People v. Pautler, No. 00PDJ016.

• Decision Date: 02 April 2001
• Docket Number: No. 00PDJ016.
• Citation: 35 P.3d 571
• Parties: The PEOPLE of the State of Colorado, Complainant, v. Mark C. PAUTLER, Respondent.
• Court: Colorado Supreme Court

35 P.3d 571

The PEOPLE of the State of Colorado, Complainant, v. Mark C. PAUTLER, Respondent.

No. 00PDJ016.

Office of the Presiding Disciplinary Judge of the Supreme Court of Colorado.

April 2, 2001.

Opinion by Presiding Disciplinary Judge ROGER L. KEITHLEY and

Hearing Board members, EDWIN S. KAHN and LINDA S. KATO, both members of the bar.

OPINION AND ORDER IMPOSING SANCTIONS

SANCTION IMPOSED: ATTORNEY SUSPENDED FOR THREE MONTHS, PERIOD OF SUSPENSION STAYED DURING A PROBATIONARY PERIOD OF TWELVE MONTHS

The Complaint in this disciplinary action was filed February 24, 2000. The respondent, Mark C. Pautler, ("Pautler"), filed an Answer on March 23, 2000. On June 9, 2000, the People of the State of Colorado (the "People") filed a Motion for Summary Judgment with supporting documentation pursuant to C.R.C.P. 56. Pautler timely filed a Response to the motion with supporting documentation. The Presiding Disciplinary Judge ("PDJ") issued an Order on July 5, 2000 granting the Motion for Summary Judgment in part and denying it in part. The Order held that the undisputed facts established Pautler had engaged in conduct involving deceit and thereby violated The Colorado Rules of Professional Conduct ("Colo.RPC") 8.4(c) in connection with the events of July 8, 1998 surrounding the surrender of William "Cody" Neal ("Neal") to authorities in Jefferson County, Colorado, and granted summary judgment on the violation of Colo. RPC 8.4(c). The Order also held that there were insufficient facts set forth in the pleadings and supporting documentation to establish, before trial, a violation of Colo. RPC 4.3 and denied summary judgment as to that charge.¹ The trial of this matter occurred March 7, 8 and 9, 2001 before the PDJ and Hearing Board members, Edwin S. Kahn and Linda S. Kato, both members of the bar. The People were represented by Nancy L. Cohen, Deputy Attorney Regulation Counsel. Pautler was represented by William A. Tuthill, III, Assistant County Attorney for Jefferson County, Colorado. Prior to trial, the parties entered into numerous factual stipulations set forth in the Trial Management Order. At the commencement of trial the parties additionally stipulated that Neal was an unrepresented person at the time of the events in question in this case. The People called Mark C. Pautler, Jefferson County Public Defender James M. Aber and Daniel J. Sears as witnesses for the complainant. Pautler called Cheryl Zimmerman (a/k/a Cheryl Moore), Jefferson County District Attorney David Thomas, Denver District Attorney William Ritter, former Jefferson County Sheriff Ronald Beckman, Hon. Kim Goldberger, Douglas Moore, and Denver Manager of Safety Ari Zavaras as witnesses for the defense. Pautler also testified on his own behalf. The People's exhibits 1 through 6 and Pautler's exhibits A, B, C, D, F, G, H, I, J, R and T were admitted into evidence. Exhibits E and Q were offered and not admitted. Exhibit S was identified but not offered. Two complaining witnesses, Jeffrey S. Pagliuca and James M. Aber, made statements regarding the appropriate sanction pursuant to C.R.C.P. 251.18(a).

The PDJ and Hearing Board assessed the credibility of the witnesses, reviewed the exhibits admitted into evidence, considered argument of the parties, and made the following findings of fact which were established by clear and convincing evidence.

I. FINDINGS OF FACT

Mark C. Pautler has taken and subscribed the oath of admission, was admitted to the bar of the Supreme Court of Colorado on May 19, 1975, and is registered on the official records of this court, registration number 06438. Pautler is subject to the jurisdiction of this court pursuant to C.R.C.P. 251.1(b).

On July 8, 1998, law enforcement authorities in Jefferson County, Colorado learned that an apartment in the southwest portion of the county contained three dead bodies. Three women, Rebecca Holberton, Candace Walters and Angela Fite, had been savagely killed with repeated blows from a wood-splitting maul. Not long thereafter, authorities learned that a fourth woman, JDY, had been lured to the crime scene prior to the killing of Fite, tied spread-eagled to eye bolts which Neal had installed in the floor, stripped and forced to watch Neal repeatedly cleave Fite's head and neck with the wood-splitting maul. After Neal killed Fite, he taunted JDY, placed a gun to her head and raped her. The next morning, Neal returned JDY to her apartment. Shortly thereafter, another woman arrived at the apartment and was taken hostage by Neal. Neal kept the two women at gunpoint in the apartment for thirty hours while he dictated the details of his crime spree into a recording machine. Neal allowed the two women to call a friend to come over to comfort them. When the friend arrived, he too was taken hostage. On the morning of July 8, 1998, Neal left the apartment, leaving his three hostages with explicit instructions to contact law enforcement and provide them with a pager number where he could be contacted.

