By John Colson
Sopris Sun Staff Writer
What we have here, it seems, is a failure to adjudicate (paraphrasing, without apology, a line from the classic film, “Cool Hand Luke”).
Local observers recently have been treated to a kind of legalistic circus involving five-term incumbent Republican Garfield County Commissioner John Martin fighting to hold onto his job in the Nov. 8 election; Democratic challenger John Acha trying to unseat Martin by, in part, accusing him of mishandling county funds; and Ninth Judicial District Attorney Sherry Caloia caught in the middle when Acha approached her office to investigate embezzlement allegations against Martin.
The Democrats — specifically Acha and attorneys on his campaign team — believe Martin is guilty of what is known as “double dipping” into his expense accounts for trips around the U.S. while on the taxpayers’ dime.
And they have documentation to back up their beliefs, after deluging the county government with Colorado Open Records Act (CORA) requests for various kinds of records and data.
Caloia, nervous about investigating an elected official who exerts partial control over her annual budget for the judicial district (Garfield County is one of three counties that make up the Ninth District), declared that she has an inherent conflict of interest. So she filed a request with Chief Judge James Boyd, also of the Ninth District, asking that Boyd appoint Fifth Judicial District Attorney Bruce Brown as a special prosecutor to handle the probe into Martin’s expense accounts.
But Judge Boyd, in a move that has perplexed some in the local legal community, instead of simply moving to appoint Brown, instead has filed what is know as a “scheduling order” for a hearing on the matter.
That move gives Martin 21 days from Oct. 26 — the day Boyd filed his scheduling order — to respond to the request for a special prosecutor or request a hearing before the judge. The same scheduling order gives Caloia another seven days to respond to Martin’s response.
In most investigations of elected officials accused of wrongdoing, at least in this writer’s experience, the suspected wrongdoer does not know he or she is under scrutiny.
But Acha and his team have gone public with their allegations, so that is not an issue here. Martin clearly knows he is under the spotlight and has denied doing anything illegal or wrong.
In another unexplained move, Judge Boyd has sealed the file that contains Caloia’s written request for a special prosecutor, as well as Boyd’s scheduling order, and perhaps other documents pertaining into what is rapidly becoming quite a muddled affair.
It is fair, it seems, to ask why would the judge seal a case file such as this, wherein the particulars already are well known to the public, the legal community and the investigative subject himself? Caloia apparently did not request that the matter be kept sealed and away from public scrutiny, so why bother?
Why would the judge give Martin 21 days to respond to Caloia’s request, since her request was made without Martin’s involvement, and since, given his public protestations of innocence, his likely response is going to be, “I didn’t do anything wrong! Why investigate me?”
And Caloia, predictably, is going to respond to Martin’s response by declaring, “I cannot be the investigating official in this matter, I have a conflict!”
Again it seems fair to ask, why this set of delays in what could, ultimately, turn out to be a significant matter of deep public interest?
Is it that the judge feels affronted by the whole thing, and feels the courts are being improperly used in a game of political badminton?
If so, so what? It’s arguably not his job to decide the merits of the Democrats’ allegations, at least not at this point. It is, however, arguably his job to explain why he is declining to name a special prosecutor in a case brought before him in a formal, legal manner.
Is it because the judge and Martin are friends?
Again, so what? If that is true, then he should recuse himself (as Caloia essentially has done) and pass the request along so that a special prosecutor can be named and the case put before another, less conflicted judge.
At this point, the only point of clarity in all this is that no one is willing to talk to the press about it. At least that has been the position of Ninth District Court Clerk Jim Bradford, whose reply to a query by a reporter was, “I can’t tell you anything,” after citing Boyd’s sealing of the case file.
Lurking in the corner of the room, of course, is the minor matter of an electoral battle between Martin and Acha that concludes on Nov. 8, but which at this point seems guaranteed to not be influenced by any possible outcome of this case.
Published in The Sopris Sun on November 3, 2016.