DenverColorado has just five district court judges who are Black, another 15 who are Latino, and a similar lack of minority prosecutors and public defenders — numbers so low that a state supreme court justice said it could undermine “public confidence that justice is truly equal.”
The Denver Post examined diversity data from the state’s payroll system, as well as data from district attorneys’ and public defenders’ offices, and found that despite a growing population of people of color in Colorado, its judicial system does not adequately represent those it serves, and in several jurisdictions not at all.
“You could go through your entire case and be surrounded by only white people,” said Megan Ring, Colorado’s state public defender since 2018. “It’s obvious that there just aren’t enough non-white people on the bench, in my office, and in the district attorneys’ offices.”
Judges and others close to the system say part of the problem is drawing people of color into the profession, then getting them to accept jobs in the offices of DAs and public defenders, and preparing them to be judges. But the process of selecting a judge is also clothed in secrecy. The public isn’t allowed to know who’s even applied for the positions and those who help make the choices are forbidden from talking about it.
About two-in-five of the defendants in Colorado are Black or Latino. The state’s population is 4% Black and 20% Latino. Black judges, meanwhile, account for 2.5% of the 196 district court judges in Colorado; Latino judges hold 7.6% of the positions.
Black and Latino judges hold about one in 10 of the county judgeships in Colorado, The Post found.
“It boils down to a public perception that the law is fair and impartial, and that justice is truly equal to all,” said Colorado Supreme Court Justice Monica Márquez, who’s held the position since 2010. “It makes all the difference when the bench and those who render the rulings reflect the community they serve. To be clear, every judicial officer in Colorado strives to have a fair and impartial bench each day. But when it’s not diverse, it lends to the perception that they do not … and it undermines public confidence that justice is truly equal.”
Colorado supreme court justices from left to right, Chief Justice Nathan B. Coats, Monica M. Márquez, Brian D. Boatright, William W. Hood III and Richard L. Gabriel listen as Gov. Jared Polis speaks during the state of the state address at the Colorado State Capitol on Thursday, Jan. 9, 2020.
Among The Post’s findings:
Nationwide, 23 state supreme courts lack any judge of color despite a significant population base, according to the Brennan Center for Justice. In Nevada, for instance, where persons of color make up 51% of the state’s population, its seven justices are all white.
In Colorado, there are signs of change. Gov. Jared Polis – the sole authority for appointing Colorado’s district-court judges and its 114 county-court judges, not including Denver County – recently has named more Black and Latino people to those positions.
Of the 15 district court appointments Polis made in his first nine months in office in 2019, 13 were white.
Then judges and diversity advocates last October, mostly via a joint initiative by the Colorado Bar Association and the Colorado Judicial Institute, began to make noise anew that the felony benches across Colorado do not reflect the population around them.
Since then, Polis has named 15 more district court judges, four of them Black — one in El Paso County and three in Denver, so that now four of Denver’s 31 district judges are black.
“Increasing diversity on the bench has been one of Gov. Polis’ primary judicial goals since taking office just 19 months ago,” spokesman Conor Cahill said in an email to The Post, noting the governor must choose from candidates referred to him by judicial nominating committees.
“Long before the protests and marches, we faced zero Black judges on the appellate and supreme court benches, and zero in the trial courts,” said Denver County Court Judge Gary Jackson, a long-time vocal proponent of judicial diversity. “I applaud what Gov. Polis has done. But despite Colorado being considered a progressive state, we were reaching an embarrassing point of zero Black judges at the highest levels.”
The Denver County Court is the only jurisdiction in Colorado where judges are not chosen by the governor. The 18 judges who preside over it are appointed by the Denver mayor: Five are Latino, four are Black.
Judge Gary Jackson checks in with his court staff before hearing around 35 cases that day at the Lindsey Flanigan Courthouse in Denver on July 13, 2020.
Large jurisdictions don’t fare better
The racial disparity among judges and prosecutors is starkest in Colorado’s largest judicial jurisdictions.
In the 17th Judicial District, for example, where protesters have called for inquiries into the 2019 death of Elijah McClain at the hands of Aurora police, there has never been a Black district court judge.
The district is composed of Adams and Broomfield counties, which include parts of Aurora, and Black residents make up nearly 5% of the population. And while Latinos make up more than a third of the populace in those counties, only three are judges, all of them on the felony bench. There are no Blacks or Latinos among the nine county-court judges that serve the district, records show.
Similarly, the 17th Judicial District Attorney’s office has no Black attorneys among the 80 prosecutors who work there, and only 12 Latinos, according to a statewide survey by the Colorado District Attorneys’ Council that was compiled after The Post began requesting demographics of prosecutors’ offices.
