Interview Transcript with District Attorney George Brauchler.
March 24, 2017
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R.O. This Sunday you are being honored for your promotion to Colonel in the United States Army. Can you give our readers a brief summary of your military service and your legal career that has led you to being District Attorney of Arapahoe County?
G.B. I can. Brief is tough because as you know as an attorney, I like to talk quite a bit. In terms of the military piece, I wanted to go to Annapolis, and then to West Point, or to the Air Force Academy when I was in high school. I got nominated to all 3 of those academies, but if you don’t know, the nomination is part of it. That gets you in like the final 10 for each spot, and then you have to be appointed, and the academy typically does their rank, order, and structure for that. I got nominated to all 3 academies, but I wasn’t good enough to get into them. I got rejected by all three of them. In fact, right here on this wall as you come in, I have framed each one of the letters of rejection from each of the academies as a reminder to me that failure is a part of the game. So, at the same time, I was applying to these academies, my mom had recommended that I apply for a ROTC scholarship.
At the time, I was, of course, saying, “Mom, I’m not going to need that. I’m going to get into one of these academies because I’m pretty awesome”, and my mom told me I should do it anyway. So like a good boy, I listened to my mom, filled out the application, and I sent it in. Right after I got rejected from all of these academies, I got a letter in the mail saying “Congratulations, you’ve got an Army ROTC scholarship. You can take it wherever we have ROTC, and we’ll pay this amount”, so I took it up to CU-Boulder, the most military-friendly school in the region (that’s not true by the way, it’s sort of a joke), but it was a great experience, so I went up there, did well in ROTC school…went to Airborne School. I was in college. Did the Ranger Challenge Team. I was ultimately one of the battalion commanders for it, and then on my way to being commissioned for it and going into what I thought was going to be a career in armor officer…tanks…somebody talked me into trying law school and go on to become a JAG, and I didn’t have any interest in that. One thing led to another and I did the LSET…did OK. Got into law school, went into CU Boulder for law school, and ended up…instead of going active duty…armor. I ended up going reserve. JAG for my career, and I’ve had great jobs. Everything from Trial Counsel, which is what the military calls Prosecutors, to my job before the one I’m in now. I was a Regional Defense Counsel. I was in charge of
defense attorneys for about 7 states in the Reserves, in the middle part of the United States. And then in between, I’ve had other great gigs, whether it’s operational law, some administrative law, but I don’t think I’ve ever done claims, though. I’ve been mobilized twice since September 11th. I spent some time as an Adjunct Professor at the JAG school for the Army out at Charlottesville, and then most recently on active duty, I was the Chief of Military Justice for Fort Carson, and then deployed to Iraq to be the Chief of Military Justice for the 4ID. Right now I’ve got a pretty good gig down at NorthCom learning about all of the stuff that we do to interact between the Guard and the Reserve, and the active duty components for natural and manmade disaster stuff. All along the way, you just keep trying to hit all your educational marks and keep trying to perform well enough that you keep working your way up that pyramid. Look, frankly, nobody is more pleasantly surprised than I am that I’ve picked up O6. That’s kind of the end of the career for people that end up staying in that long. I don’t think anyone is dumb enough to make me a General, so this is probably the last hurrah.
Legally, I started off as a Prosecutor in Jefferson County where I grew up. I grew up in Lakewood. I actually use to cut class in law school to go try cases as an intern, which you can do under Colorado law in your third year and fell in love with it, and I did a bunch of stuff there for a long, long time. I tried some big cases. Got assigned some big cases, like Columbine. Prosecuted the guy that sold the Tech Uzi 910 to Klebold and Harris. Then I left…one for a mobilization, and two, when I came back I got to work a little bit on the Kobe Bryant case, and then I left in 2006 to go chase the almighty dollar. I went into civil practice…went into private practice. I started a firm with some buddies in Denver. I grew that and was doing really well despite the recession until about 2010 when I got called back to active duty, and then when I came back from Iraq, I decided to run for D.A., and we just beat the tar out of the other people that were running for it, and that’s how I ended up here.
R.O. In your service as District Attorney, you’ve already had some very high profile cases, one of them being James Holmes. Would you say he was successfully brought to justice since he did not receive the death penalty?
