respondent’s hearing brief statement of facts

8/7/2019 RESPONDENT’S HEARING BRIEF STATEMENT OF FACTS

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SUPREME COURT. STATE OF COLORADO

ORIG INA L PROCEEDING IN DISCIPLINE BEFORE iTHE PRESIDING DISCIPLINARY JUDGE

1560 Broadway. Ste. 675

Denve r, CO 80202

Complainant:

THE PEOPLE OF THE STATE OF COLORADO

Respondent:

PETER B. ALBANI.Court Use Only

Respondent’s Counsel

Leonard Berenato and David Worstell Case No.1626 Washington Street 10- PDJ -095Denver, CO 80203

Phone: (303) 831-1669

Fax: (303) 832-4515

e-mail: Iberenatogwestofflce.net

e-mail: davidworsteIlçgwestofflce.net

RESPONDENT’S 1-IEARING BRIEF STATEMENT OF FACTS



RESPONDENT’S HEARING BRIEF

Statement of Facts

Respondent believes that the following facts will be heard at his disciplinary

trial in this matter. Respondent is an attorney licensed to practice law in the State

of Colorado. I-fe has been licensed since October 30, 1984 or for approximately 26

years. He has no history of disciplinary action taken against him.

In 2004, the Jefferson County District Attorney charged Patricia Ragusa

with a massive white collar embezzlement case, titled The People of the State of

Colorado vs. Patricia Ragusa, Case No. 04 CR 3/0/. She was originally charged

with 72 counts of felony theft and computer crime and one count of attempted theft

and attempted computer crime. Ms. Ragusa stole almost 1.2 million dollars from

her employer. Th e District Attorney subsequently brought additional counts. In the

end Ms. Ragusa faced 51 theft related counts and 51 computer crime related

counts. The original judge assigned to this case James Zimmerman. Shortly berore

trial , Judge Zimmerman retired and was replaced by Judge Tammy Russell.

Respondent Peter B. Albani and Robert Grossman represented Ms. Ragusa.

Th e evidence against Ms. Ragusa was very strong. Throughout the proceeding the

District Attorneys (Thomas Jackson and Michelle Cantin-Weaver) made various

plea offers to defense counsel. These offers were relayed to the defendant. The

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defendant repeatedly to ld h er counsel that she hoped to obtain a plea bargain.

Eventually, a plea offer w as made that defense counsel advised Ms. Ragusa to

accept. The plea called for Ms. Ragusa to admit guilt on six class three felonies,

pay restitution including I million dollars in restitution up front, and take a

stipulated prison sentence of between 4 to 12 years. Ms. Ragusa contemplated this

plea otTer until the day before trial. She repeatedly told her counsel that he r family

would provide her with the I million dollars restitution, even when the family’ had

told counsel they would not pay the restitution.

The case proceeded toju’y trial on November 7— 16. 2005. Respondent and

his co-counsel represented Ms. Ragusa at trial. At the conclusion of the jury trial,

Ms Ragusa was convicted of al[ counts. She fired he r attorneys before he r

sentencing.

At sentencing Ms. Ragusa received 15 years. Ms. Ragusa was represented by the

Colorado Public Defender’s Office on appeal. The case was reversed on appeal by

the Court of Appeals. Ms. Ragusa subsequent]y accepted a plea offer and received

an 8 year sentence.

The first in-camera hearing took place on the first morning of trial prior to

the jury voir dire. Thi s hearing was approximately two minutes long. Mr. Albani

inhiated this in-camera bearing in open court by stating that there is on e mote

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matter that we would like all four counsel to approach on. The attorneys then went

into chambers without the client following them. Once beck in chambers, Mr.

Albani apparently stated that he bclieved it was appropriate to make a brief

Seliulteis record

A Schzilreis record is made when an attorney believes that his client or

another witness will commit perjury. See People v. Schultei s, 638 P.2d 8 (Cob.

1981). In a Schulteis situation, the attorney goes back into chambers by

himself/herself and makes a brief sealed record ou t of the presence of the judge,

the client, opposing counsel, and anyone else (except perhaps a court reporter).

This record can be made with a tape recorder or a court reporter.