It’s much the same in the 18th Judicial District, which includes Arapahoe, Douglas, Elbert, and Lincoln counties. None of the 24 district court judges are Black judges and just two are Latino. There are two Black county court judges among the 13 in the district, but no Latinos, The Post analysis found.
A lack of diversity in district court judges
In many Colorado judicial districts, the racial makeup of district court judges doesn’t match the population. The charts show the racial breakdown of current judges for three of the larger districts, and what it would be if it matched the population. (County court judges are not included in the comparison, only district court judges.) See charts for all 22 judicial districts after the story.
By Kevin Hamm, The Denver Post
The prosecutor’s office for the 18th district has three attorneys among its 91 who identified themselves as Black, and one who said they are Latino, the CDAC data show. Thirty-two attorneys, however, did not self-identify their race or heritage.
“This is a ridiculous conversation that we’re even having to have,” said Sara Scott, chief executive officer of the Center for Legal Inclusiveness in Denver. “We don’t have Black judges because we’re in a system where white privilege is how the game is played. We might bring people into the fold, into law schools, into our law firms, but we’re not really making them inclusive as partners or higher-ups where they can apply and be seriously considered for these judicial positions.”
And in Pueblo’s 10th Judicial District, a Black has never been named to the bench and there are no Latinos among its eight district judges even though Latinos make up 43% of the population there, one of the highest concentrations in the state. Its district attorney’s office employs 21 prosecutors: 20 are white and one is Asian, the CDAC survey shows.
“It gives credence and credibility to the system when it’s diverse, so the community can recognize it is well-represented,” said Dennis Maes, a Hispanic judge who retired in 2012 after 17 years as the 10th District’s chief judge and 24 years on the bench.
Although it’s impossible to know if bias plays a role, The Post interviewed seven attorneys and judges of color who said they applied for judgeships at least five times some more than a dozen before they were even granted an interview by the seven-person nominating committee that controls which names go before the governor for appointment. Several attorneys said they simply stopped applying because they never got an interview. All said they didn’t want to be identified because of risk to their careers. One Black woman said she stopped after her 15th application.
“I wholeheartedly agree that the community makeup should be reflected on the bench,” Maes said. “By the same token, I can’t raise a claim of bias when we don’t have people applying for the position. If you don’t have Hispanics and Blacks applying, you can’t appoint them.”
Dennis Maes, a former 10th district judge, who retired in 2012 after 17 years as chief judge and 24 years on the bench, has a portrait taken at his namesake Dennis Maes Pueblo Judicial Building on July 14, 2020.
A trickle in the pipeline
It’s known as the pipeline: the flow of people who choose to pursue a law degree, who choose to remain in the profession, and who choose to pursue it to its highest levels, including the robes of a jurist.
“If you’re a person of color, it’s hard to achieve what you can’t see,” said attorney Patricia Jarzobski, past president of the Colorado Bar Association and co-chair of the CBA-CJI diversity coalition with Jackson. “And if you don’t see diverse judges on the bench, it feels to you that it’s not attainable.”
Prosecutors, public defenders, and judges all say it begins at the law schools.
When S. James Anaya became dean of the University of Colorado Law School in 2016, the lack of diversity was readily apparent: His first incoming class had just one Black student.
“We can’t have an adequate legal system unless the players reflect the society they serve,” Anaya said, noting he created a scholarship program aimed at increasing the law school’s diversity. “It’s just the right thing to do. It’s what justice requires.”
S. James Anaya is the dean of the University of Colorado’s law school.
Leaders at Colorado’s two law schools — CU and the Sturm College of Law at the University of Denver — acknowledge that more can be done to recruit and retain students of color, but say they’ve made progress in recent years. They say it requires more scholarships, more paid internship opportunities, and greater support. They point to a broad range of systemic socio-economic barriers that can keep talented people from applying to law school or graduating.
“For generations, legal education has been closed to historically marginalized people, both explicitly and implicitly,” said Alexi Freeman, director of externships and public interest initiatives at Sturm.
Jackson said things have worsened since he was a law school student.
“The pipeline issue is very real with some key issues,” Jackson said. “One is the fewer number of attorneys of color who are being graduated, well reduced from our days back in the 1970s when there were many more.”
Mentorship programs exist at every level, with some programs targeting prospective attorneys in high school, offering support, encouragement, guidance over several years.
