Peters’ defense says Barrett used facts that were never in evidence

By Jen Schumann | Rocky Mountain Voice

The state said Judge Matthew Barrett’s sentencing remarks about Tina Peters were harsh words from the bench, not evidence of bias. Peters’ legal team answered with a different question: how did the judge know she appeared on podcasts? Where did he get the words “snake oil” and “junk”?

The state’s response did not touch that argument. The judge being asked to step aside will decide it.

Three filings hit the Mesa County docket between late Thursday and Friday morning. District Attorney Dan Rubinstein’s office opposed Peters’ motion to disqualify Barrett. Her attorneys replied by introducing a theory the state never touched—that Barrett’s sentencing comments relied on an “extrajudicial source,” meaning information the judge obtained from outside the courtroom record. Under Colorado and federal law, reliance on such information can establish actual prejudice. That is a different legal standard than the one the state answered.

The court must resolve the recusal question before anything else moves forward, including Peters’ renewed motion for bond pending appeal.

What the People argued, and what the defense said they missed

Rubinstein’s office opposed recusal on narrow legal grounds. The state argued that adverse sentencing rulings, even harsh ones, are appealable but not disqualifying.

“Judge Barrett’s rejection of Defendant’s arguments at sentencing and imposition of a sentence are adverse legal rulings, which do not alone establish bias, ‘as they are proper grounds for appeal, not for recusal,'” the response said.

The state also noted Peters never objected at sentencing and raised no bias claim until after she lost.

“Defendant neither objected to Judge Barrett’s statements at sentencing, nor did she raise a claim of bias at any time prior to his adverse ruling at sentencing,” the filing said.

The People’s response, filed Thursday, argues Barrett’s sentencing comments were adverse rulings, not evidence of bias.

That was the state’s position. Hours later, Peters’ attorneys filed their reply.

John Case, who represents Peters, wrote that the state had misstated the legal standard—and skipped past the stronger claim. The bias issue, he argued, is not about what Barrett said. It is about what the judge knew.

“Judge Barrett excluded from evidence in all trial and pretrial proceedings Mrs. Peters’ public criticisms of Colorado’s computer voting systems, and the expert reports that she relied on,” Case wrote. “Since this evidence was not before the court, and no charges were based on it, one can only conclude that when Judge Barrett labeled Mrs. Peters’ public statements as ‘lies, snake oil, and junk,’ and used those findings to justify incarcerating her as a ‘danger to the community,’ he must have received such information from an extrajudicial source.”

Under a 1966 U.S. Supreme Court ruling, a judge must step aside when an opinion on the merits draws from information obtained outside the courtroom record.

Case applied the same test to a second finding.

“The same is true for Judge Barrett’s finding that Mrs. Peters engaged in ‘podcasts,'” the reply said. “There was no evidence in the case that she participated in podcasts, so Judge Barrett must have learned this from the district attorney or some other extrajudicial source.”

Case closed the reply with a point-blank observation.

“The People’s Response does not dispute that Judge Barrett reached opinions on the merits that stemmed from an extrajudicial source,” Case wrote.

Defense reply, filed late Thursday, argues Barrett cited facts never entered into evidence—a standard tied in federal case law to actual prejudice.

The flight-risk argument the state wants to keep separate from speech

On the same day the disqualification filings traded, the state also answered Peters’ renewed motion for bond pending appeal.

Rubinstein’s office argued the bond motion fails at the threshold—before any of the speech issues reach the court.

“This Court must deny Defendant an appeal bond because it is required to do so unless [it] finds that Defendant is ‘unlikely to flee,'” the response said.

Under Colorado law, flight risk is a gate. If the court finds it, the bond analysis stops there—the other factors, including family ties and likelihood of success on appeal, never come into play. The state is arguing that gate remains closed, regardless of what the Court of Appeals said about protected speech earlier this month.

“If anything, Defendant now presents an increased flight risk because the Court of Appeals has affirmed her felony convictions,” the state said.

The state’s position traces back to the original case, when prosecutors noted Peters had violated bond conditions by leaving the state during trial and had access to private planes before her home detention. Those facts, the state argues, still weigh against release.

The response also acknowledged—for the first time on the record—that the earlier bond denial may have touched protected speech. But the state argued the flight-risk finding stands on its own.

