By Debi Brazzale, COLORADO NEWS AGENCY

A measure dubbed the “Make My Day Better”  law was shot down by the House Judiciary Committee Monday  at the Capitol for the second year in a row. Only one Democrat broke ranks in support of the proposal in an otherwise party-line vote.

The measure, House Bill 1094, would have allowed the use of deadly force without fear of prosecution on the part of a business owner, manager, or employee under certain conditions.   Current law already gives immunity to homeowners who are defending themselves against intruders under the state’s Make My Day statute.

House Judiciary Chair Claire Levy, D-Boulder, said that the measure is too simplistic and may offer businesses too much wiggle room, essentially becoming a license to kill someone unjustifiably.

‘The language of this bill is very simple. If you’re concerned that there might be the use of force, no matter how slight, you get to shoot to kill,” said Levy. “It would be a shield against prosecution.”

Yuma Republican Rep. Cory Gardner, sponsor of the measure, said his bill would act as a deterrent to would-be criminals by letting them know that business owners, like homeowners, have the right to protect themselves.

“People have the right to protect themselves and … we ought to give law-abiding citizens the tools they need to do so,” said Gardner, noting crime rates have declined since 1985, when the original Make My Day law went into effect for homeowners.

“The last thing that ought to be going through a person’s mind as they are trying to defend their life is, ‘Gee, am I going to get prosecuted for protecting my life?’  This bill says don’t worry about that as long as you are within the law,” Gardner said.

Dan Brennan, representing the Colorado Association of Chiefs of Police, told the committee there are too many variables, such as what would constitute unlawful entry into a business.

“Homes are not open to the public.  Businesses want people to walk through their front doors,” said Brennan.  “Unlawful entry may mean different things to different people.”

A representative of the Colorado District Attorneys Council also testified against the measure.

“Our concern is losing the discretion of the DA in not being able to make the determination of whether or not it is appropriate to prosecute,” the organization’s Mark Randall told committee members.

Larimer County Sheriff Jim Alderden, who came to speak for the County Sheriffs of Colorado, disagreed with both the police chiefs and district attorneys. For Alderden, the measure is simply a victims’ rights bill that empowers the victim.

“I’m probably one of the few people here who has looked down the wrong end of a handgun,” said Alderden. “I will tell you that in that circumstance time stops– it slows down and in those moments I shouldn’t have to stop and think about whether or not I’m going to be prosecuted.”

Rep. Sal Pace, D-Pueblo, the lone committee Democrat who voted in favor of the bill along with committee Republicans, said the proposal made sense to him.

“There are sufficient protections around the bill,” said Pace. “Everyone should have a right to defend themselves.”

In other coverage:

The Denver Business Journal: Business owners, holster those guns: Colorado’s “Make My Day” law still does not apply to the state’s workplaces. For the fifth consecutive year, a legislative committee defeated an attempt Monday to broaden the homeowner self-defense protections to places of business. This time, it was the House Judiciary Committee that shot down House Bill 1094, sponsored by Rep. Cory Gardner, R-Yuma, by a vote of 6-5.

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By Matt Masich, LAW WEEK COLORADO
DENVER — Who shoved whom — or whether there was a shove at all — is now moot.
In an interview with Law Week Colorado, John Gleason, head of the state Office of Attorney Regulation Counsel, or OARC, on Tuesday said his office will not ask that criminal assault charges be filed against Centennial attorney Mark Brennan.
Gleason’s office previously told Law Week that it was considering filing a complaint with the Denver District Attorney’s office over a physical altercation between Brennan and OARC prosecutor Kim Ikeler. The incident, caught on video, occurred July 16, the final day of Brennan’s three-day disciplinary hearing.
Exactly what happened in the video has been debated, but this much is clear: Ikeler walked up to Brennan from behind while Brennan was speaking at the podium; Ikeler’s chest made contact with the back of Brennan’s outstretched arm; that contact ended a moment later when Ikeler took a quick step backward; Brennan then turned around and glared at Ikeler for several seconds.
The video also showed that Ikeler remained standing and did not return to his seat as instructed to by Presiding Disciplinary Judge William Lucero.
“This is not trial by combat,” Lucero said to Brennan and Ikeler.
After the incident, an OARC employee in the audience summoned court security personnel to monitor the remaining half-hour of the trial. The next day, OARC asked to review Law Week’s unedited video, but the newspaper’s managing editor denied the request. The relevant portions of the edited tape were ultimately posted online for all to see.
Gleason said the ultimate decision whether to pursue an assault complaint rested with Ikeler, who chose not to.
Brennan, who has described the case against him as a “show trial,” told his side of the story in an e-mail: “I did not shove Ikeler, but put out my hand as I faced the bench and he approached from behind, against which he pushed unsuccessfully. He assaulted me, in violation of repeated court orders that he stay away from me.”
Brennan was representing himself against allegations that his behavior in a 2006 civil trial in Colorado’s federal court violated the Colorado Rules of Professional Conduct. Gleason’s office asked a three-judge disciplinary panel that Brennan be suspended as a result. The panel will release its decision in the next few months.