“My mentee is a junior at Colorado State University already,” Márquez said, noting she was among a diverse group of attorneys who worked with former Colorado Attorney General Ken Salazar and are now judges. “These are programs where we are making progress. It’s slow, but it’s forward movement and for that I’m proud.”
Those who decide to pursue law school must overcome the sticker shock of a degree: With living expenses, each year of law school tops $54,140 at CU and $76,182 at DU.
Students without a financial cushion — who are more likely to be students of color — can balk when considering taking on enormous debt, Freeman said. Those who pursue a law degree anyway face enormous pressure to pay off the heavy loans when they graduate, which can draw them away from lower-paying public-service jobs such as prosecutors, public defenders, and judges.
“If you’re recruited by three entities, and the private sector says I’ll pay you twice what the public sector can, and you have $300,000 in loans, that’s going to weigh on you,” said Tom Raynes, executive director of the Colorado District Attorneys’ Council, who travels to law schools nationwide to recruit prosecutors.
Once a young attorney is recruited, a district attorney’s office must make sure they are supported and feel included, according to Rashmi Goel, an associate professor at Sturm who teaches a course on multiculturalism and race. Being the only person of color in any organization can weigh on a person, making them feel as if they don’t belong.
“I know law students of color who were thought to be the client or the victim, and not a law student,” Goel said. “And if you already have imposter syndrome, that’s just going to amplify that.”
That’s what happened to Liza Willis, senior chief deputy district attorney and legal administrator for the Denver District Attorney’s Office. Nearly a decade into her career, a defense attorney approached her in an empty courtroom and asked where the prosecutor was. Despite her suit and heels, the man assumed Willis, a Black woman, wasn’t a DA.
“That struck me and has always remained with me,” Willis said of the incident from the early 2000s. “It angers me. I’m sad about it. But now, sad enough, I’m used to it. And I don’t expect it to change. I expect it. I really do. And that’s horrible to say.”
Elizabeth Espinosa Krupa, past president of the Colorado Hispanic Bar Association, said it was the same for her: “I go into court and half the time I’m confused for the interpreter by doing nothing other than walking into the courtroom,” she said. “I’m criticized in my practice for a Mexican accent that is distracting and I don’t even know Spanish.”
The makeup of the attorney population reflects the makeup of the benches they stand before, Justice Márquez said.
“We don’t recruit our judges from the general population but from the attorney population, and seeing that, the group doesn’t look like our general population either,” she said. “There are already leaks in that pipeline.”
Maes ran Pueblo County’s legal aid services for several years before applying to be a judge. Jackson was the first Black prosecutor in Denver’s district attorney’s office when he joined that office in 1971.
Judge Gary Jackson leaves his chambers to head to his courtroom at the Lindsey Flanigan Courthouse in Denver on July 13, 2020.
Today, however, hiring a person of color to either job remains a challenge. Of the state’s 682 prosecutors, 81 percent are white, the CDAC data show.
“Every DA I’ve worked with in my 10 years here has been interested in that topic and has tried to recruit diverse candidates,” Raynes said. “Who’s making decisions in your community should reflect your community.”
Numerous studies have found that Blacks and Hispanics — especially those who are poor — are more likely to face higher bail amounts, harsher charges and longer sentences in the U.S. criminal justice system. Without people of color in decision-making roles, those disparities can go unnoticed or be more easily ignored, Freeman said.
“I think that implicit bias is present and has been well-documented and lots of studies have been done,” Freeman said. “It’s very hard to have that conversation, I think, in the midst of a trial when everyone in the room — except, perhaps, the person on trial — is white.”
At 89%, the ranks of Colorado’s public defenders are nearly as white as the prosecutors, according to state data provided to The Post through an open-records request.
“We know this is an issue,” Ring said. “We know we’re not diverse enough. We know even if we make strides bringing more diversity into the agency, if it’s not inclusive, we won’t retain people.”
The public defender’s office has worked with a facilitator to host focus groups about diversity, equality, and inclusion in the agency, Ring said.
“The truth is there are so many public defenders I know that think because they’re public defenders, they’re not racist,” Ring said. “And that’s not true. We all are.”
Secretive selection process
How judges are chosen in Colorado changed in 1966 when the state moved from a voter-chosen process to one where a committee narrows down a field of applicants to three, and the governor chooses one of them. Known as the Missouri Plan, a seven-member commission made up lawyers and non-lawyers appointed by the governor, the chief justice of the state supreme court, and the attorney general, the process is used by 34 states and the District of Columbia.
Each judicial district has its own judicial nominating commission — the supreme court has one of its own as well — and members serve a six-year non-renewable term. While the names of the commission members are public, the process by which they choose the judicial nominees is not.
