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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