WATCH THE VIDEO HERE:

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By Matt Masich,, LAW WEEK COLORADO
DENVER — The Office of Attorney Regulation Counsel accuses attorney Mark E. Brennan of breaking two Colorado Rules of Professional Conduct while representing the plaintiff in the 2006 Cadorna v. City and County of Denver trial: Rule 3.5(d), which forbids “conduct intended to disrupt a tribunal,” and Rule 8.4(d), which forbids “conduct that is prejudicial to the administration of justice.”
* Brennan’s most effective defense was video deposition of Cadorna jury forewoman Diane Dillingham. In a three-hour deposition, which was viewed in its entirety by the hearing panel, Dillingham testified that Brennan was a passionate advocate in court and was sometimes smart-alecky, but was not intentionally disruptive or abusive.
* Brennan presented notes from OARC’s interviews with seven of the eight Cadorna jurors. The notes are exculpatory. The jurors said Brennan wasn’t abusive or disruptive, and several said they would hire Brennan if they needed a lawyer. OARC had tried to keep the notes out of the record on the grounds they are hearsay. Prosecutors downplayed the juror interviews and Dillingham’s deposition, arguing that the jurors’ opinions as lay-people were not important as the prosecution witnesses, who were all lawyers or court employees.
* Brennan argued that Judge Robert Blackburn conspired with Denver officials to throw out the Cadorna verdict, using trumped up charges of Brennan’s misconduct as a pretext. Brennan also said OARC is prosecuting him as a warning to those lawyers (especially those without friends in high places) who would take on the city in a lawsuit. However, Brennan produced no evidence of these claims.
* Brennan said that some things OARC alleged that he did during the Cadorna trial are irrelevant because they happened outside the presence of the jury. For instance, Brennan admits to calling opposing counsel Jack Wesoky a “little f—ing weasel,” but that it happened in the hallway outside the courtroom. OARC contends it doesn’t matter where the alleged misconduct occurred.
* Brennan claimed the rules he is accused of violating don’t apply to his situation. The “conduct intended to disrupt a tribunal” allegation doesn’t hold up, he said, because prosecutors could not know Brennan’s state of mind at the trial and can’t prove he intended to cause disruption. Brennan also said that the “conduct that is prejudicial to the administration of justice” allegation is “void for vagueness,” and a “catchall” charge that OARC brings when no real offense occurred. Gleason and OARC contend Brennan’s behavior was so reckless as to be intentional.
The three-member hearing panel is expected to make its ruling in the Brennan disciplinary manner within two to four months. The panel is made up of Presiding Disciplinary Judge William Lucero and private-practice attorneys Edwin Kahn and Paul Willumstad.

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Mark Brennan and Kim Ikeler interact during Brennan’s disciplinary hearing last week in Denver.

