Former Mesa County Clerk Tina Peters hasn’t been exonerated. Colorado’s most infamous election denier is still guilty of a litany of crimes related to tampering with Mesa County voting equipment.
But a three-judge state appeals court on Thursday unanimously ruled – erroneously, we believe – that her sentence was tinged with bias, saying the sentencing judge improperly considered her beliefs about election fraud, which are protected speech. The court ordered that Peters’ case be sent back to the trial court for resentencing.
The appeals panel found that the trial judge who sentenced Peters, Matthew Barrett, had violated her free-speech rights by criticizing her as a “charlatan” who perpetuated the fiction that the 2020 election had been rigged against President Donald Trump.
The appellate panel offered this logic:
“Her offense was not her belief, however misguided the trial court deemed it to be, in the existence of such election fraud; it was her deceitful actions in her attempt to gather evidence of such fraud,” the opinion said. “Indeed, under these circumstances, just as her purported beliefs underlying her motive for her actions were not relevant to her defense, the trial court should not have considered those beliefs relevant when imposing sentence.”
This ruling is inconsistent with judicial logic. It is correct that one cannot be convicted for his or her beliefs, regardless of how erroneous or vile. But if sentencing enhancements for hate crimes are lawful, why is Barrett being called out for applying a similar rationale?
A defendant convicted of murdering a gay person can face stiffer penalties if the crime was motivated by hatred. There’s no separation of the crime (murder) and the protected speech of believing a gay lifestyle is immoral, aberrant, disgusting, etc.
One can’t be convicted for hating gay people, but attacking someone because they are gay is a sure bet to a sentence enhancement. If what Barrett did violates the First Amendment, sentence enhancements for hate crimes also violate the First Amendment.
There is a second reason the appeals court got this one wrong.
In using the term “charlatan,” Barrett was making a specific point that Peters was putting on a show that the elections system is riddled with fraud. Her claims of malfeasance are so bankrupt, it would be impossible for her not to know the system is sound. Every example she gave of ghosts in the machine was debunked to the point of demonstrating the security of the system. This means that Barrett did not enhance her sentence because of her beliefs; he enhanced her sentence because he determined the “charlatan” was lying to advance her fraud.
The appellate court didn’t specifically order a shorter sentence. Nor did it grant a motion from Peters’ lawyers for a different judge for resentencing. But it’s probably a good idea for Barrett to let another judge take over now that his impartiality has been besmirched by judicial review.
Still, there’s a takeaway here about the judicial process.
“The appellate court did not find that the sentence was excessive or inappropriate, but instead identified a narrow issue requiring reconsideration,” Mesa County District Attorney Dan Rubinstein said in a statement. “Unless Ms. Peters accepts that ruling and concedes the absence of any error in her convictions, the case will likely proceed to the Colorado Supreme Court, and the trial court will remain without jurisdiction during that process.”
If the case proceeds to the state Supreme Court, maybe sharper legal minds will recognize the inconsistency the appellate court has laid bare.
Andy Smith is Opinion editor at the Grand Junction Daily Sentinel.
