By Gail Binkly
A year after an incident in downtown Cortez that led to charges of harassment against a half-dozen locals, the ramifications of the event are still being felt.
The behavior of the six on Jan. 2, 2021, led to a jury trial in Montezuma County Court in December 2021 – a trial that attracted an unusual amount of attention for something at that level.
Ultimately, Sherry Simmons of Lewis was acquitted on the single harassment charge that had been filed against her. She was the only one of the six people to take her case to court.
She and her supporters celebrated, saying that God had brought about the acquittal.
But after the trial, the 22nd Judicial District Attorney’s Office under DA Matthew Margeson took the unusual step of filing a notice of appeal in District Court over concerns about instructions given to the six-member jury. The notice was filed Dec. 17.
An appeal by the prosecution is not equivalent to the appeals that defenses often make when a person is convicted of a crime. Those appeals are aimed at overturning the judge’s or jury’s conviction of the defendant.
Prosecutors’ appeals will not result in a defendant who has been acquitted being retried on the same charge. The Fifth Amendment to the U.S. Constitution forbids what is called double jeopardy.
But prosecutors can ask a judge at a higher court level to tell the lower court that it committed errors in a particular case, according to Assistant District Attorney Will Furse.
“The concept of double jeopardy prevents overturning of an acquittal,” Furse told the Four Corners Free Press in a phone interview. “The point of this appeal is to remedy a functional error in the jury instructions.
“The most that would happen as a result is the District Court would admonish County Court for its erroneous instructions and maybe prevent a similar case from occurring.”
The case began on Jan. 2, 2021, a Saturday.
For many months Saturdays had been when members of a group called the Peace and Justice movement, carrying signs with progressive messages such as Black Lives Matter and This is Stolen Land, would march and stand on Cortez’s Main Street.
Members of another group called the Montezuma County Patriots – with very different political views – would drive along the street in vehicles bearing pro-Trump, Three Percent militia, Gadsden and Blue Lives Matter flags.
Both groups also carried American flags.
There were times when some Patriots would get out of their vehicles, stand on the sidewalks, and confront Peace and Justice marchers. Jan. 2 was one of those occasions.
Simmons, one of the organizers of the Patriots, was among 15 or more people who allegedly surrounded and followed five Peace and Justice demonstrators.
She and five others – Tiffany Ghere of Cortez; John Teitge Sr. of Cortez; Earl Broderick of Road N; John Anselmo of Road P.8; and Edward Bracklow of Cortez – were subsequently charged with third-degree harassment, a misdemeanor punishable by up to six months in jail and fines of $50 to $750.
The charges followed an investigation by the Cortez Police Department.
The other five entered diversion agreements, meaning they did not enter a guilty plea but admitted wrongdoing and had to pay a fee.
Simmons opted to plead not guilty and go to trial. She acted as her own representation, saying in court that she initially did hire an attorney but they had parted ways, so she “decided to put my trust in the Lord.”
The statute under which she was charged, CRS 18-9-111, says in part, “A person commits harassment if, with intent to harass, annoy, or alarm another person, he or she. . . Follows a person in or about a public place; . . .”
It lists a number of other offenses that are also considered harassment, but the act of following someone was the action judged key to this particular case.
In opening arguments on Dec. 9 in Montezuma County Court, Assistant District Attorney Jessica Salem said the case was not about freedom of speech or other rights, but about someone violating the statute regarding harassment.
“This isn’t about politics, not about First Amendment rights, gun rights, or Black Lives Matter,” Salem said.
The prosecution called three witnesses, the first of which was Raleigh Cato (formerly Marmorstein), a school psychologist. She testified that on Jan. 2 she was acting as a co-organizer for the Peace and Justice movement and was demonstrating with a small group at the corner of Main and Elm streets. She filmed the event, and her 34-minute video was shown in court.
The video first shows a lengthy period when the five marchers simply stand on the corner holding up signs and not much happens.
“The Patriots weren’t on the corner when we came,” Cato testified.
But at some point more than a dozen Patriots walk up to the five and surround them, heckling them and hurling insults. One man calls them “fucking idiots” and says “get down on your knees.” Other audible remarks include “All lives matter, bitch” and “anti-American bastards.” Some people also yell about the fact that the marchers are wearing masks.
Simmons, carrying a Three Percent militia flag, is present in the video. She later testified that she “heard harsh and unkind words to the BLM protesters” and that she “asked them [the counter-demonstrators] not to say the F word.”
Finally the peace marchers decided they had demonstrated for as long as they’d planned to, and began walking back to St. Barnabas Episcopal Church at 110 North St. That was where they convened for their demonstrations every week.
Some of the Patriots followed them down the street, continuing to make rude comments. They halted and stayed outside when the walkers went into the church courtyard.
