COUNTY COURT, LARIMER (FT COLLINS)

COUNTY, COLORADO

Court Address:
201 LaPorte Avenue, Suite 100, Ft. Collins, CO 80521

THE PEOPLE OF THE STATE OF COLORADO Case Number: 2017M965

v.
Division: 4D
MICHAELLA LYNN SURAT
_____________________________________________
Courtroom:
Counsel for Defendant:

Name: David A. Lane

Firm: Killmer, Lane & Newman, LLP
Address: 1543 Champa St., Ste 400
Denver, CO 80202
Phone #: (303) 571-1000
Attorney #: 16422

DEFENDANT’S RESPONSE TO SANCTIONS MOTION

PLEASE TAKE NOTICE that the Defendant, Michaella Surat, by and through counsel
hereby files the following RESPONSE TO PEOPLE’S MOTION FOR SANCTIONS:

1. The People have alleged that undersigned counsel, in forwarding the body-cam video to
the media, has violated Crim.P. Rule 16(III)(g).

2. As is true of all rules, they are subject to “constitutional limitations.” As will be fully
explained infra, undersigned counsel had a First Amendment right to forward the video in
question and to make any and all statements made to the media.

3. At the outset, counsel did not forward “discovery” in violation of Rule 16. Counsel
forwarded a piece of evidence, put into the public domain by Mitch Murray, the First
Assistant District Attorney trying this misdemeanor case, when he admitted it into
evidence at the January trial. He sought no Order of protection and the video was played
in a public courtroom and received into evidence.

4. Colo. RPC 3.6(b)(2) permits any lawyer to comment on or distribute “information

contained in a public record.” Mr. Murray put the body-cam into the public record and
he now complains that the media has a copy of the video he put into the public domain.

5. Undersigned counsel has an absolute right under the First Amendment to the United
States Constitution to comment on matters of public concern. This is especially true in

1
 matters of corruption involving the criminal justice system. This case illustrates that the
District Attorney in this district will go to any lengths to protect violent police officers
from being held accountable for their behavior. This prosecution is a corrupt
prosecution.

6. In Gentile v. State Bar of Nev., 501 U.S. 1030, 1034 (1991) a criminal defense attorney
was disciplined by the State Bar of Nevada, who reprimanded petitioner for his assertion,
supported by a brief sketch of his client's defense, that the State sought the indictment
and conviction of an innocent man as a "scapegoat" and had not "been honest enough to
indict the people who did it; the police department, crooked cops."

7. The Court in Gentile noted that commenting upon governmental misconduct involves
"speech which has traditionally been recognized as lying at the core of the First
Amendment." Butterworth v. Smith, 494 U.S. 624, 632, 108 L. Ed. 2d 572, 110 S. Ct.
1376 (1990).”” Id.

8. The Court went on to remind us that:

"It would be difficult to single out any aspect of government of higher concern
and importance to the people than the manner in which criminal trials are
conducted." Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 575 (1980).
Public vigilance serves us well, for "the knowledge that every criminal trial is
subject to contemporaneous review in the forum of public opinion is an effective
restraint on possible abuse of judicial power. . .. Without publicity, all other
checks are insufficient: in comparison of publicity, all other checks are of small
account." In re Oliver, 333 U.S. 257, 270-271 (1948). As we said in Bridges v.
California, 314 U.S. 252 (1941), limits upon public comment about pending cases
are “likely to fall not only at a crucial time but upon the most important topics of
discussion. . .."No suggestion can be found in the Constitution that the freedom
there guaranteed for speech and the press bears an inverse ratio to the timeliness
and importance of the ideas seeking expression." Id., at 268-269.

Id. at 1035.

9. Undersigned counsel’s comments to the press clearly indicate that, in counsel’s opinion,
this is a corrupt prosecution being run by the Office of the District Attorney in an effort
to protect a brutal police officer from being held accountable for his crime of felony
assault perpetrated on Ms. Surat.

Public awareness and criticism have even greater importance where, as here, they
concern allegations of police corruption, see Nebraska Press Assn. v. Stuart, 427
U.S. 539, 606 (1976) (Brennan, J., concurring in judgment) ("Commentary on the
fact that there is strong evidence implicating a government official in criminal
activity goes to the very core of matters of public concern"), or where, as is also
the present circumstance, the criticism questions the judgment of an elected public
prosecutor.

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 Id. at 1035-1036.