G.B. That’s such a good question, Rory. That’s a tough one for me because I to this day think he deserves death for what he did. I believe that but I also believe in our system, and our system isn’t set up to have one elected official say, “Here’s what the only right outcome is and now we’re going to go do it”. That what despotism is. That’s what a king does, and I’m no
king. We have this system that calls into check governmental power. Even though I thought death was appropriate, under our laws, and they are the toughest death penalty laws in the country, it was enough for one juror to say they would never ever vote for death in this case, and that was enough to end deliberation, so he ended up with 12 consecutive life sentences, and I think 3000 plus years in prison. I can’t remember the exact number anymore. I guess that’s justice because it went through our justice system, and I believe in that system, so yeah…I think that was justice. Yet, I also think he deserved to die for what he did.
R.O. Speaking of being brought to justice, in 2013 Governor John Hickenlooper indefinitely postponed the execution of Nathan Dunlap, of which you took great exception. Even though this happened 4 years ago when Governor Hickenlooper has finished his second term, can a new Governor repeal his decision and move forward with Dunlap’s execution?
G.B. That’s another great question, and the answer is yes. All that the Governor has done is issue an executive order that has no more power than he does. When he leaves office, that executive order can be changed by anyone else who’s Governor. I think, though, pragmatically speaking, if you asked me to be a betting man, I’d say there’s no way that Hickenlooper leaves office without commuting the sentence of Dunlap, permanently changing his sentence to life without parole. If he does that, there’s no way to breathe life back into that death penalty phase. If he leaves it as a reprieve, which is what he promised to do when he did it, yeah…any governor could put it back on track with the judges here.
R.O. Would you be that Governor?
G.B. Ha…that ain’t up to me. Hypothetically? Let’s say in a dream world where I’m elected Governor? Day one I would rescind that executive order and put him back on the path to death row…no doubt in my mind.
R.O. Connected to this subject, news sources reported that Hickenlooper’s decision had bothered you to the point that you were seriously considering a run for Governor in 2014. Governor Hickenlooper will finish his second and final term in 2019. Pundits are already throwing your name around as a possible Republican candidate to run for Governor. Is this something you have been considering, and if so, what would a Brauchler Governorship look like?
G.B. Well, I am seriously considering it, and you’re right. That last time after the Governor made that wimpy decision to grant a reprieve, which by the way is the exercise of constitutional power in our state constitution that hadn’t been used since 1895. So, this guy dug deep to try to figure out a way to not make a decision. So yes, I’d been seriously considering it. I was pretty upset at what he had done to the victims in that case, but at the end of the day, I needed to get this job done and I needed to get that trial done, and I think in part, when people voted for me, they thought this guy’s going to figure out a way to get justice on that case, so I felt I owed that to the community. This time around, I don’t have that same kind of thing, thankfully, hanging out there. I’m giving it serious thought. In terms of what a Brauchler Governorship would look like? Without getting into all of the policy wonkish details, I can tell you one thing that is for sure. I would put Colorado first and you would get a leader. Someone who can make decisions. Even the hard and unpopular decisions that we just have not seen in the last 6 plus years.
R.O. For the Arapahoe community, this next question touches on a sensitive subject. It’s been 3 years since the tragic death of Claire Davis. You were District Attorney at the time and there wasn’t much you could do since the situation resolved itself, leaving no one to prosecute. Since then, the school has added guards at the doors, but no metal detectors. Technically, a student could still bring a gun or a knife into the school. Do you feel that the school has done enough to protect its students from another incident happening like the one that occurred in 2014?
