Ninety-six minutes later—Barrett denies Tina Peters’ renewed motion to disqualify him

By Jen Schumann | Rocky Mountain Voice

Defense attorney John Case filed the motion at 3:17 p.m. Monday. Judge Matthew Barrett denied it at 4:53 p.m.

Ninety-six minutes later, Tina Peters’ latest effort to remove the judge overseeing her case was over.

The motion cited three major court decisions and included a new sworn affidavit from Rev. Robert Babcox, chief chaplain for the Colorado State Patrol in Grand Junction. Barrett’s denial spanned four paragraphs.

The filing argued Barrett was not free to dismiss or reframe sworn affidavits supporting disqualification if Colorado law required the court to presume those statements were true.

Judge Matthew Barrett’s denial, issued 96 minutes after the motion was filed. The four-paragraph order does not name Smith v. District Court or United States v. Grinnell Corp.

What the motion asked

Motions for reconsideration face a steep standard in Colorado courts. Case argued Barrett’s April 27 order contained manifest errors of fact and law—the specific standard reconsideration motions must meet under Colorado Rule of Civil Procedure §121.1-15(11).

Two centered on Colorado and federal case law. The third focused on a single phrase inside Barrett’s earlier order.

That order had described Babcox, one of two people who submitted sworn affidavits supporting the original disqualification motion, as “a community support for Defendant.”

Case’s filing argued there were only two explanations for Barrett’s description of Babcox as a Peters supporter. Either the court relied on information outside the record, or it made a finding the defense says the record could not support.

The more serious accusation came in paragraph 14.

“If the court invented its finding that Rev. Babcox is ‘a community support for Defendant,’ that intentional misstatement of fact is affirmative evidence of the Court’s bias against Mrs. Peters.”

The motion also cited the 1966 U.S. Supreme Court decision in United States v. Grinnell Corp., arguing that prejudice stemming from information learned outside the case record can require judicial disqualification.

The chaplain who isn’t a supporter

Case’s motion presented Babcox as someone familiar with Mesa County courtrooms long before Tina Peters’ sentencing—a retired Navy veteran, former pastor and current State Patrol chaplain who says he has observed sentencing hearings for years, including violent felony cases.

Babcox said he does not recall ever meeting Barrett.

He had already submitted one affidavit with the original motion to disqualify Barrett. In a second affidavit filed Monday, he directly challenged the judge’s characterization of him as “a community support for Defendant.”

“I have not been a Tina Peters supporter since shortly after her election in 2018. I did not attend the trial. Based on what I have read and heard, I believe now and I believed before her trial that she is guilty of the crimes for which she was convicted.”

Babcox also described why he attended Peters’ sentencing hearing in October 2024.

“I attended the sentencing hearing because our community was divided over Tina Peters’ case. I wanted to see her receive a just sentence from the Court.”

Babcox said he sat on the prosecution side of the courtroom during sentencing, across the aisle from Peters supporters gathered behind the defense table.

The Motion for Reconsideration and Exhibit A. Babcox’s Second Affidavit starts on page 9.

The defense argues those sworn statements trigger a Colorado Supreme Court standard governing judicial disqualification motions.

In Smith v. District Court, the Colorado Supreme Court held in 1981 that factual allegations contained in affidavits supporting a motion to disqualify a judge are presumed true and are not subject to independent factual inquiry by the trial court.

The motion built much of its argument around that rule.

The arguments the denial doesn’t directly address

The motion’s first challenge centered on a contradiction inside Barrett’s April 27 order. He accepted the affidavits as truthful, the filing said, while at the same time dismissing the conclusions drawn from them.

The motion quoted Barrett’s earlier statement that the affidavits did not establish “that my impartiality might reasonably be questioned.”

That approach, the filing said, runs into Smith. The Colorado Supreme Court’s rule is that affidavits supporting disqualification are presumed true. Weighing them against the court’s own conclusions, the motion argued, is exactly what the rule forbids.

The reconsideration motion also pushed back on Barrett’s dismissal of Babcox’s concerns as “subjective opinions.”

In the earlier order, Barrett wrote that Babcox’s belief his impartiality “might reasonably be questioned” did not support disqualification because the statements reflected subjective views, not objective proof of bias.

The filing countered that Babcox was not describing only his own reaction to the sentencing hearing. His affidavit stated that “many members” of the Grand Junction community questioned Barrett’s impartiality after watching the proceedings.

To reinforce the point, the motion cited a 1977 Colorado Supreme Court ruling stating that “the first ideal in the administration of justice is that the judge must be free from bias and partiality.”

The defense maintained Barrett treated sworn factual assertions as opinions instead of applying the Colorado rule requiring disqualification affidavits to be presumed true.

The Grinnell challenge took a different angle.

Case argued the record gave Barrett no basis to call Babcox a Peters supporter. Babcox had sworn he believed Peters was guilty before trial, sat on the prosecution side during sentencing and had never met the judge. Those facts were laid out in Babcox’s second affidavit.

If the characterization came from somewhere outside the case file—anything Barrett heard or read beyond what was filed in court—that triggered one set of legal concerns under Grinnell. If the description was simply inferred without factual support in the record, the defense said, that raised another.

Both paths, the motion argued, end in mandatory recusal.

Barrett’s denial responded by reframing what he meant by the phrase.

“My reference to ‘community support’ meant nothing more than a member of the community providing a pleading in support of Defendant’s request. Defendant is free to make inferences and assumptions about my reference to ‘community support,’ inaccurate and unsupported as they may be.”

The defense argued Barrett’s explanation still did not answer the underlying question of how the court concluded Babcox supported Peters.

On the broader issue of whether community members questioning a judge’s impartiality can support disqualification, Barrett rejected the defense’s argument.

“A number of subjective opinions does not become an objective opinion or a statement of fact regarding bias/impartiality. If that is the legal standard, then every judge would likely be subject to a founded claim of bias.”

Smith is not named in the denial. Neither is Grinnell. Neither is the rule the motion built its argument around—that affidavits supporting disqualification are presumed true.

A question of deference

Earlier this year, Barrett urged Gov. Jared Polis to give “fair deference” to the judiciary when considering clemency for Peters. Monday’s motion asked Barrett to apply what the defense described as a similarly deferential standard toward sworn affidavits questioning judicial impartiality.

The Colorado Court of Appeals denied Peters’ request for rehearing on April 23. Tina Peters has now been in custody for 587 days. No resentencing date has been set.

For now, the path Peters’ attorneys identified for seeking a different judge has twice ended in Barrett’s courtroom.