths in 2021, statistics show.

“The big tipping point came when fentanyl went from an illegally trafficked drug to being stamped and masked as other medications,” Kelly said. “It’s easily carried, sold to kids in pills, and the cost has gone down because of the massive supply, so the barrier has been broken.”

Across the board, accidental drug-related deaths increased by 22% last year, with 107 methamphetamine deaths and 99 fentanyl deaths. Fentanyl also was found in a quarter of the meth overdoses.

Other trends that emerged from 2021 autopsied deaths:

o El Paso County saw a large increase in total firearms-related fatalities, jumping from 133 in 2020 to 167 last year.

o Homicides increased from 55 in 2020 to 61 in 2021, six of which occurred in a single mass-shooting event at a family gathering on Mother’s Day last year.

o The average age of the 78 people who died while homeless was 49 years old. Deaths of homeless during the first five months of this year are outpacing last year, with 48 deaths through through May 31.

o At least one military veteran or active-duty service member died by suicide every week in El Paso County last year.

o 58 people died in motor vehicle accidents, a decrease from 78 in 2020.

o However, 20 pedestrians and five bicyclists were killed in 2021, compared with 13 pedestrians and seven bicyclists in 2020.

o There were an additional 96 accidental deaths due to falls predominantly among the elderly, with an average age of 78.6 years, which were investigated without autopsy.

o 398 people died of natural causes, with cardiovascular disease as the top reason, causing 170 deaths, and chronic alcoholism attributed to 64 deaths.

The same type of prevention work that El Paso County has poured into reducing teen suicides needs to be deployed to counter the use of fentanyl, Kelly said.

Efforts are underway, he said, with the 4th Judicial District Attorney’s Office convening community leaders and experts to study lessons learned from youth suicide prevention that can be applied in attacking the newest threat to children’s lives.

Success in lessening youth suicides came because representatives from all sectors became part of a concerted push, Kelly said, after El Paso County ranked highest in the state and near the top in the nation for self-inflicted fatalities.

“Every conceivable youth-facing organization, from faith-based, to Inside Out (a lesbian, gay, bisexual and transgender organization that serves youth), to schools, to parents to law enforcement to mental health professionals identifying what was going on and what they could bring to the table,” Kelly said.

Face It Together, a nonprofit that provides peer coaching for adults with addictions and support for families, has seen “a great need” and an increase in people seeking help with opioid addiction such as fentanyl, said CEO Wendy White.

The organization opened its first Colorado office last April in Colorado Springs and also offers remote services nationwide.

“The power of using peers helps remove the shame and stigma, and breaks down barriers, allowing people to share their situation and add more tools to their toolbox,” White said.

She said she’d like to see a “harm-reduction” approach with test strips provided for drug users to determine the toxicity level of pills they might ingest.

The public now can buy Narcan, an antidote for people overdosing on opioids, at pharmacies without a prescription, said Dr. Eric Stein Bronsky, an emergency medicine physician with Penrose-St. Francis Health Services in Colorado Springs. Emergency medical technicians and police also carry doses, which is easily administered in a nasal spray, he said.

Also, hospitals dispense Narcan when discharging patients who are on pain medication, Bronsky said.

“Not all opiate doses are illegal; a tremendous amount of overdoses come from prescribed medication, and Grandma or Mom or Dad stacking pain medicine, or their body having a harsher response that can send them into respiratory decline,” he said.

Because fentanyl is hidden in pain pills that look like OxyContin or Percocet, for example, and is more potent than other drugs, opiate abuse won’t abate, Bronsky believes, until it’s seen as a health care crisis and not a legal problem.

“They can arrest more dealers, put more people in jail, but until we’re willing to concentrate on what it is — a health care crisis — people won’t be willing to solve it,” he said. “People are willing to solve a health care crisis.”


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Defense Contractor With 200-person Office in Colorado Springs Approves Company Merger

Taylor Johnston

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Vectrus shareholders approved a merger with The Vertex Co. to create the new military powerhouse, V2X, a $3.4 billion revenue company to be based out of northern Virginia, Vectrus announced in a news release Wednesday.

The transaction will give Vertex shareholders nearly two-thirds ownership of the company and Vectrus shareholders one third, creating one of the nation’s 20 largest defense contractors with 14,000 employees in 300 locations worldwide.

“Today’s (Wednesday’s) overwhelming approval marks a significant step toward completing our merger with Vertex, and creating one of the leading providers of critical mission solutions and support to defense clients globally,” Chief Executive Officer of Vectrus Chuck Prow said in the release. “Vectrus and Vertex — together as V2X — will be better positioned to meet the mission-essential needs of our clients while delivering cost efficiencies, increased security and resiliency, with more strategic use of resources.”