10. The Court in Gentile noted the fact that the police had been releasing information
regarding the case, just as has repeatedly occurred in this case. In this case, the Ft.
Collins police department has busied itself by repeatedly patting itself on the back and
exonerating Officer Klamser from any wrong doing. Indeed, the police have repeatedly
crowed that if the public could only see the body cam video, they would know that
Klamser was totally justified in brutalizing the 110-pound Michealla Surat.1

11. Due to the publicity and widespread dissemination of the viral video showing Officer
Klamser’s felony assault of Ms. Surat, this case has been playing out in the court of
public opinion since its inception. Shortly after the incident, Officer Klamser was placed
on administrative leave, and Chief Hutto announced on the Fort Collins Police Services
Facebook page that Klamser’s “change in job status is not disciplinary in nature.”2 The
Fort Collins Police Department ultimately exonerated Officer Klamser and issued a
public statement that Officer Klamser’s “behavior did not violate any City or Agency
rule, regulation, policy, procedure, or training directive.”3 Indeed, the police repeatedly
promised to release the body-cam video “once the investigation is complete.” The
investigation was completed over one year ago, and the police have never released the
footage. The reason for this is simple: the body-cam video shows precisely why
Klamser should be facing felony assault charges and that the prosecution of Ms. Surat is
corrupt. “The Supreme Court has recognized that in circumstances such as those
surrounding this case, the function of defense counsel includes representation "in the
court of public opinion." [citation omitted], United States v. McVeigh, 955 F. Supp. 1281,
1282 (D. Colo. 1997).
12. Undersigned counsel had not only a right under the First Amendment to the United States
Constitution and the analogous provision of the Colorado Constitution to release the
video and to make the statements made in this case, Colo. RPC 3.6 (c) specifically states:

Notwithstanding paragraph (a) and Rule 3.8(f), a lawyer may make a statement
that a reasonable lawyer would believe is required to protect a client from the
substantial undue prejudicial effect of recent publicity not initiated by the lawyer
or the lawyer's client. A statement made pursuant to this paragraph shall be
limited to such information as is necessary to mitigate the recent adverse
publicity.

1
https://www.facebook.com/fortcollinspoliceservices/posts/1085551908217112 (accessed
5/13/18); see also https://www.facebook.com/fortcollinspoliceservices/posts/1089052031200433
(accessed 5/13/18).
2
https://www.facebook.com/fortcollinspoliceservices/posts/1089052031200433 (accessed
5/14/18)
3
https://www.fcgov.com/news/index.php?id=6825 (accessed 5/14/18); see also
https://www.denverpost.com/2017/06/01/randy-klasmer-fort-collins-viral-video/ (accessed
5/14/18).

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 13. As was the case in Gentile where the prosecutors made the same allegations against
defense counsel that are raised against undersigned counsel, the Court ruled that “[f]ar
from an admission that he sought to "materially prejudice an adjudicative proceeding,"
petitioner sought only to stop a wave of publicity he perceived as prejudicing potential
jurors against his client and injuring his client's reputation in the community. Id. at 1043.

14. Perhaps the most important lesson the Court teaches in Gentile is that:

An attorney's duties do not begin inside the courtroom door. He or she cannot
ignore the practical implications of a legal proceeding for the client. Just as an
attorney may recommend a plea bargain or civil settlement to avoid the adverse
consequences of a possible loss after trial, so too an attorney may take reasonable
steps to defend a client's reputation and reduce the adverse consequences of
indictment, especially in the face of a prosecution deemed unjust or
commenced with improper motives. A defense attorney may pursue lawful
strategies to obtain dismissal of an indictment or reduction of charges, including
an attempt to demonstrate in the court of public opinion that the client does not
deserve to be tried.

15. The Court also noted that it is “[o]nly the occasional case [which] presents a danger of
prejudice from pretrial publicity. Empirical research suggests that in the few instances
when jurors have been exposed to extensive and prejudicial publicity, they are able to
disregard it and base their verdict upon the evidence presented in court.” Id. at 154-55.

16. The prosecutor’s efforts to silence defense counsel and prevent the public from learning
the truth about this case are reprehensible and are consistent with an ever-increasing
movement toward authoritarianism in this country. The prosecutor is seeking to sanction
defense counsel in an effort to intimidate defense counsel and to send a message to the
rest of the criminal defense bar that if you make the police or prosecutors in Ft. Collins
look bad, you will face sanctions up to and including a threat to your freedom, your
money or your license to practice law.

17. This Court should not countenance tactics such as these. The motion for sanctions should
be denied.

WHEREFORE it is respectfully requested that this motion be denied.

Respectfully submitted, this the 21st day of May, 2018.

CERTIFICATE OF SERVICE KILLMER, LANE & NEWMAN, LLP

I certify that on this 21st day of _/s/ David A. Lane

May, 2018, I served the foregoing David A. Lane
document by delivering the same KILLMER, LANE & NEWMAN, LLP
to the District Attorney and
Andrew Bertrand via E-Filing the
same through the Colorado State 4
Court Filing System, ICCES.

/s/ Jamie Akard

1543 Champa Street, Suite 400
Denver, Colorado 80202
(303) 571-1000
(303) 571-1001
dlane@kln-law.com
ATTORNEY FOR DEFENDANT