Video: Law Week Colorado

By Matt Masich, LAW WEEK COLORADO
DENVER — The disciplinary hearing for Centennial attorney Mark E. Brennan became physical during closing arguments on the third and final day, when Brennan shoved and then glowered at Office of Attorney Regulation Counsel prosecutor Kim Ikeler.
Ikeler’s boss, John Gleason, said Monday that his office is considering filing with the Denver District Attorney’s office a criminal complaint against Brennan over the incident, which was caught on camera by Law Week Colorado.
Gleason’s office on Friday asked to review Law Week’s unedited videotape, but Managing Editor Cara DeGette denied the request. DeGette said relevant portions of the edited tape would ultimately be posted online for all to see.
That video accompanies this story.
The altercation occurred 6:20 p.m. Thursday when Brennan was speaking.
Here’s what followed:
* Ikeler got up from his chair and approached the podium to make an objection. On the first day of the trial, Presiding Disciplinary Judge William Lucero instructed Ikeler not to do this.
* Brennan, who had several times expressed his contempt for Ikeler, was pointing with his arm outstretched to his side when Ikeler approached him from behind. Brennan’s arm effectively barred Ikeler from walking any further. Brennan’s arm and Ikeler’s chest then came into contact, after which it appeared that Brennan pushed Ikeler back.
* Brennan next turned to face Ikeler, glaring intently at him for several seconds, then pointing his finger and shaking his head.
* Lucero called for order. “This is not trial by combat,” he said.
* Brennan then told the hearing panel that Ikeler had deliberately provoked him by violating Lucero’s order not to approach the podium when making objections. Brennan also referred to Ikeler as a “piece of sh-t.”
After the altercation, OARC staff in the audience summoned security personnel, who monitored the remainder of the trial.
In an e-mail to Law Week, Brennan gave his side of the story: “I did not shove Ikeler, but put out my hand as I faced the bench and he approached from behind, against which he pushed unsuccessfully. He assaulted me, in violation of repeated court orders that he stay away from me. He did so to provoke me. I then turned after he backed off, and told him to get away from me.”
The altercation and subsequent release of video calls to mind last year’s kicking incident by then-Rep. Douglas Bruce of a then-Rocky Mountain News photographer. In both cases, the videotape produced conflicting interpretations of what occurred.
Brennan is representing himself against allegations that his behavior in a 2006 civil trial in Colorado’s federal court violated the Colorado Rules of Professional Conduct. Gleason’s office asked a three-judge disciplinary panel that Brennan be suspended as a result.
While Gleason said OARC is considering filing the DA’s complaint against Brennan for allegedly shoving Ikeler, he said his office isn’t planning to bring any more attorney misconduct complaints because of it. Brennan’s e-mail to Law Week did not indicate whether he will pursue assault charges against Ikeler.

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In this video, Mark Brennan’s characterization of a witness’ “mousy presence” and his assertion that the hearing was “a witch trial” draws successive contempt citations from Presiding Disciplinary Judge William Lucero. Video: Law Week Colorado.

“I have never been in a courtroom where an attorney laughs out loud at a witness’ testimony.”
— Presiding Disciplinary Judge William Lucero

By Matt Masich, LAW WEEK COLORADO
DENVER — Colorado attorney Mark E. Brennan did himself no favors Tuesday during a disciplinary hearing to decide his professional fate, when he alternately referred to opposing council as a “worm,” and implied the father of one witness was a Klansman.
Midway through Day 1 of the three-day hearing, Brennan had already racked up two contempt citations — at $250 a piece — in a courtroom drama that could help establish the line between acceptable courtroom bluster and misconduct.
Brennan, in solo practice in Centennial, is accused of violating the Colorado Rules of Professional Conduct by engaging in confrontational behavior throughout a 2006 federal jury trial, Cadorna v. City and County of Denver – as detailed in the current issue of Law Week Colorado.
During opening arguments at the disciplinary hearing, prosecutor Kim Ikeler of the Office of Attorney Regulation Counsel said that Brennan intentionally flaunted Cadorna trial Judge Robert Blackburn’s instructions as a plan to prejudice the jury in his favor. This, along with Brennan’s allegedly abusive behavior to court staff and opposing counsel, violated two of the state rules governing lawyers, he said. One forbids “conduct intended to disrupt a tribunal,” and another forbids “conduct that is prejudicial to the administration of justice.”
On Tuesday, Brennan, representing himself, engaged in the same behavior attorney regulation cited as misconduct in its complaint: He repeatedly interrupted Presiding Disciplinary Judge William Lucero by speaking over him, and expressing displeasure with the proceeding.
Here are a few indecorous highlights from the opening arguments and examination of the first witness:
* While Brennan was speaking at the podium, opposing counsel Ikeler approached the podium to raise an objection. Brennan protested loudly, waving his arm at Ikeler to shoo him away and telling Judge Lucero, “I’m not going to have this worm standing next to me.”
* Ikeler later called as his first witness Ginny Kramer, the courtroom deputy during the Cadorna trial. During questioning, she testified the Cadorna trial lasted seven days instead of four because of Brennan’s bad behavior. At this, Brennan gave a loud, “Ha!” Lucero disapproved, saying, “I have never been in a courtroom where an attorney laughs out loud at a witness’ testimony.”
* Kramer also testified that Brennan openly defied the judge in the Cadorna trial. In his cross-examination of the southern-accented Kramer, Brennan claimed that she personally didn’t like him. He then asked her, “Was your daddy a member of the Klan in Alabama?” Lucero sustained an objection.
* Later, when Brennan asked if Kramer had ever been represented by a lawyer and she replied she had, during a divorce, Brennan asked if she and her husband were fighting over who got the “hound dog and shotgun.”
Far from winning over Judge Lucero and the rest of the three-person panel that will decide the outcome of the hearing, Brennan’s behavior seemed to alienate everyone in the courtroom. By mid-afternoon, he was slapped with two contempt citations.
In the end, the panel must decide whether Brennan’s confrontational style in the Cadorna case was “conduct intended to disrupt a tribunal,” or if it was an unintended consequence of his lawyering style.
The disciplinary proceedings continue today and tomorrow.