Respondent simply misspoke and never intended to make such a Scimiteis

record. He never asked to be alone with a court reporter no r asked for a tape

recorder. He never made any mention of perjury or False testimony. Indeed,

Respondent has no recollection whatsoever of ever using the word ‘Schulteis

At his disciplinary trial. Respondent believes that his co-counsel Robert

Grossman will testis’ that he has no recollection of Mr Albani ever mentioning

thk term. Likewise, the two prosecutors Tom Jackson and Michelle Cantin

Weaver will testis’ that they have recol[ection of Mr. Albani using this term. These

three witnesses will testify that clearly Mr. Albani was no t making a “Schulteis

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record”. At no point does the judge say that she questions why Mr. Albani used

the term “Schulteis ‘. At no point does she challenge Mr. Albani that lie has li ed to

the Court by using the word “Schulteis “. Mr. Albani’s record obviously had

nothing to do with a Schzdteis situation.

The transcript reveals in part that Mr. Albani immediately stated that the

district attorney’s office made a number of plea offers to Ms. Ragusa that he and

co-counsel advised her to ta ke. He discussed the County Court’s advisement that

Ms. Ragusa faced in the vicinity of 1200 to 1300 years. He discussed a plea offer

that would have netted the client a range of between 4 to 12 years in prison. 1-le

advised that lie and co-counsel had met with the client repeatedly and were

adamant that we felt she should take that deal and that they believed it was folly

for her not to do so .

Rob Grossman advised the Court that Ms. Ragusa has been advised in

complete and in full on multiple occasions and that her f riends have been made

aware of this and her family has been made aware of this. T he Court thanked

counsel for stating this. Mr. Albani la te r indicated that Ms. Ragusa had caused

problems fo r h im that morning. She w as upset that he r defense counsel didn’t hate

the prosecutors enough.

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At the conclusion of the first in-camera hearing, Mr. Albani s ta ted tha t we

will not advise he r of this should she ask us what th is was abouL W e don’t this it

was appropriate. It would only throw a monkey wrench thinking tha t we’re against

her. The Court never answered Mr. Alban i. The Court never advised Mr. Albani

that his thinking was inappropriate. Respondent never told Ms. Ragusa what took

place in chambers.

In hindsight, Mr. Albani wishes he had done so. At the tim e however, he

believed this was the prudent and b est course of action. Immediately before the

first in-camera hearing, Ms. Ragusa had complained to counsel about a number of

matters involving counse l a nd Mr. Albani believed he was duty bound to report

these matters to the Court.

The second in-ca,ne;v hearing took p la ce during the third day of trial on

November 9, 2005. This second record is all of about five minutes long. During a

break in the proceedings, the client had verbally attacked Respondent. This was a

most pressing verbal attack. Respondent in the 21 years he had practiced law had

never seen nor had a client verbally attack him in this fashion. Respondent was

upset and visibly shaken by what had transpired. Respondent recalls tha t anyone

present in the Courtroom and hallway could not help bu t hear the tirade presented

by the client. Respondent believed he had a duty of candor to advise the Cour t as to

what took p lace , but was unsure just how to proceed.

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Following the tirade, Mr. Albani recollects that Tom Jackson advised

Respondent he was going to ask to go into chambers and make an objection that

the client’s mother, who was named as a witness, had violated the sequestration

order in place during the trial. Mr. Albani recalls that Tom Jackson advised him

that he should come back and make a record as to what had transpired. Respondent

Albani in no way blames Mr. Jackson Fo r making this record. Respondent believed

he had a duty of candor to report what had t aken place to the Court.

The district attorney’s sequestration order violation mattered little to

Respondent. Respondent and his co-counsel had decided not to call the mother as a

witness. Respondent was obviously very upset at the circumstances. He states

quite honestly that he cares little about the sequestration order issue bu t rode the

coattails of that issue to make a record on what was really bothering him.

Respondent states that the sequestration issue was not a pretext. There was an

actual violation of the sequestration that needed to be addressed by the Court.

When Torn Jackson asked tbr the parties to go back into chambers,

Respondent saw this as a fortunate opportunity to go back into chambers and

advise the court of the client’s tirade. In chambers, Respondent in his anger and

frustration, made some comments he very much regrets, including that he would

not the client fire him. (Obviously, had the client wanted to fire h im , he would

have le t her. In hind s ight he wishes lie had thscussed the i ssue with his client and

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Tom Jackson may testit3i tha t give n the passage of tim e he remem bers little

of the matter. 1-le do es not recall the discussion had with defense counsel prior to

the se con d in-camera hearing.

In September, 2009, the Colorado Court of Appeals ovenurned Ms.

