Judge Barrett refuses to step aside in Peters case, defends sentencing math

By Jen Schumann | Rocky Mountain Voice

Judge Matthew Barrett denied Tina Peters’ motion to disqualify him on Monday afternoon. In a 16-page order, he accepted every factual claim in the defense affidavits as true, then concluded none of them meet the legal standard for recusal.

In a footnote on page 15, he answered the math the defense had used to challenge his letter to the governor.

Barrett’s order, filed at 3:37 p.m., clears the procedural condition he had cited as the reason he could not rule on Peters’ renewed motion for bond pending appeal. 

The bond question now sits on his desk under the 48-hour window Colorado Appellate Rule 9(b) sets for ruling on bond pending appeal. The defense’s reply on that motion, filed late Sunday night, set up the dispute that follows—a factual challenge to Barrett’s letter to the governor, and a procedural argument that the bond question is already heading to the Court of Appeals.

A footnote, a statute—and two different arguments

Barrett’s letter to Gov. Jared Polis, which he posted to the public case file on April 22, three hours after Peters filed her disqualification motion, explained the sentence in a single line.

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

The defense answered that line in a separate filing.

“Judge Barrett’s assertion that he ‘chose a sentence in roughly the midpoint of the presumptive ranges’ is not true,” the 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.”

Barrett’s answer came Monday. He put it in a footnote.

“Defendant’s assertion that I was untruthful with the Governor when I wrote that I sentenced Defendant to roughly the midpoint of the applicable presumptive ranges for the felony crimes she was convicted of is flatly contradicted by the law,” Barrett wrote in footnote 4 of his order. He cited C.R.S. § 18-1.3-401(1)(a)(V.5)(A), the Colorado statute that sets the presumptive sentencing range for felonies.

Barrett’s order, in footnote 4 on page 15, cites the statutory range for individual sentences—not the consecutive structure the defense disputed.

The two sides are not arguing the same point.

The defense’s challenge is about the total sentence. Eight years and nine months is what Peters received, because Barrett ran the sentences end to end instead of at the same time. Barrett’s response is about the individual sentences falling within the legal range for each conviction. He does not address the consecutive structure the defense raised.

What Barrett accepted, and what he rejected

The order takes an unusual path. Barrett accepts the defense affidavits as true, then explains why he stays anyway.

“It is undisputed that all the conduct alleged in the motion occurred on the record,” Barrett wrote. “The case law is clear: what occurs in front of a judge, or during a case, is rarely enough to warrant disqualification.”

This is the legal foundation of his reasoning. Under U.S. Supreme Court precedent in Liteky v. United States, opinions a judge forms during proceedings—even harsh ones—generally do not establish bias unless they show “deep-seated favoritism or antagonism that would make fair judgment impossible.” 

Barrett applied that test and concluded his comments at sentencing did not cross the line.

Barrett accepted, as he was required to, the affidavits’ description of his demeanor at sentencing. In a separate footnote, he denied the underlying claim. “I was not angry with Defendant,” he wrote. “I did not raise my voice, yell, angrily gesture, or the like which was apparent to anyone who watched the sentencing proceedings.”

He then answered the defense’s extrajudicial-source argument.

“Defendant misunderstands the scope of the extrajudicial source doctrine,” Barrett wrote. “While I excluded evidence regarding many of those matters from the trial itself, all the information I learned about the case came from the proceedings.”

The defense had argued Barrett’s references to “podcasts,” “snake oil” and “junk” during sentencing came from outside the courtroom record—making them extrajudicial under United States v. Grinnell Corp. and, under federal precedent, grounds for disqualification. Barrett’s answer is that information he heard during sentencing arguments and pretrial proceedings, even when excluded from the evidence the jury saw, still counts as judicial knowledge.

Barrett’s order, page 14, rejects the defense’s extrajudicial-source theory.

Barrett also acknowledged the Court of Appeals’ April 2 finding that he “obviously erred” by partially basing his sentence on Peters’ protected speech. Errors during proceedings, he wrote, are “part of being a judge.” 

He committed—for the first time on the record—to following the appellate ruling at resentencing.

Judge Tow’s question, in the bond reply

The bond reply put new material on the record. That material includes a transcript excerpt from the Court of Appeals oral argument the same defense team won three weeks earlier.

The transcript captures Court of Appeals Judge Tow questioning the prosecution during the Jan. 14 oral argument. The defense filed it as Exhibit O.

“But again, if there’s a specific intent crime, which this is, the prosecution has to prove that specific intent… And she says, even if I did what I did, my intent wasn’t that. And here’s the evidence of that,” Tow said. “The jury has to hear that evidence to be able to determine whether the prosecution proved the charge.”

Tow asked the question Peters’ team plans to raise on appeal—whether the trial court denied her the right to present a complete defense. The defense filed the document as an unofficial transcript, attaching it to demonstrate that the appellate panel itself questioned the issue during oral argument.

Defense Reply, Exhibit O, page 33—Tow’s question from the bench.

Defense Reply, page 3, states Peters will file for certiorari and lists the four constitutional issues she will raise.

The reply also raises an equal-protection challenge—arguing that Colorado’s lack of any minimum-security prison for women, when four exist for men, requires the court to consider Peters’ conditions of confinement as part of the bond analysis. 

The 48-hour question, both readings

With recusal denied, the bond motion is now ripe for ruling. Under Colorado law, that ruling is on a clock.

The People’s response, filed last week, cited the rule.

“Defendant may request an appeal bond from the Court of Appeals if this Court does not deny or grant her motion within 48 hours,” the response said. “C.A.R. 9(b); § 16-4-205, C.R.S. 2026.”

Both sides agree the rule exists. They disagree on whether the clock has already run.

The defense argues it has.

“This Court has already exceeded 48 hours before ruling on Mrs. Peters Motion for bond,” the reply said. The defense filed the bond motion April 22. By their reading, the 48-hour window started ticking then and has long since expired.

Barrett has not directly addressed the timing argument. But his April 22 order said he could not rule on bond until recusal was resolved—a procedural rule that pauses a judge’s authority to act on substantive motions. Under that reading, the 48-hour clock was paused while the disqualification motion was pending and started running Monday afternoon, when Barrett issued his ruling.

Barrett’s April 22 order said he could not rule on bond until the recusal motion was resolved.

That motion is now resolved.

Either reading produces the same destination. If Barrett denies bond, Peters can appeal under C.A.R. 9(a)—the rule that governs review of trial court bond decisions. If he does not rule within 48 hours, she can apply directly to the Court of Appeals under C.A.R. 9(b)—the rule that lets a defendant skip the trial court when no ruling comes. The same panel that vacated her sentence three weeks ago—Welling, Tow and Lipinsky—would handle either path.

Peters has been in custody 573 days, since Barrett sentenced her on October 3, 2024.