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ACLU discovers Durango law in violation of Colorado Constitution

City to allow jury trials in municipal court for minor offenses
Anthony Nocella, an assistant professor at Fort Lewis College, was cited for parading without a permit on Inauguration Day this year in Durango. The case was ultimately dropped, but while defending Nocella, the American Civil Liberties Union discovered a city ordinance was in violation of the Colorado Constitution.

The city of Durango agreed to revamp its municipal codes to allow residents facing a fine for low-level criminal offenses to receive a jury trial, after hearing from the American Civil Liberties Union.

The ACLU notified the city earlier this month that denying defendants the right to a jury trial, even for petty offenses, such as camping without permission, violates the Colorado Constitution.

The ACLU learned of the city’s unlawful ordinance while representing Anthony Nocella, an assistant professor at Fort Lewis College, who was accused of obstructing streets and parading without a permit. Nocella, who denied the charges, demanded a jury trial but was denied the opportunity. The city said Nocella wasn’t entitled to a jury trial because the prosecutor wasn’t seeking any jail time.

“The right to a jury trial is considered one of the bulwarks of liberty,” said Mark Silverstein, legal director of the Colorado ACLU.

Even when a defendant is not facing jail, state law preserves a person’s right to a jury trial, he said.

“Someone who is facing the stigma of a possible criminal conviction should enjoy the right to a jury trial,” Silverstein said.

City judges and prosecutors started informing those accused of minor offenses in municipal court of their right to a jury trial after the city received the ACLU’s letter, City Attorney Dirk Nelson said.

The city will revise the ordinance concerning jury trials, but first Nelson plans to research what crimes constitute a petty offense and align the new ordinance with a specific definition.

“It’s not that we want to deprive people a of a jury trial,” he said.

But offenses in municipal court tend to be minor, and the goal in municipal court is to reach resolutions rather than to be punitive, Nelson said.

Until Durango City Council approves a new ordinance, the option of a jury trial is available to everyone, he said.

While jury trials are not common, they are requested in municipal court, and Nelson doesn’t expect the revision of an ordinance to bring about big changes in the court, he said.

The ordinance in question was approved in 2014 as part of a larger revision of city law, and it formalized a common practice in municipal court, he said.

In Nocella’s case, he could have faced up to 90 days in jail and/or a $1,000 fine, the ACLU’s letter stated. The city prosecutor was seeking a $200 fine and later dropped the case entirely because of the time and cost involved to pursue it.

Nocella said he was glad the city plans to change its ordinance, because many people who go through the municipal court system are working class from La Plata County and the Four Corners and they should be informed of their rights.

“I think it’s great that the city of Durango is recognizing the law and is going to work on providing access to jury trials,” he said.

As for the protest that led to the charges, Nocella said he did not organize or lead it. He helped with traffic and assisting police, he said.

The ACLU lawyers originally agreed to take Nocella’s case because they believed the charges were an attempt to discourage others from exercising their constitutional rights, Silverstein said.

Nocella wanted a jury trial because it would have allowed more people to engage and let the public come to a verdict, he said.

Before the city dropped the charges against Nocella, he was scheduled to have a trial before a judge. But his lawyers were preparing an appeal to the District Court based on his right to a jury trial, his attorney Dave Albrechta said.

mshinn@durangoherald.com

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