“You don’t get to ride both horses”: Appeals court presses both sides in Tina Peters case

By Jen Schumann | Rocky Mountain Voice

“Reset the clock.”

Defense attorney John Case used a football analogy as the Colorado Court of Appeals sorted out timing for oral arguments in Tina Peters’ appeal. It had nothing to do with the case itself—just how much time each side would have. But the aside drew a brief laugh before judges turned to a record years in the making.

Defense attorney Peter Ticktin, who represents Peters and spoke with RMV after the hearing, said the depth of the judges’ questions tracked the briefs closely.

“This is a big file,” Ticktin said. “This isn’t something you can read in an afternoon. They clearly did the work. They were chasing down each avenue and each argument that we had in our briefs.”

Watch the full oral arguments below (live-streamed by RMV with court approval).

The forensic copy and the limits of federal duty

Judges first focused on a central factual issue: a forensic copy of Mesa County election records was created two days before the state’s “Trusted Build” process began. Peters was not charged for making or retaining that copy.

Judge Craig Welling returned to the point repeatedly, questioning whether that copy alone satisfied any federal obligation to preserve election records.

“Why didn’t that fully discharge her federal duty to the extent that it was to preserve election records?” Welling asked. He also clarified that a forensic copy is “an unalterable exact copy of what was on the system.”

Defense attorney John Case put the focus on what Peters knew—and didn’t know—at the moment the trusted build began.

“She didn’t know what the Secretary of State was going to do to the county computers during this so-called Trusted Build,” Case said.

Ticktin echoed that concern after the hearing, framing the issue in practical terms rather than statutory language.

“Even if she had a backup, she still needs to see what shape the computer is in—what’s left of it,” Ticktin said. “Of course you’ve got to look at it.”

The judges, however, pressed the defense to identify a legal source—not just a practical concern—for what Case described as a duty to investigate.

“I’m looking at section 20701,” Judge Grant Sullivan said, referring to the federal statute governing election records. “I don’t see any reference to investigate or investigation. Please help me where that legal duty came from.”

Why sentencing became the fulcrum

The panel’s focus on sentencing did not arise in isolation.

At sentencing, District Court Judge Matthew Barrett leaned heavily on Peters’ public statements and advocacy—material her attorneys say the jury wasn’t allowed to consider. 

On appeal, Peters argues the court barred that evidence at trial, then turned around and used it at sentencing to justify a nine-year prison term, raising First Amendment and due process questions now before the appellate panel.

‘You don’t get to ride both horses’

Judges questioned whether Peters’ conviction on misdemeanor language had been treated as a felony for sentencing purposes and whether the trial court relied on conduct and speech it had excluded from trial to justify a harsher punishment.

At one point, Welling told the state directly. “You don’t get to ride both horses.” 

The remark captured the court’s concern that evidence and speech barred from the jury could not later be used to enhance punishment at sentencing as the trial record suggests occurred here, a core issue raised in Peters’ appellate briefs.

Judges also raised constitutional concerns about whether Peters was punished for protected speech.

“The court cannot punish her for the exercise of her First Amendment rights,” Welling said.

At sentencing, the court characterized Peters’ public advocacy in sharply personal terms and cited her continued speech as an aggravating factor—language her attorneys argue crossed constitutional boundaries.

“You got a conviction for a misdemeanor, and yet the [trial] court not only called it a felony, but treated it as a felony.” He added, “They decimated them when it came to the sentencing.” 

Pressure on the state’s theory

The court’s scrutiny extended beyond the defense, with judges questioning how the state characterized the forensic copy while acknowledging Peters was never charged for making it.

“You seem to be hesitating to even concede that making the backup was okay, even though she wasn’t charged with it,” Judge Tedd Tow said.

Senior Assistant Attorney General Lisa Michaels responded that the case was not about copying records.

“She wasn’t charged with copying the election server,” Michaels said. “And we don’t agree that her duty to preserve records included a duty to copy the election server. But even if it did, she didn’t need her plot of deception to do that.”

Ticktin said the exchange reflected how closely the judges tested the state’s explanation. And he noted that the state attorney struggled to answer those questions.

Motive, intent and the jury’s role

Judges also focused on what the law actually requires to prove deception. Several exchanges centered on whether prosecutors had to show that Peters caused harm—or whether it was enough to show she intended to influence an official decision, even if she believed she had a good reason for doing so.

“That’s motive, not intent,” Tow said, explaining that a job-related motive does not negate intent to deceive a public official if deception is an element of the offense.

Case argued the distinction mattered precisely because the jury was asked to decide intent.

“The jury could consider harm in deciding what her intent was and why she acted the way she did,” he said.

The judges didn’t appear convinced, pressing on whether that evidence actually belonged in front of the jury.

After the oral arguments, Ticktin argued that Peters’ motives could not be separated from what the Trusted Build did to the underlying records. And how others have framed Peters’ actions to this point.

“They keep saying she [Peters] ‘breached’ her own election equipment. That’s like saying someone breached their own car. She was the elected clerk. She had authority over that equipment and was who made the contract with Dominion machines. The equipment wasn’t breached by her. But this is what they keep saying. This is what Jena Griswold is saying. And the funny thing about that is Jena Griswold didn’t have the right to go into that equipment, and she was the one that erased it—or had her guy Danny Casias do it.”

A different posture on review

For supporters of Peters, the hearing marked a departure from the tone that defined earlier stages of the case, particularly the sentencing hearing that drew national attention and spurred legal action by her defense team.

Ticktin said what stood out was not agreement with the defense, but the court’s discipline.

“In Florida, we have rules where you’re not even allowed to criticize judges or impugn the integrity of the system,” Ticktin said and added, “but what these judges today did more to fix what Matt Barrett did to destroy. When you have judges that are like that, just so full of hate that they can’t even keep it to themselves. And they’ve got to voice it and accuse somebody and destroy their life with no concern at all. We had three judges that obviously worked very hard. What we saw today was careful, impartial judging.”

RMV reached out to the Colorado Attorney General’s office for comment following oral arguments but did not receive a response by publication time.

The case is now under advisement, with a written opinion to follow. Ticktin said the judges’ questions made clear that sending the case back to the trial court—potentially before a different judge—is among the outcomes now in play.