Ragusa’s case because of the matters that took pl ace in chambers during these in-

camera hearings. Following the appeal process, whe n the case came bac k to the

Jefferson County District Court, Ms. Ragusa was represented by the Colorado

Public Defender. The Publie Defender wou]d file a motion to recuse Judge Russell.

When she recused herself following the remand of the ca se, Judge Russell

stated for the first tim e that defense counsel had lied to her. Mr. Albani did not lie

to Judge Russell. Judge Russell claimed that both tim es counsel came ba ck to see

me it was under a pre-text. The first inciden t was clearly no t a pre-text. Durin g the

se cond incident, Mr. Albani spoke open ly an d honestly that he was us ing the

sequestration order as a platform to ra ise another issue. None of the othe r

participants that niornng remotely believe that Respondent lied to the Cou rt. Non e

of the other participants believed he acted dishonestly or deceptively. Judge

Ru ssell thither claims that both tim es she asked that the client be present and that

the defens e counsel said no . There is nothing in the record to support this

statement. These statements should be contrasted with her statements on the record

that she appreciated the candor shown by defense counse l.

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During these last five years, Mr. Albani recalls that on numerous occasions,

Judge Russell has exchanged pleasantries with Mr. Aibani when they have run into

each other in Jefferson County. Additionally, a couple of years ago, she presided

over the motions hearing of a case he helped defend. Never once did she suggest or

hint that she believed Mr. Albani lied to her. At a retirement party for judges

Olson and Demlow held two years ago, Judge Russell introduced Mr. Albani to

then Judge M. J. Menendez telling her Mr. Albani was a fine attorney.

At the hearing, the tribunal will hear from a defense lawyer named M. Cohn

Bresee. Fo r the past five years Mr. Albani and M r. Bresee have co-counseled on

many high stakes and run-of-the-mill crimina] cases . The two have a high rate of

success. Mr. Bresee has watched Mr. Albani struggle with him to decide numerous

difficult ethical issues that have arisen. Mr. Bresee will testify that Mr. Albani

strives to be ethical and honest in all issues. Mr. Bresee is aware of the two in-

camera proceedings and the pending disciplinary action. He recognizes that at most

Mr. A]bani made a simple mistake.

At the hearing, the tribunal will bear from defense counsel Michael

Morrissey Jr. Mr. Morrissey will testify that he has known and worked with Mr.

Albani for almost 20 years. They have handled a number of difficult cases. Mr.

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Morrissey will testi that Mr. Alban i s tr ives to be ethical and honest in the

practice of law. Mr. Morrissey is aware of the two in-camera proceedings and the

pending disciplinary action. He recognizes that at most Mr. Albani made a simple

mistake.

Mr. Albani will testify that he did no t lie to the Court and did not act with

dishonesty or deceit. He will testify that he feels remorseffil for his actions . He

wishes he had acted differently. He wishes he had disclosed matters to Ms. Ragusa.

1-le wishes he had recognized the developing conflict of interest and not taken it

upon himself to finish ou t the trial. He wishes lie had discussed these matters with

Ms. Ragusa and let her fire him if she wanted to. I-fe cringes when he r eads some

of the statements made in these records, especially the statement that he would no t

let Ms. Ragusa fire him. He was clearly ang ry and did no t mean this. 1-le knows

t ha t Ms. Ragusa can fire him at any time and for any reason . M r. Albani believes

he acted negligently. 1-le has completed approximately 15 hours of CLE cr ed it

related to ethics. Beyond that, he has undertaken upwards of 100 hours of rigorous

study and review on ethics. Mr. Albani will testii’ that this matter was never about

keeping money that should have been returned. These records were never made

solely to benefit Ivfr. Albani.

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Respectfiully submitted:

Attorneys for Respondent Peter Albani

CertHicu le of Service

I certify that on th e dat e shown, I served a true and com plete copy of RESPONDENT PETER B.ALB A N I’S H EAR IN G BR IEF STATEMENT OF FACTS by either mail ing sam e with full postage prepaid, faxing same , c-mailing sam e, or Iiand -dclivering same to opposing counsel as follows:

Elizabeth Espino zu Kr uppa

A da m Espinoz a

Attorney Regulation Counsel

1560 Broadway, Ste. 1800

Denve r, CO 80202

Fax: (303) 893-5302

Da te: March 25, 2011

orstell

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respondent’s hearing brief statement of facts

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