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By Matt Masich, LAW WEEK COLORADO
DENVER — Colorado lawyers are on notice to mind their manners in the courtroom.
Rude behavior such as rolling the eyes, making sarcastic remarks and interrupting the judge clearly violates the rules of etiquette — but the state’s attorney regulators say it also violates the Colorado Rules of Professional Conduct and is possible grounds for sanctions.
Attorney Mark E. Brennan knows this all too well. Last year, the state Office of Attorney Regulation Counsel filed a complaint against Brennan over his behavior while representing the plaintiff in a 2006 civil trial in the U.S. District Court for Colorado.
The complaint alleges that Brennan’s unconcealed dislike for opposing counsel and witnesses, expressed through snide comments and negative facial expressions — and his verbal sparring with the judge, Robert Blackburn, broke two rules: One forbidding “conduct intended to disrupt a tribunal” and one forbidding “conduct that is prejudicial to the administration of justice.”
The Office of Attorney Regulation Counsel, or OARC, wrote in its complaint that Brennan’s conduct was “designed to aggravate Judge Blackburn.” Brennan does concede there was tension between himself and Blackburn.
“The reason he and I butted heads was that it became more and more apparent as the trial went on that he was doing everything he could to constrain me from making my case. I deeply resented the fact he was going out of his way to help the city,” Brennan said.
This week, Brennan will appear before a three-person panel, including Presiding Disciplinary Judge William Lucero. The trio will decide whether his lapses in congeniality warrant disciplinary action, which can range from public censure to disbarment.
The disciplinary hearing will be the final act in a tumultuous last few years for Brennan. In June 2006, the Centennial-based solo practitioner won an age discrimination lawsuit and a $1.2 million judgment for his client in a suit against the City and County of Denver. In September 2007, Blackburn vacated the judgment and ordered a new trial because he found Brennan committed misconduct. (Denver eventually settled with Brennan’s client for $850,000 in December 2008). OARC initiated its investigation shortly after Blackburn issued his order for a new trial, in which the judge was scathing in his criticism of Brennan.

Clash of personalities
The complaint against Brennan can be seen as the result of the clash of personalities that occurred when the swaggering attorney and the hyper-decorous judge met in court.
Brennan stands 6’3”, with a commanding bass voice to match an imposing physical presence. He has strong opinions and doesn’t hesitate to share them.
That quality, combined with a seemingly innate distrust of authority and an irreverent, occasionally mocking, sense of humor, can make him seem aggressive or confrontational. Outside the courtroom, he makes liberal use of profanities, particularly when discussing the corruption he sees among “the leaders of the bar.”
An Indiana native, Brennan received his law degree from Stanford Law School in 1983 (he points out he was also accepted at other prestigious schools) and has practiced as a labor and employment lawyer for most of his career.
In solo practice for over a decade, he takes special pride in representing the little guy in suits against large organizations. This led him to take on the case of William Cadorna, a former Denver firefighter who brought an age discrimination suit against the City and County of Denver.
In 2006, the case went to trial in federal court before Judge Blackburn, a 1974 graduate of the University of Colorado School of Law. Blackburn was born in Lakewood, but lived much of his life in Las Animas, Colo. He has served as a U.S. district judge since 2002 and before that spent 14 years as a state district judge in Colorado’s 16th Judicial District.
Among lawyers who practice in Colorado’s federal trial court, Blackburn is known for his immense vocabulary. In his writing and speech, he not-infrequently uses words so unusual as to baffle all but the most learned lexicographer. In the courtroom, he maintains tight control over proceedings.
On the ratings Website robingroom.com — which calls itself the place “where judges are judged” — Blackburn scored a better numerical rating than most other judges in the district. The written comments on the site are a mixed-bag, perhaps indicating two sides to Blackburn’s judicial persona. Some of the anonymous posters praised his courtroom demeanor.
“He is fair, respectful, and kind to each and every person who steps foot into his courtroom,” wrote one person.
Others took him to task for his perceived imperiousness. One poster called him a “pedantic martinet with deep-seated issues and barely-concealed hostility toward plaintiffs.”