The names of applicants are kept secret, as are interviews, discussions, and the votes of the commission. Once the finalist names are sent to the governor — it’s usually three — all the notes and contents of the commission’s work are sealed.
The only names the public ever sees are those before the governor. And while the public can offer its comments about those nominees, that information is also kept confidential. Denver Post requests for some of those emails were denied.
Once on the bench, a judge faces voter approval in even-numbered years to remain there.
“The selection process is a very competitive and difficult process to go through,” said Frances Johnson, who became the first Black woman, and only the second Black person, named to the district court bench in the 4th Judicial District for El Paso and Teller counties when Polis selected her.
A former county magistrate, Johnson said it was the 10th time she had applied for the job.
Judge Frances Johnson works at her office in Colorado Springs on July 16, 2020.
“It can be quite political for a process that is not supposed to be,” Johnson said. “I felt certain candidates were being groomed for the positions, and it’s too much of who you know. Perhaps it’s not possible to remove politics from human groups.”
Another concern is implicit bias. Though commissioners interviewed by The Post — nearly all refused to be identified because the process is to be secret — said they work hard to ensure fairness, some wonder if that’s truly possible.
“The only way for the process to be fair is dealing with implicit bias and group decisionmaking,” Johnson said. “Many who do that, especially on hiring, unintentionally or not, are looking for those who make them feel comfortable, and we don’t realize that those who do are those from the same community, who look like us.”
There have been efforts at educating commissioners across the state about implicit bias and the Judicial Department in January hired attorney Sumi Lee to address judicial diversity statewide, a job the legislature created in 2019.
“It’s to get a better understanding to what the barriers are in the pipeline,” Lee said. “If you don’t have enough diversity in the pipeline, you’re just not getting diverse enough candidates.”
The state division that licenses attorneys only recently began asking about demographics and returns have been erratic. But the best the attorney registration division can say for now is about 2.5% of the attorneys are Black and 6.2% are Latino.
As for who applies to become a judge, Chief Justice Nathan Coates can’t mandate applicants offer their demographic information although Judicial Department spokesman Robert McCallum said they are working on a system to collect demographic information on a “voluntary and anonymous basis.”
Because a Supreme Court justice is always assigned to monitor each commission, Márquez said she’s not seen anything other than an honest process at work.
“The conversations are open and robust and the questions asked are not unfair or discriminatory,” she said. “In my 10 years doing about four or five each year, I’m happy to say the process works incredibly well and consistently seen thoughtful, hard-working people do their best to send the best possible list to the governor. I’ve never seen any bias.”
What she won’t say — and no sitting commissioner interviewed by The Post would — is whether there are applicants of color in the first place.
“One of the data points we’re trying to gather is who’s applying, who’s getting interviewed and who’s getting short-listed,” Jarzobski said. “My experience on the 17th Judicial District nominating commission, which was one of the most active, was we didn’t have a person of color apply.”
Attorney Eric Nesbitt, newly named to the 18th Judicial District nominating commission, said he’s anxious to see what the applicant pool looks like. Appointed in January, he hasn’t attended a meeting as yet because no openings have occurred.
“I don’t know what the applicant pool is or its diversity,” he said. “We don’t have a bench that reflects the population, particularly in our urban areas. We always try to remind the majority that we’re qualified to do the job and we are often overlooked in the corporate boardrooms, so it doesn’t surprise me that the same applies in the judicial process.”
The commissions themselves are diverse. Along with Nesbitt, who is Black, there is another Black man and a Hispanic woman. The other four are white men. Other commissions similarly reflect the general population there.
“What I’m concerned that’s not public is the name and ethnic background of those who applied, who were not interviewed and who were not sent up to the governor,” Jackson said. “We cannot know if the process is inherently fair and unbiased if we don’t have any idea what they’re starting with in the first place.”
David Migoya: firstname.lastname@example.org; 303-954-1506; @davidmigoya.
Elise Schmelzer: email@example.com; 303-954-1368
Sourcing & Methodology
The Denver Post acquired employee data showing racial and ethnicity demographics for all its judges, prosecutors and public defenders, roughly 1500 people. The information was acquired from several sources including the state Judicial Department, the office of the Public Defender and various districts attorney offices, as well as the Colorado District Attorneys Council, which conducted its own diversity survey in light of The Post’s inquiries.
The Post also compiled details from dozens of public statements issued by the Judicial Department regarding the gubernatorial appointments of new district and county court judges.
This content was originally published here.