G.B. That’s a tough one for me because we don’t get involved in the security the schools provide. Short of, and I suppose it’s conceivable if a high school knew they had a particular vulnerability and they did nothing to address it and that vulnerability led to the death or injury of a child, could there be some arguable criminal liability there for some sort of child abuse or something? Maybe, but you know who I trust? I trust the Arapahoe County Sheriff. That’s Dave Walcher…one of the best sheriffs in this part of the country, and he’s phenomenal at what he does. Now he was also there with Grayson Robinson back on that December 13th, 2013…Friday, when it happened, and I know he had taken that case to heart, as have I, but he’s the one that has those school resource officers, SRO’s and other security people there. But he’s the one that’s supposed to check out places like that and make sure we’ve got the appropriate resources there to address that. It’s kind of hand in glove with the school district. Can’t make the school district provide metal detectors and more security, but we can certainly assess their vulnerabilities. I trust Dave quite a bit and I think if there was something that needed to be done that hadn’t been, you’d see Dave pushing for it hard, and if need be, I could get involved in that from a public standpoint, but there are no other schools in Arapahoe County that I’m aware of that have metal detectors, and that includes schools as far west as Littleton and as far east as Aurora. I just don’t know any that have that. That’s a big step, you know, to have metal detectors, but I think it’s definitely an upgrade from what they had. If you’ll recall, that part of the issue was that they had that unsecured side door, that the shooter was able to just go from his car to that side door and bypass the entire front entry process. Even when I go in there, they scan my driver’s license. He didn’t have to do any of that. He just slipped right in. I think they’ve remedied that.
R.O. Do you think metal detectors would be a big help?
G.B. I think a big help is tough. Metal detectors are a significant resource and logistics issue. Not just for the acquisition of them. I think for the money part, we could probably come up with it for that, but I want you to envision a situation where every single day, every single student has to go through the equivalent of DIA, with TSA guys there or something. That outlay could be considerable. The delay getting from drop off to classroom could be considerable. Now at the end of the day, if the argument is, if we have the chance of deterring just one thing like this, isn’t it worth it? I don’t know the answer to that. I don’t want to see my kids go to a school where I know they are vulnerable, but I also think that where in a free society where somebody wants to do somebody harm, there really isn’t a ton we can do about it. I don’t want to sound helpless about it. We should take smart, reasonable steps, but you can’t make a zero percent chance of bad things happening, and I just don’t know how much the metal detector systems work. Look…you are in our building here. We don’t even have metal detectors here. We put people in prison for long periods of time. People don’t like the D.A.’s office. We don’t even have metal detectors here. Hmmm…maybe we should have metal detectors, but we don’t.
R.O. In a CDC study done for the year 2013, 244 teens were killed in the United States due to distraction-affected car accidents. In Colorado, texting and driving is illegal, while talking on the phone while driving is illegal in many other states. The state of New Jersey is actually considering legislation making drinking, eating, or doing anything else except driving illegal while driving. Do you feel there needs to be stricter legislation regarding distracted driving here in Colorado, and if so, what changes would you like to see made?
G.B. Maybe it’s my own personal bias because of what I do when I drive, and I drive a lot. Saying you couldn’t throw a Big Mac down your gullet while you’re driving down the road? I guess maybe that could make things safer, but dang…I’d miss a lot of meals (laughter). I eat a lot in the car when I’m going around. Something you should be aware of though that might be part of this conversation. There is a bill right now being advanced through the State Senate and it may be on its way to the House that changes our texting and driving law…so here’s what happens. We have a texting and driving law that’s a $50.00 fine. It’s a nothing fine, but it says if you’re texting and driving, you’re wrong. So fast forward now, or go backwards to a year from yesterday. February 27, 2016. Brian and Jackie Lehner. It’s a Sunday back then and they’re on a nice motorcycle ride down near Franktownish kind of thing, down in Douglas County. A woman who is drunk…she’s been drunk from the night before and she had some cocaine metabolite in her system, but she was also texting. She drives out of her lane and she kills these two people. Got a lot of press. We ended up, and I was part of that case, I ended up arguing the sentencing and she ended up getting…I don’t know…20 years in prison. So, that spurred this movement amongst all these other, and when I say motorcycle, I’m not talking about Sons of Silence or Hells Angels. These are like regular people, like if your dad owned a motorcycle and was part of a motorcycle riding group? That’s what they are. So they had this motorcycle group, all Harley Davidson’s, and it spurred them to take some action and change the law. They said, “We want a stiffer penalty for texting and driving. We want a $300.00 fine”. Initially, it was $500.00. Well, guess what’s happened to that bill? It goes over to the Senate and some well-meaning legislators say, “We’ll give you a higher fine, but we’re only going to say it applies if you are careless when you’re texting”, thus, leaving open the possibility that you can text and drive safely under the law, so that thing is going to become law…actually decriminalizing texting and driving. Right now we already have the ability to charge someone with careless driving, regardless of what the reason is. If you’re eating and that eating caused you to be careless, we can already charge you with a crime. If you’re drinking, you’re on the phone, whatever…we can already charge you with a crime. All this bill is going to do, in my opinion, is make it harder to keep people from texting and driving, but that’s out there, so I hope that answers your question.