Wrestling control of the court
From day one of the eight-day Cadorna v. The City and County of Denver trial, Brennan and Blackburn seemed to get on each others’ nerves. Blackburn regularly reprimanded Brennan for continuing to question witnesses after opposing counsel made an objection and before the judge could rule on it.
Blackburn also took exception to the sarcastic editorial comments Brennan would interject while examining witnesses. Blackburn terminated Brennan’s cross-examination when the attorney remarked, “There is a straight answer” after drawing a response from an evasive witness.
Blackburn also claimed that Brennan was trying to bully him by interrupting and trying to get in the last word. After several warnings, he found Brennan in contempt of court after another interruption.
Despite the friction with the judge, Brennan won the case, and the jury agreed that his client was unjustly fired from the Denver Fire Department on false pretexts and denied reinstatement because he was over 50 years old. The $1.2 million in damages was one of the largest verdicts won in a suit against Denver — until Blackburn threw it out 15 months later.
In his order for a new trial for the Cadorna suit, Blackburn wrote that Brennan’s behavior was so egregious as to prejudice the jury and prevent a fair trial.
“Such disrespectful cockalorum, grandstanding, bombast, bullying, and hyperbole as Mr. Brennan exhibited throughout the trial are quite beyond my experience as a jurist, and, I fervently hope, will remain an aberration during the remainder of my time on the bench,” Blackburn said.
The judge theorized that Brennan intentionally flouted his authority in an effort to “to cast the court before the jury as bad tempered and nitpicking and himself as the victim of my supposed personal displeasure with him.”
Blackburn said that Brennan “successfully converted the courtroom into his bully pulpit,” wresting control away from the judge. The judge further claimed that the jury’s “verdict was the result of impermissible passion and prejudice inflamed by Mr. Brennan’s unacceptable trial tactics.”

‘Just trying to prove his point’
The issues raised in Blackburn’s order form the basis for OARC’s complaint against Brennan. In his response to the complaint, Brennan lambasted Blackburn’s new trial order.
“Judge Blackburn appears far more concerned with enforcing rules of etiquette than federal law,” Brennan wrote.
Beside the items mentioned in Blackburn’s order, the OARC complaint also mentioned other misconduct Brennan committed during the trial, such as calling an opposing lawyer a “little f—ing weasel” outside the courtroom.
In an interview with Law Week, and in his response to the complaint, Brennan readily admitted to doing this, but said it was irrelevant as it occurred outside the jury’s presence.
During its investigation, Office of Attorney Regulation Counsel representatives interviewed seven of the eight Cadorna jurors. According to notes taken by the investigator, none of them found Brennan to be abusive or disruptive during the trial. One juror reported that Brennan was “[n]ot trying to disrupt — just trying to prove his point.” When another juror was asked if Brennan was abusive or obstreperous, he answered, “Not at all!”
Curiously, the juror interviews are not being included in the regulation counsel’s formal complaint – and none of them have been asked to testify at the disciplinary hearing. Brennan, meanwhile, is forbidden by the federal court from subpoenaing them. The jury foreman did agree to give an official deposition for the OARC case in which she said Brennan was passionate and occasionally smart-alecky, but never intentionally disruptive.
Brennan is convinced that both Blackburn and regulation counsel went after him as a favor to the Denver city attorney’s office, initiating the disciplinary proceeding against him to serve as a warning to other lawyers who would take on the City and County of Denver.
“I think there are a whole lot of deep psychological levels at which [Blackburn] felt the need to bring me down,” Brennan said. “I think he enjoyed doing it, even though the real motivation was something much more concrete and involved some kind of back-scratching between a big Republican contributor and the city of Denver.”
For his part, Attorney Regulation Counsel John Gleason said such speculation isn’t worthy of response.
Brennan’s case is remarkable for a few reasons. It’s rare for a disciplinary case to go all the way to hearing. Since 2000, the regulation counsel has received an average of a little more than 4,400 complaints a year, which result in about 56 formal complaints. Of these, around 18 a year go to trial before the presiding disciplinary judge. Most end with a conditional admission from the attorney — essentially a plea bargain.
Brennan, who is representing himself in the two-day proceedings this week, is also notable for the colorful language he uses in assessing OARC’s case against him: In interviews he refers to the “pusillanimous Judge Blackburn;” calls the case against him an “unethical witch hunt;” makes references to Soviet show trials; and alludes to “the craven apparatchiks who control the legal establishment in Colorado.”
The disciplinary hearing is being held in Denver District Court. The severity of the sanctions against Brennan – or the possible dismissal of charges – will help show where Colorado draws the line between bad etiquette and misconduct.

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