Cato testified that she felt apprehensive when the Patriots began approaching her group, that her heart began racing and her palms sweating. In answer to questions from the prosecutor, she said that after the confrontation some in the Peace and Justice group felt shaken and shed tears, and some did not feel safe walking back to their cars.
Cato testified that when they began their march, the Peace and Justice demonstrators saw that the Patriots had already occupied the corner where the marchers usually went, at Main and Market streets, so they went to a different place. She said her group didn’t surround any of the others, did not flip anyone off, and were silent and non-confrontational.
On cross-examination, Simmons asked Cato whether she thought that one group of demonstrators could join another group.
“I don’t know about the legality,” Cato said.
Cato had testified that Simmons was in military garb and carrying a gun and a knife. On cross-examination, Simmons established that she often carries a gun.
“So the gun was not a shock to you?” she asked Cato.
“The entire encounter was a shock,” Cato replied.
Simmons asked whether Cato actually heard Simmons speak to her or any of the other Peace and Justice marchers, and Cato said no.
Cato said the peace marchers began their demonstrations in May 2020, after the death of George Floyd at the hands of police in Minneapolis. They first walked on Montezuma Avenue, but in July they changed to Main Street because it gave them more visibility and they had gained more marchers.
She said they had had previous encounters with the Patriots but that “January 2nd felt different.”
Also on cross-examination, there was a discussion about an electronic message Cato said she’d sent to Simmons on Jan. 3 asking Simmons if she were proud of her accomplishments the day before. “Your reply was long and mentioned God and your beliefs quite a bit,” Cato said in court.
Simmons is vocal about being a religious person. When making remarks at public meetings, she always begins with a prayer.
Simmons introduced the entire conversation into evidence and asked to read it aloud, but after a conversation at the bench, she did not. Instead, the jurors read a written copy of the message.
‘Emotions are high’
In it, Cato began by asking, “Are you proud of how yesterday went? Did you feel powerful surrounding 5 people?” She added with pointed sarcasm, “I’m sure Jesus would be proud.”
“Yes I believe he is.!” Simmons wrote back. “So sad that many have a misconstrued understanding of Jesus the Son of God Almighty.”
She continued with a long statement about her beliefs, including, “As the children of God we must take a stand.”
She said of the Patriots, “We hate no one. We first Love God and we love this nation which was founded under the principles of the Gospel of Jesus Christ. We stand for God we stand for truth which is God.”
Simmons also wrote, “You sent your marchers onto the street knowing the patriots were there.
“You or whomever is responsible for that. We are quite clear that we will never stand down.. we stand on truth we stand for this Nation which God Almighty founded. God is not mocked neither is his word.”
Cato then asked, “And y’all shouting profanity? Does god like that?”
Simmons answered, “No he doesn’t.
“Emotions are high and we are humans,” she continued in the electronic exchange. “I have been guilty of that as well that’s the beautiful thing about God’s grace to his believers. He corrects each of us in different ways. . . .”
In court, Simmons asked Cato whether their later conversations were friendly or not. Cato said they were not hostile, but added, “I don’t find it friendly to have prayer forced upon me.”
Simmons asked whether the electronic conversation explained her reasons for being on Main Street.
“You conveyed your personal beliefs, yes,” Cato said.
“Did you feel I was there to harass you?” Simmons asked.
“Yes,” Cato replied.
‘Plain as day’
At that point Simmons said she was in possession of another video taken the same day that had been sent to her confidentially. Salem objected to the introduction of that video, saying that the person who shot the video or someone who had knowledge of it needed to testify about its origins. The judge sustained that objection.
Simmons later asked Cato why, out of the 15 or so Patriots who followed the Peace and Justice marchers, only six were charged with harassment. Cato said she did not know.
However, the next witness, Steven King, answered that question. King, now a Colorado State Patrol trooper, was working for the Cortez Police Department in January 2021 and was assigned to investigate the Jan. 2 incident. He said that police were able to positively identify only six people among the group that followed the marchers, although they tried to identify all of them.
He said he interviewed six or seven Patriots, two people from the Peace and Justice group, and a couple other individuals during his investigation.
One man charged with harassment (Anselmo) was not actually part of the Patriot group, he noted.
King said the harassment charges were based on Cato’s video. “It showed plain as day the group following them from Main Street to the church,” a distance of three city blocks, he said. The decision to file charges was one he made, as the officer assigned to the case.
The third witness called by the prosecution was Cortez Mayor Mike Lavey, who said he was sitting in his truck, parked across the street from the activities, to watch the events.
He said he saw the Patriots approach and surround the Peace and Justice group. “They were up close and personal, in their face, yelling insults and threatening,” he said.