“Defendant suggests that because this Court may have relied on statements the Court of Appeals subsequently concluded were protected speech in denying her original request for an appeal bond, it must grant her an appeal bond now,” Rubinstein’s office wrote. “But this Court must deny Defendant’s request under section 16-4-201.5(2)(a) based on her continuing flight risk, a determination that is not based on any of her protected speech.”

The People’s response, filed Thursday, cites flight risk as an independent basis for denying bond.

The state also pointed to a line in Peters’ renewed motion where, the response said, she stopped short of full acknowledgment.

“In Defendant’s declaration attached to her motion she now acknowledges, for the first time in the many years this case has been pending, that she ‘made mistakes’ and was ‘wrong’ to mislead the Secretary of State,” the filing said. “However, later in that same declaration, she remarks ‘that my actions were perceived by others as illegal.'”

Peters has been in custody 569 days. The First Amendment question at the center of her bond fight has never been fully resolved in any court. The state’s argument this week is that it does not need to be.

A midpoint that isn’t, and a sentence that stacks

Barrett’s January letter to Gov. Jared Polis, which the judge placed into the public case file hours after Peters filed her disqualification motion, contained one line the defense says is not true.

“I chose a sentence in roughly the midpoint of the presumptive ranges that this state’s General Assembly has set,” Barrett wrote to the governor on Jan. 13.

Peters’ attorneys say the math tells a different story.

“Judge Barrett’s assertion that he ‘chose a sentence in roughly the midpoint of the presumptive ranges’ is not true,” the defense response said. “Judge Barrett made the sentences consecutive instead of concurrent, which is almost unheard of when multiple counts arise out of a single criminal episode. Judge Barrett imposed a sentence totaling eight years and [nine] months, instead of 3.5 years if the sentences ran concurrently, as most judges do.”

Consecutive sentences stack end to end. Concurrent sentences run at the same time. On multi-count convictions arising from a single criminal episode, concurrent is the norm. The consecutive structure, applied to a nonviolent first-time offender, produced the nearly nine-year total.

The sentence structure first drew public scrutiny in March, when Polis compared Peters’ case to former state Sen. Sonya Jaquez Lewis. A Denver jury convicted Lewis of three forgery counts and one count of attempting to influence a public servant—the same statute underlying three of Peters’ four felony convictions. Lewis received probation and 150 hours of community service. Peters’ attorneys have pointed to the Lewis case as the clearest example of what they call a sentencing disparity.

The disparity argument is not new to the record. Yesterday’s coverage included sworn affidavits from Peters’ trial attorney Michael Edminister and longtime Mesa County pastor Robert Babcox, both of whom said the sentence stood out against others they had observed in Mesa County courts—including for violent crimes. What is new is the framing. In the April 23 filing, Peters’ attorneys argue the sentencing disparity is not about tone or policy. It is a factual dispute—a judge defending a sentence to the governor with a characterization they say is mathematically incorrect.

What Barrett acknowledged, and what he won’t address

Peters was 69 and had no prior criminal record of significance when she was sentenced. Pastor Babcox, whose affidavit accompanied the disqualification motion, noted that Barrett himself acknowledged from the bench that Peters “had no significant prior criminal record and stated she was unlikely to commit further crimes.”

That acknowledgment, paired with the consecutive sentencing structure, sits at the center of what the defense now argues is a contradiction—between what Barrett said the sentence accounted for, and what the sentence actually imposed.

On Friday morning, Barrett issued his third docket order in three days.

At 8:06 a.m., the judge marked the defense response to his upload order “NO ACTION TAKEN.” He did not rule on the factual challenge to his midpoint characterization. He did not strike it. He docketed it and left it there.

It was the third order since Wednesday. Barrett had acted on the motion to disqualify, ordering the state to respond. He had declined to act on the renewed bond motion. On Friday, he declined to act on the defense’s upload response. Together, the three orders kept the procedural path narrow: recusal first, everything else behind it.

“I cannot rule on this motion until Defendant’s motion for my recusal is resolved,” Barrett wrote in his April 22 order.

The state filed its response to the recusal motion Thursday, four days ahead of Barrett’s April 27 deadline. Once the recusal question is answered, the bond motion returns. Both decisions rest, for now, with the same judge the defense says should not be making them.