Montezuma County Judge Ian MacLaren on Tuesday faced criticism from both the prosecutor and defense lawyer for “inappropriate” and “unconstitutional” behavior after he described a school superintendent’s diversion agreement as a “slap on the wrist.”
Montezuma-Cortez RE-1 Superintendent Harry (Tom) Burris appeared in court to approve the diversion agreement. He was charged last year with a Class 2 misdemeanor for failing to report alleged sexual abuse of a student by a teacher. An investigation then found no abuse occurred.
In the diversion agreement, Burris is required to create a reporting safety plan for the district, and receive additional training on the mandatory reporting law. If he meets those requirements, the charges will be dismissed.
MacLaren accepted the agreement filed by the 22nd Judicial District Attorney’s Office on Feb. 6 and gave “the people the opportunity to explain why they feel a diversion agreement is appropriate in this case.”
“This is a fair outcome that we would offer to any defendant with no criminal history who is accused of a low-level misdemeanor crime, regardless of their status in the community,” Assistant District Attorney Justin Pierce said when it was filed.
In court on Tuesday, Pierce underscored the separation of powers within the system and equated the DA’s Office to the executive branch.
“The court can no more require the DA to give his reasons here than a court can require a Colorado governor to give his reasons for failing to grant a pardon,” Pierce said.
“The court is in noncompliance with the law,” he said, and “requesting for an explanation is unconstitutional.” He asked the court to “immediately stay the proceedings for six months,” or pause proceedings.
MacLaren said they were “under no obligation to offer an explanation.”
In August, six months after the the agreement’s start date of Feb. 6, the agreement will expire, and the court will convene to see whether Burris complied with it. From there, the court will decide whether to dismiss and seal the case.
MacLaren continued with his criticism of the agreement.
“Quite frankly, I’m not in a position where I can do anything about this diversion agreement,” MacLaren said. “Legally, I have to stay proceedings. But let me make a couple comments about that.”
MacLaren started by saying that if the agreement had been presented as a plea bargain and not as a diversion, “given the nature of this case and allegations, the court would absolutely not accept” a plea.
The allegations of the case were “very very concerning to the court,” he said.
“A juvenile student and a teacher were involved in a sexual relationship. It is alleged that a report was made to the RE-1 School Board, and it is alleged that Mr. Burris, the superintendent of the school district, failed to report those allegations to law enforcement,” he said.
The parents of the juvenile wrote a letter that “indicates the victim was adamantly opposed to a diversion agreement in this case.”
“The community puts incredible trust in educators,” and they have important “roles as mandatory reporters,” MacLaren said.
“Sitting here, I’m very disturbed that those reports weren’t made,” MacLaren said. “Looking at the diversion agreement, this looks to me to be a slap on the wrist.”
In the agreement, Burris is charged $83 in fees and is required to complete a mandated-reporter training. Under Colorado law, “mandatory reporting” requires certain professionals, including educators and social workers, to report any suspected child abuse or neglect.
“It’s not exactly clear what that training is, but my assumption is it’s the same training that’s given anyways to educators, to coaches,” he said.
“In essence, as I said, this looks to me like a slap on the wrist in response to a very significant allegation,” MacLaren said.
When MacLaren finished, Burris asked, “May we talk sometime?”
“No, Mr. Burris,” MacLaren said. “Thank you.”
Outside the court, Assistant DA Pierce questioned MacLaren’s experience and judgment.
“Ian has no experience as a prosecutor and he doesn’t understand the risk at trial,” he said, adding that his speech made it clear he should’ve recused himself from the case.
Burris’ defense attorney, David Illingworth, emailed The Journal later on with a comment.
“I am appalled and outraged by the judge's totally inappropriate comments at the hearing,” he wrote.
“Without hearing a single speck of evidence, the judge trampled all over the fundamental precept that you are always presumed innocent until proven otherwise by a jury of your peers,” Illingworth said.
“Going forward, I intend to pursue every legal option to ensure my client gets an impartial judge,” he said.