At midday on July 8, at the request of a citizen, the Jefferson County Sheriff's Department conducted a welfare check at the apartment where the three murder victims were found. During the welfare check, the deputy sheriff located the bodies, alerted the Jefferson County District Attorney's Office and Pautler was assigned to the crime scene. Upon his arrival shortly after noon, Pautler peered into the apartment from the backyard, observed one exposed body taped to a chair and two wrapped objects which, he was informed, contained two additional female bodies. While waiting at the crime scene for the necessary search warrant, Pautler and a sheriff's officer decided to go to a nearby 7-Eleven to purchase soda drinks for the sheriff's department employees on the scene. Shortly after leaving the 7-Eleven, Pautler and the sheriff's officer were alerted that the three hostages Neal had released had contacted law enforcement and had information regarding the three murder victims. Pautler immediately went to the apartment of JDY where the three released hostages were being interviewed by law enforcement personnel.

Later that day, Deputy Sheriff Cheryl Zimmerman established phone contact with Neal from the apartment of JDY. Neal was using a cellular phone and, despite extensive efforts, law enforcement was unable to accurately determine Neal's location. Deputy Sheriff Zimmerman engaged in lengthy negotiations with Neal over a three and one-half hour period.

Deputy Sheriff Doug Moore and Pautler were present in the apartment during Deputy Sheriff Zimmerman's phone conversation with Neal. Deputy Sheriff Moore held a handheld dictation unit to an extension phone and recorded the phone call. Pautler observed the situation, read notes made by Deputy Sheriff Zimmerman, passed suggestions to her and, with another phone, kept others informed of events as they transpired.

During the course of the phone negotiations, Neal confessed to the three homicides, informed Deputy Sheriff Zimmerman he was armed, made statements which could be interpreted as threats to kill others, and made rambling comments about his work with the Central Intelligence Agency, the Federal Bureau of Investigation and the White House. Neal also made statements which could be interpreted as desiring to end the situation without harm to anyone else. Both Deputy Sheriff Zimmerman and Pautler perceived that Neal posed a significant risk of harm to members of the public.

At some point in the phone negotiations that night, Neal informed Deputy Sheriff Zimmerman that he wanted to surrender, but he wanted to talk to a lawyer first. Neal was not represented by counsel at the time of his request. Neal asked Deputy Sheriff Zimmerman to contact a lawyer named Daniel Plattner. Pautler was aware of Neal's desire to surrender and his request to talk to Plattner. Although Pautler thought Plattner had left the practice of law, he found his office phone number and, around midnight, tried to call that number. A recording informed Pautler that the number was no longer in service. Pautler made no further attempts to contact Plattner. When informed that Plattner's phone was no longer in service, Neal asked to speak with a public defender before he surrendered. At Pautler's suggestion, Deputy Sheriff Zimmerman informed Neal that they were contacting the public defender. Notwithstanding Deputy Sheriff Zimmerman's representation to Neal, Pautler had no intention of contacting a public defender or any other defense lawyer. It was Pautler's belief at the time that any defense lawyer would advise Neal not to talk with law enforcement about his activities and Pautler wanted Neal to continue his dialogue. Pautler discussed with the sheriff's deputies whether another law enforcement officer could pose as a public defender. Deputy Sheriff Zimmerman perceived Neal as "bright" and feared that he might realize that the person he was speaking to was not a lawyer.

Pautler contacted his superior, District Attorney David Thomas, briefly summarized events and told Thomas that he planned to talk with Neal pretending to be a defense attorney to facilitate the surrender. Thomas expressed some reservation about the plan but deferred to Pautler's judgment because he was at the scene. Both Thomas and Pautler considered the situation to be very dangerous, believed the public to be at risk and thought extraordinary measures were required. Thomas told Pautler to do what he thought was necessary.

Pautler indicated to Deputy Sheriff Zimmerman that he would pose as a public defender but told her that she should use a different name to introduce him in order to conceal his true identity. Deputy Sheriff Zimmerman informed Neal that a public defender by the name of "Mark Palmer" had arrived, pretended to brief "Palmer" on the situation — including Neal's wish to speak to a lawyer prior to surrendering — and handed the phone to Pautler.

Pautler spoke with Neal by phone on two separate...