Colorado lawyers forgiving of Kato Crews’ botched answer | Subscriber Content

After US Magistrate Judge S. Kato Crews drew a blank at his confirmation hearing when asked to describe the holding of a major US Supreme Court decision, the embarrassing lapse quickly generated condemnation online.

“ANOTHER Biden judicial nominee flunks basic legal quiz,” JCN tweetedan advocacy group for conservative judicial nominees.

But in Colorado, the reaction to Crews incorrectly describing a pillar of criminal case law was far more sympathetic.

“I don’t see it as a major concern in practice as there are all kinds of criminal law issues that he will have to get up to speed on as they come at him,” said Jason R. Dunn, Colorado’s top federal prosecutor during the Trump administration. “That’s just the nature of the job and is one of the reasons district court judges have law clerks.”

“This doesn’t bother me,” added David Lane, a civil rights lawyer whose firm, like Dunn’s, litigates in Colorado’s US District Court.

Crews, 48 ​​this year, has been a federal magistrate judge since 2018 and is President Joe Biden’s nominee to fill a vacancy in the seven-member trial court. Magistrate judges tend to focus on preliminary and administrative matters in cases, but they are empowered to handle many of the same tasks as the life-tenured district judges.

When Crews appeared before the US Senate Judiciary Committee on Wednesday, US Mon. John Kennedy, R-La., asked him how he would analyze a “Brady motion.”

“In my 4.5 years on the bench, I don’t believe I had the occasion to address a Brady motion,” Crews responded.

“Do you know what a Brady motion is?” Kennedy continued. Crews responded it was “not coming to mind at the moment.”

“Do you recall the US Supreme Court case Brady v. Maryland?” Kennedy pressed. “What did it hold?”

Crews finally guessed that Brady “involved something regarding the Second Amendment.”

The 1963 Brady decision held that the government violates the right to due process when it holds evidence favorable to criminal defendants that are relevant to guilt or punishment. A Brady motion seeks to compel that exchange of evidence.

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“Brady is both routine (in every criminal case the prosecution would be obligated to disclose exculpatory evidence, and the defense would be entitled to it) and rare, to the extent that because the prosecution knows they have to disclose it, it would be kind of a big deal if they fail to,” wrote Lynn C. Hartfield, a former federal public defender who practices in Denver, in an email.

Crews’ inability to describe the case echoed other instances in which Kennedy caught judicial nominees off guard with basic legal queries. In January, a Biden nominee could not immediately recall what Articles II or V of the US Constitution govern (the executive branch and amendments, respectively). In 2017, a Donald Trump nominee was unable to define common procedural terms at his hearing, and ended up withdrawing.

“Some of these nominees that have been forced in the last two years have no business being anywhere near a federal bench — they don’t have any business being anywhere near a park bench,” Kennedy told NBC News earlier this year.

Crews’ inability to correctly recall Brady raised two concerns: As a magistrate judge, is it something he should have experience with? And as a future district judge, is that something he should already know about?

To the first question, there is no dispute that in Colorado, magistrate judges handle certain parts of criminal cases. But they do not decide Brady moves.

“It’s a function of the fact that it is the custom of the district judges on our court to keep (that is, not refer) motions to magistrate judges in criminal felony cases,” said US Magistrate Judge Kristen L. Mix. “Brady motions are almost always filed in these cases. We never see them.”

Crews has signed off on discovery orders, relating to the production of evidence, in which he confirmed it was the government’s duty “to disclose material evidence which is favorable to the defendant as required by Brady v. Maryland.” Such directives, however, are not “Brady orders” and are prepared by the parties to a case.

As for whether Crews, as a nominee to a lifetime judicial appointment, should be able to describe what the Brady decision means, some who saw his answer in the committee labeled Crews “ignorant“or even speculated he was nominated due to his race and not his resume. Attorneys in Colorado, however, did not view Crews’ botched response as disqualifying.

“Like many new district judges who are experienced lawyers but did not practice criminal law prior to the bench, Judge Crews would quickly learn these issues in the district judge role,” said John Walsh, the former US attorney under the Obama administration.

“The issue is whether a potential judge, once confronted with a novel issue, is able to understand it and apply it in a fair and just manner,” said Lane, the civil rights attorney. “Crews obviously have that ability.”

Crews did not respond to a request for comment sent to his chambers. A regional spokesperson for the White House did not reply to an email asking about the committee exchange.

After the hearing, an aid to US Sen. Michael Bennet, who recommended Crews to the White House along with US Sen. John Hickenlooper, said Crews “demonstrated that his judicial experience is extensive and that he is fully qualified to serve in the US District Court.”

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