R.O. Recreational marijuana use has been legal in the state of Colorado since 2012 for anyone 21 and older, so this is a 3 part question. Do you believe that marijuana is now easier for teenagers to obtain?
R.O. Can you go into more detail about that? How?
G.B. Yes. I think what we’re seeing here is a move away from 2 things…the street swag, for lack of a better term, that used to be available on the streets, and there was certainly more of a stigma to there even being any marijuana around, so what you’d see is if somebody smelled like marijuana, or smoke was coming out of a car that smelled like marijuana, police could move in and take action. That created some sort of limited availability to juveniles that doesn’t exist anymore. What you see now are these “home grows” that exist, and it’s kind of a combination of what you get out of the medical marijuana, which provides this caregiver protection where you can grow 6 plants for you, 6 plants for your buddy, 6 plants for your buddy’s buddy…it’s kind of unlimited. All that produced grown marijuana? It’s not going to people that have glaucoma or pain from cancer treatments…none of that stuff. They are overproducing the amount that can be consumed, but they don’t throw it in the trash. They don’t throw it in their fireplace. It goes out the back door and gets sold. That’s called the “Gray Market” because it’s a legal product being sold in an illegal way. The “Gray Market” is huge and it exists everywhere, and because of the lack of stigma associated with public consumption of marijuana, plus the increased availability, I don’t have any doubts in my mind that marijuana is easier to obtain for juveniles. In terms of suspension at school, I don’t have the exact numbers, but anecdotally from the superintendents I’ve talked to, suspensions are up quite a bit for possession of marijuana. On the other hand, you listen to the Governor talk about some Denver General Hospital numbers or something, the trips to the ER for marijuana consumption are down. I don’t know if that’s true or not, but I do think it’s easier for juveniles to get their hands on weed now.
R.O. Do you believe that marijuana is a gateway drug to using other drugs or alcohol?
G.B. I do…I mean really, I do. Listen…I drank alcohol when I was younger, and when I was under age I drank alcohol, but I never let myself get to the point of taking an illegal drug. I’ve never smoked marijuana to this day. Never done an illegal drug. I hate taking pills that the doctors prescribe, but what I know about my peers are the ones that ever ended up doing, and I know this from being a prosecutor and seeing the pre-sentence investigation, no one goes from beer to methamphetamine or beer to heroin. I’ve never seen that. What I’ve seen from all these reports, and from friends of mine that I know that have ended up doing harder drugs, is in between there was marijuana. I think there is something psychological about having made the decision, back when it was illegal, to take an illegal drug for that euphoric effect. It just makes it easier to make the next decision…well, how much worse can cocaine be? Or how much worse can methamphetamine be? Or maybe I’ll try this or this LSD thing. I do think it’s a gateway drug.
R.O. Have marijuana-related car accidents increased in Arapahoe County since its legalization and what percentage involve teens?
