Federal judge “troubled” by Colorado public defenders refusal to take couples case

A federal magistrate judge on Monday urged the Colorado State Public Defender’s Office to reconsider its decision to deny representation to a low-income couple in Larimer County, calling the office’s refusal “a wrong.”

Magistrate Judge Scott Varholak then went on to rule against the couple, finding he could not force the public defender’s office to take up the couple’s defense because federal courts are generally barred from meddling in state court cases.

But Varholak nevertheless “seriously” urged the public defender’s office to voluntarily reconsider its stance, calling the case “concerning” and saying he was “troubled” by it, according to a recording of the hearing obtained by The Denver Post.

“I do think the public defender has the opportunity to potentially right what I think was a wrong here,” he said. “At minimum, a wrong in ignoring their own procedures and ignoring the procedures set forth in the chief justice directive… I do urge the public defender to reconsider that decision.”

Married couple Sara and Dale Brubaker filed the federal lawsuit in October. Both are facing criminal charges of felony child abuse, assault and tampering with evidence in Larimer County, and had hoped to be represented by the public defender.

The Brubakers together make less than $3,000 a year. Because their income is so low, the couple should automatically qualify for a public defender under both the state’s rules and the public defender’s policies, records show.

Five attorneys estimated the Brubakers’ defenses would cost $100,000 each, court records showed. Their attorney in the civil case, Christopher Gregory, argued paying those costs would leave them destitute. The couple could afford an attorney for the lawsuit because it was significantly less expensive than mounting a criminal defense, he said.

The public defender’s office refused to take on the Brubakers’ cases, finding that the couple had too much money to qualify for a publicly funded defense. A Larimer County judge found the couple was not indigent because they have savings of about $125,000, two vehicles, a home in Wyoming and land in Colorado worth a combined $338,000.

The public defender’s office can seek an exception to the state’s rules on financial eligibility, but they did not do so in this case, court records show. Rather, Larimer County District Court Judge Laurie Dean considered the office’s denial to be a de facto request for an exception, which she then granted.

Varholak said Monday that the exception “has questionable applicability,” according to the recording.

“I spent years as a federal public defender and years as a state public defender in Pennsylvania and I’m not aware of any case in which either of those offices that I belonged to would apply for an exception and try to avoid representation of an individual,” Varholak said.

But he nevertheless denied the Brubakers’ request on the grounds he was prohibited from interfering with the state case.

The couple is scheduled to go to trial this month without attorneys. They face more than two decades in prison if convicted.

“These guys are going to go to trial, they don’t have representation, they’re going to get convicted and the public defender on the back end will be required to provide their appellate counsel,” Gregory said Monday. “It really is silly the public defender won’t reconsider its determination.”

Maureen Cain, a spokeswoman for the public defender’s office, declined to comment.

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