A man convicted of bank robbery is claiming an Adams County judge pressured the prosecutor to change his position on a key piece of evidence before finding the defendant guilty, a claim the state's Supreme Court justices evaluated Tuesday during oral arguments.
Agreeing with Levi Derek Hall was the Colorado Court of Appeals, which decided by 2-1 last year that District Court Judge Robert W. Kiesnowski Jr. acted improperly when he elicited a statement from the prosecutor at the end of trial that was at odds with the prosecutor’s prior position.
But multiple members of the Colorado Supreme Court were skeptical that Kiesnowski had done anything wrong.
“How do we know?” asked Justice Richard L. Gabriel. "When does a judge cross the line into pressuring behavior?"
Hall stood trial in 2017 for a series of bank robberies in which the perpetrator wore a hat or hooded sweatshirt covering his ears and large sunglasses. He earned the nickname the “Good Grammar Bandit” for his use of notes demanding money. Each time he fled on foot and did not leave fingerprints or DNA.
Hall’s ex-boyfriend called police to identify Hall as the robber, and three out of 10 bank employees identified him in a photo lineup. There was other circumstantial evidence to suggest Hall was responsible, including his proximity to each of the banks and the lack of any further robberies after his arrest.
He opted for a bench trial, as opposed to a jury trial, with Kiesnowski responsible for determining Hall’s guilt. A key factor during the trial was the earring Hall was wearing when law enforcement first contacted him. In response to a question from Kiesnowski, the prosecutor said there were no surveillance videos of the robber that showed an earring.
“We don’t see earrings during the robbery,” the prosecutor said. “Whether he’s wearing an earring that day or not, we don’t know, but you cover up as much as you can. You never see his ears. So the earring, I just don’t believe [has] any relevance because you can’t see it in the robbery.”
However, after closing arguments, Kiesnowski told the parties: “We are not done, folks.”
The judge conducted a frame-by-frame replay of one surveillance video, and concluded there were two frames where he saw a flash around the robber’s ear.
“What do you think they are?” Kiesnowski asked the prosecutor over the objection of Hall’s attorney.
“I would argue that they are an earring,” the prosecutor responded. The judge invited the defense to respond, but Hall’s lawyer expressed a discomfort with answering. Kiesnowski immediately found Hall guilty — due in part, the defense claimed, to the prosecutor's change of mind.
Stanley L. Garnett, the former district attorney for Boulder County, said he had never encountered this type of scenario in the courtroom. In a bench trial, he explained, the judge has to both determine the facts, which is typically a jury function, as well as apply the law.
“In this case, the judge mixed the roles and let himself become a participant in the process and enticed the prosecutor into being a witness,” Garnett said. “It is wrong for the judge to act this way and also wrong for the prosecutor to, essentially, become a witness, as happened here.”
Criminal defense attorney Ann Roan agreed with that analysis, adding, “I’m not being hyperbolic when I say that this kind of conduct is a real threat to our democracy.” She said the prosecutor should have declined to answer the judge’s question.
A three-member Court of Appeals panel agreed Kiesnowski acted improperly, and reversed Hall’s convictions in January 2020. The panel’s majority determined the judge did not ask his question at the appropriate time and injected an issue — the presence of an earring — that the prosecution had declined to raise.
During oral arguments before the Supreme Court, public defender Chelsea E. Mowrer told the justices she had no problem with judges wanting to clarify the evidence or the arguments at hand. What was problematic, in her opinion, was how Kiesnowski seemed to be weighing in on behalf of the prosecution.
“Even if the prosecutor had stood his ground and said, ’I don’t see earrings,’ I still think it’s problematic because it does look like the court is saying, ‘You need to be making this argument about earrings and you’re not. This is how you try a case.’”
“It would be one set of facts here if the trial judge said, ‘Prosecutor, are you serious? Are you blind? Don’t you see an earring there?’” Gabriel countered, indicating Kiesnowski had not applied that same kind of pressure in Hall’s case.
Some of the strongest pushback to Hall's claims came from Justices Carlos A. Samour, Jr. and Maria E. Berkenkotter, both of whom were trial court judges prior to their appointment to the Court.
The judge during a bench trial is "looking at the evidence that has been admitted and he’s looking at the evidence that has been commented on by both counsel and, in attempting to find out what the facts are, he’s got a conflict here between what he seems to see in the evidence versus perhaps what some of the arguments are. So he’s asking the counsel to address that,” Samour said. “Why is that wrong?”
Berkenkotter also pressed the defense to explain what a judge is supposed to do when they see things that the parties to a case do not. Mower replied that the judge should ask a witness, not one of the lawyers.
Both parties agreed Kiesnowski was within his right to reach a verdict based on the evidence he saw, including the surveillance video. The government's position was straightforward: if the judge was not raising new evidence or excluding one party from responding to the question, the conduct was fair.
With a bench trial, in contrast to a jury trial, "we can trust the trial court to know the law and we can trust it to apply it accordingly," argued Assistant Attorney General Frank R. Lawson. If the judge had accepted the prosecution's initial answer about the earring, despite what he believed he saw, that would amount to an abandonment of his truth-seeking role.
"Doesn’t it put defense counsel in a really tough spot if the court says, 'Isn’t that an earring?' And the lawyer for the defendant thinks in his mind, 'Yeah, that is an earring," asked Chief Justice Brian D. Boatright. "How does the defense counsel answer that?"
"I agree that is a tough spot," Lawson responded. "The problem is that’s what the evidence showed."
The case is People v. Hall.
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