G.B. Great question. I don’t know the numbers, the percentage that involves teens. I think the struggle for us and what I’ve tried to talk when I’ve gone around the country and talked to other states that are contemplating doing this, what’s I’ve tried to tell them is get your statistics now. Get your numbers now, because what we didn’t do before we legalized this recreationally, we didn’t do a good job of collecting information on how many DUI’s or motor vehicle accidents that were specifically related to marijuana versus something other than alcohol. It’s hard on them saying “This is what we were seeing in 2011 and this is what we are seeing now in 2016”. That’s tougher, and we’re still in the process of trying to figure out how to collect that data accurately. I think the incidents of DUI’s involving marijuana has gone up quite a bit. We know the number of trials have gone up quite a bit. What I think we are seeing though is a combination of alcohol and marijuana, probably more than we are seeing straight up marijuana. Here’s the other limitation when we see marijuana…not only do we not have a “per se” cutoff…do you know what I mean when I say that? When I say “per se”, what I mean is, like right now, if you have alcohol on board, and your blood or breath test out at a .08 DAC, no one cares if you are otherwise sober. No one cares if you can juggle and hop on one foot while you do it. You are presumed drunk by the law. You are “per se” DUI. There’s nothing like that for marijuana. We have something called a permissive inference, which is stupid legal terminology for…well…probably, maybe DUI, but it can be rebutted by other evidence, and that’s when you see all these rich people with the cottage industry experts come in and say you can’t tell anything from a marijuana test. It could have been in their system for a hundred years and all this other stuff. What we’re missing in DUI marijuana enforcement is roadside tests or some quick way to determine the concentration of THC in someone’s body at the time of driving or 2 hours thereafter. That’s the big difference between DUI and DUI marijuana. Other states that have gone down this road, even Washington, created a “per se” level. They said 5 nanograms, I think 5 nanograms of THC in your blood? We don’t care when it got there, how it got there, or the impact on you. You are going to be a DUI driver. Colorado didn’t do that, so we’re kind of at a disadvantage. I think the numbers are greater. Our ability to sort of capture and catalog them right there on the street like we do with alcohol is tougher, and our ability to successfully prosecute DUI drivers for marijuana are also more difficult. On the kid’s piece? I don’t know what to say about that. I don’t have numbers on that.
R.O. Do you have any advice legally for teens? Do you have any legal advice to give to teens that are in trouble with the law? What advice would you give them legally?
G.B. Here’s what I tell teenagers right now, and this is difficult because it’s not your fault, but your brain is built to think that the future is next Saturday and that’s it, right? The future is a lot farther than that, and what’s hard to convince teenagers of, especially in high school, is the short term self-satisfying decisions that get made right now sometimes have consequences 5 years down the road, 10 years down the road…maybe forever. That’s hard to convince. I was there. I was where you are man. It’s hard to see that far down the road. Everything seems like it’s a million years away, but it’s not. My advice to teens would be, if you ever find yourself in a situation, where even if it’s a group of friends or so called friends, and they are about to do something that is criminal or stuff that’s risky or unwise? Take a second. Take a second and take a deep breath and ask yourself, “What’s the worst thing that can happen here, and is that something I’m willing to live with the rest of my life”? If more teens took the opportunity to second guess the decision they’re about to make in situations like that, I think the better off they’d be. There, but for the grace of God go I. I made stupid decisions as a teen, but like I said, I never ended up smoking marijuana. I had a bunch of friends who did, and I never ended up doing any harder drugs. I never ended up driving drunk. All these things I never ended up doing, and it wasn’t just luck. The other thing is too, you have to surround yourself with good people. I remember I’ve told this story on the radio. I remember one time I was drinking under age. I think I must have been 18, and I was at a party with a bunch of friends. Probably intoxicated…definitely intoxicated, and as I’m walking out, some other guys are behind this truck over there, and they’re smoking marijuana, and they’re like, “Hey Dude…c’mon over here man. Just take a hit off of this.” I remember it was probably the greatest moment of weakness I’ve ever had…probably because I was drunk. I sat there and thought about it for a moment, and then I started walking over there, and you know what happened?My best friend who was with me grabs me and says, “Hey man, let’s go somewhere else…let’s just go somewhere else”, and we turned and walked somewhere else, and I remember thinking back, that’s what good friends will do for you. This guy’s a teacher now at Devlin. He’s still a great friend, but you know what I mean? The ability to make a good decision sometimes gets in the hands of being around good people, so I would encourage you to find people that are real friends. Not the people you just have fun with, but the people who give a crap about you. You know what I mean? The ones that don’t want to see you make a bad decision.Those are real friends. Those are the guys that hang on to you and you hang on to them, and in my case, 30 years later, we’re still buddies. That’s not really legal advice, but it’s how to avoid being in the legal system.
That was my interview with Colonel George Brauchler.