2018 Election, Criminal Justice, Elections

Sloan: Judging experience in the AG race

The Attorney General’s race in Colorado has progressed largely along the issue of experience, pitting a seasoned prosecutor (George Brauchler) against a professor with limited practical courtroom experience (Phil Weiser). Of greater interest, perhaps, would be an examination of what that “limited experience” consists of, revealing as it would insights into the underlying philosophical disposition of the person applying for the job of Colorado’s top law enforcement official.

Well it turns out that much of Mr. Weiser’s limited experience was devoted to attempting to reduce the time a serial child molester spent safely behind bars, as pointed out in a new election ad that is causing a substantial amount of Democratic heartburn.

Now, most of us can agree that there are issues in the criminal justice policy realm concerning prison reform, and whether or not we are incarcerating too many non-violent offenders. But, with few exceptions, pretty much everyone agrees that some people should be in prison, those who pose a threat to children particularly so. Serial sex offenders and pedophiles as a class of criminal are among the most resistant to rehabilitative efforts and the most prone to recidivism. The case of Anthony H. Warnick is illustrative.

Back in 1989, in Oklahoma, Warnick was convicted of lewd molestation of a child. Seven years later, in 1996, he was convicted a second time, after pleading not guilty to lewd molestation of his girlfriend’s six-year-old son. At the same time, he was also convicted of the more serious offense of sexual abuse of a child, in this instance of another girlfriend’s four-year-old son. The details are too nauseating to reproduce in this space, but if you have the stomach and care to subject yourself to a description of what the worst specimens of humanity are capable of, you may read the police affidavit here. Appropriately, Warnick was sentenced to two consecutive terms of 20 years to life.

Fast-forward eight years, to 2004, and Warnick was again before a court, this time the 10th Circuit Court of Appeals. It seems that a few years after being carted off to prison, the State of Oklahoma certified that Warnick had completed the first of two consecutive sentences, based on a calculation of good-time credits. Subsequent auditing of those good-time credits revealed discrepancies resulting a re-calculation that effectively delayed this cretin’s early release. Feeling wronged, he appealed that decision. Mr. Warnick, a man who repeatedly molested young children, wanted to get out of prison early.

Enter Mr. Weiser. Weiser was, at that time, a member of a volunteer panel of attorneys available to be appointed to 10th Circuit cases under the Criminal Justice Act Plan. Mr. Weiser volunteered for the program, was subsequently appointed to the panel, and in due course was assigned the Warnick case.

The salient question is: to what extent was Phil Weiser obligated to represent Warnick, a convicted child molester, in this matter? The answer would appear to be that he was not, given that a) his participation in the program was completely voluntary, and b) all members of the program were entitled to waive up to three cases, suggesting that he could have refused the assignment. Did Mr. Weiser use his waivers on other cases? If not, why didn’t he use one to avoid representing a monster like Warnick? And if he had used all of his waivers, why not simply resign the post rather than defend the fictitious “right” of a convicted serial pedophile to early release from prison?

The ad that bubbles all of this up to the surface is predictably evincing some indignation among the left and supporters, particularly in the media, of Mr. Weiser’s candidacy. The cry is raised aloft that an attorney has a transcendent duty to vigorously assert the legal rights of any defendant, however pernicious, and that is absolutely correct. It also does not grant a candidate for state Attorney General immunity from examination of his professional history as an indication of suitability for the job.

Now, I understand the histrionic requirements of a vigorous defense of an accused mandated by our adversarial system of criminal justice. But this had nothing whatsoever to do with the defendant’s guilt or innocence, a determination of which had been firmly established through due process long before. This could more properly be characterized as a didactic attempt to evade the law. Society, through the legislative process, long ago decided that its monstrous elements, like Warnick, should be imprisoned for a long time once duly convicted, as much for the protection of the most innocent as for punishment – a collective sentiment that was reflected and expressed in the sentence.

And yet arguing to reduce this sentence was the hill upon which Weiser chose to make his sole practical legal stand. It may be that Weiser elected to take this case as an intellectually stimulating exercise in constitutional law, and indeed there are interesting legal issues that come up. What seems to have been lost in his calculations, however, are the real-world applications of what goes on in a courtroom – had Mr. Weiser prevailed in his argument, a repeat child sexual predator would be loosed back on society earlier than the justice system, due process, and common decency demanded.

This is not mere academic calisthenics: once he was released, a decade later in 2014, Warnick was promptly arrested for failing to register as a sex offender. Two years after that he was arrested again for child pornography.

And therein lies the danger with trusting in a strictly academic approach to an office with the gravity of Attorney General. The sordid episode begs the question: is a lenient, idealistic, and morally ambivalent approach to the wolves a trait to be desired in the head sheepdog?

Kelly Sloan is a Denver-based public affairs consultant, political analyst, columnist, and commentator.

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