RESPONDENT’S HEARING BRIEF STATEMENT OF FACTS
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Transcript of RESPONDENT’S HEARING BRIEF STATEMENT OF FACTS
8/7/2019 RESPONDENT’S HEARING BRIEF STATEMENT OF FACTS
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/i c94Y1v\
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
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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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