The melding of the two companies is likely save about $20 million a year by eliminating duplicated information technology, computer networks along with “some consolidation of people,” as V2X tries to tackles a contract backlog of more than $11 billion reaching into 2027.

Vectrus’ Colorado Springs office of 200 employees that focuses on sales, finance and human resources will stay in place, Vectrus Vice President Michael Smith confirmed.

Vertex also operates an office near the Colorado Springs Airport that supports a contract the company manages at a radar station in Alaska that feeds data to the North American Aerospace Defense Command (NORAD).

Summer jobs help area youths earn cash, develop skills

Prow will become CEO, Vectrus Chief Financial Officer Susan Lynch will hold the same post in the combined company and Vectrus board members will hold six of the 11 seats on the combined board, including the chairman’s post. Vertex CEO Ed Boyington will serve on the board and remain with the combined company until retiring after an unspecified transition period.

Vectrus, which specializes in logistics, information technology maintenance and operating military bases, is slightly larger than Vertex.

Vectrus generates about $190 million more in revenue and employs 2,400 more people, mostly at military bases around the world. Vertex specializes in aircraft maintenance, systems engineering and training.

“We thank all of our stakeholders for their continued support and look forward to completing the pending combination so we can begin unlocking the incredible potential of our combined platform,” Prow said.


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Wildlife Officials Warn of Possible Increase in Bear Encounters This Year

Taylor Johnston

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Colorado Parks and Wildlife is warning the public of the possibility of increased bear encounters this summer and fall because of late season storms that struck Colorado in May.

Bears’ diets depend on what kinds of foods are seasonally available such as grasses, berries, fruits, nuts and plants. These food sources can be disrupted in years that are abnormally dry or when there is a late frost like this year, wildlife officials said.

“We certainly see a correlation between annual failures of natural bear food sources and years with higher human-bear conflict rates,” said Mark Vieira, the state’s carnivore and furbearer program manger. “When natural food sources are scarce, as the smart flexible eaters that bears are, they tend to spend more time near humans.”

Bear encounters last year were down 28% compared to the previous two years. But encounters are expected to rise because of concerns about the late freeze that could limit food sources.

Wildlife officials said a late freeze occurred in May 2017 and led to a high conflict year where 109 bruins were relocated and 190 others were euthanized.

Mountainous and foothill areas from western Douglas County to Larimer County have already reported areas with frost damage to crops, while other forages continue to recover from wildfires, such as the Cameron Peak fire in 2020 — the largest in the state’s history.

“We have such a large fire footprint that the damage is already done as far as worrying about the soft mass production,” Wildlife Officer Shane Craig said. “I’m sure there were pockets of natural forage that survived, but we have already skated on our luck to get us past 2021.”

Wildlife officers are concerned about the number of gamble oak crops that died during the late season freeze. The crop produces acorns that become a vital source of food for bears as they prepare for winter and are in hyperphagia where they consume 20,000 calories a day.

Wildlife officials said nearly all emerging gamble oak crops above 6,800 feet in western Douglas County died in the late season freeze, but chokecherries and plums survived.

“We’ll be okay for the short (term), but in the 7-8 years I’ve been in my district I’ve never seen an oak dieoff like this,” Wildlife Officer Melanie Kaknes said in a news release. “The bears will have to figure out something because they have to put on weight for the winter. This dieoff (is) going to be pushing bears down in elevation and likely into towns.”

In western Jefferson County and eastern Park County, officials are concerned about the status of higher elevation crops.

“It is too early for me to know how things will pan out for the higher elevation stuff,” Wildlife Officer Dawson Swanson said in a news release. “On the good side we are getting some moisture that we desperately need, let’s just hope things did not freeze up high.”

Most adult bears survive year-to-year even if there is poor food availability.

Wildlife officials reminded residents and visitors to be aware of their surroundings and follow proper guidelines on living appropriately with bears.

These guidelines include:

Keep garbage in a well-secured enclosure.Only put out garbage on the morning of pickup; bring empty cans inside before dark.Use a bear-resistant trash can or dumpster. These are available online or from your trash hauler.Clean all garbage cans regularly to keep them odor free. The scent of ammonia can also deter bears.Take down all bird feeders. Bird feeders are a major contributor to bear/human conflicts and resulted in 1,073 conflicts between 2019 and 2021. Don’t leave pet food or stock feed outside.Install and test electric fencing to protect chicken coops, bee hives and livestock enclosuresKeep garage doors and windows closed and locked

For additional information about bears and guidance, click here.


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