Concerned, he called Police Chief Vernon Knuckles, he testified.
When Lavey saw the Patriots following the other group, he got out of his vehicle and followed along himself, he said. Eventually he called dispatch, concerned about the possibility of someone being injured.
“Were you given a ticket for following?” Simmons asked Lavey on cross-examination.
Lavey said he was about half a block behind the other groups.
Simmons said Lavey walked up to her that day and asked, “Are you with them?” while pointing to the Patriots.
“Is it possible you asked me if I was with them because of the distance between me and them?” she asked.
Lavey said he did not recall. He said he doesn’t remember much of the conversation with Simmons because he was more focused on what was happening between the two groups.
Concern for the future?
Cato was called back to the stand and under questioning said in her opinion Simmons and another woman who co-organizes the Patriots had encouraged individuals to harass the Peace and Justice marchers.
She told Simmons, “That morning prior to the incident I witnessed you and many others standing where we usually stood.”
“Is it possible we were out there with compassion and very much concern for the future of this nation?” Simmons asked.
“That’s not my belief at all,” Cato replied.
Simmons presented her defense on Dec. 10. She did not call any witnesses other than herself. Since she couldn’t question herself, she sat on the stand and gave her account of the events.
She also played a recording of an interview between Officer King and Patty Coen, a woman who did sometimes march with the Peace and Justice demonstrators but was not part of the group of five on Jan. 2.
In the recording, Coen told King she was standing at the corner of Market and Main streets that day, thinking the Peace and Justice marchers would show up there, and that she was carrying wasp spray and bear spray for protection. She said she didn’t point the spray at Tiffany Ghere, as she was later accused of doing, but she did point it at a man named Dave Harrison who “was screaming obscenities at me.” He backed off when she pointed the can, she said on the recording.
“Those people are scary,” Coen said of the Patriots.
It wasn’t made clear in court what real relevance the recording had to the harassment case, as Simmons wasn’t mentioned.
In a piece in the Cortez Chronicles, a conservative online outlet, Kelly Moore-Chesney wrote, “Mrs. Simmons had played the video to show how the mood was being set, and how the sworn witness Raleigh Cato had denied any other protesters being out first.”
Simmons also showed in court the video she had previously tried to have entered into evidence but that the judge had rejected because of the prosecution’s objection that its source was unknown. Without explanation, the video was allowed to be shown as part of Simmons’ defense.
The video, which had no sound, showed Mayor Lavey talking to Simmons briefly as they walked past Pippo’s restaurant on Main Street. Simmons appeared to be well in the back of the procession that was following the Peace and Justice marchers.
On cross-examination, Salem asked who had taken the video. Simmons just said someone had sent it to her in confidence and that she could “testify to it being true and accurate.”
Simmons based her defense partly on the First Amendment to the U.S. Constitution, which provides for freedom of speech and freedom of assembly.
The harassment statute, after listing different types of harassment, ends with the statement, “This section is not intended to infringe upon any right guaranteed to any person by the first amendment to the United States constitution or to prevent the expression of any religious, political, or philosophical views.”
She said in her closing arguments that she was exercising her freedoms.
She also said she had not shown any intent to harass people.
Simmons admitted that there had been “some very unkind words expressed” to the Peace and Justice marchers, but compared herself to “someone in line at a bank when there’s a robbery,” saying she shouldn’t have been charged when not everyone was charged.
No extra rights
But in her closing arguments, Salem told the jury that the First Amendment “does not protect anyone from harassing anyone else,” adding, “Being a protester does not give you extra rights. . . to harass others.”
The question of whether following someone down the street with the intention of harassment could be considered an activity protected under the First Amendment led to long discussions at the bench (with the jury absent) prior to the closing arguments.
The prosecution raised concerns about statements included in the proposed jury instructions.
The instructions included typical things such as explanations of the jury’s duties, what information it could consider, and the process involved in deliberating and reaching a verdict.
But one instruction listing the elements of harassment included among them “that the defendant’s conduct was not legally authorized by the affirmative defense in Instruction 5.”
Instruction No. 5 said the statute “may not infringe upon any right guaranteed to any person by the first amendment to the United States constitution. . .”
Salem said that instruction was “irrelevant and distracting.”
“We do not believe it is the jury’s position to judge the constitutionality of the harassment statute,” she said.
Salem also disputed the validity of Instruction No. 6, which quoted the First Amendment in full.
Judge JenniLynn Lawrence said “the Constitution applies at all times” and “the facts of this case raise constitutional implications.”
In October 2021, Simmons had filed a motion to dismiss the case against her in which she had cited the language in the state statute saying “this section is not intended to infringe upon any right guaranteed. . . by the first amendment. . .”
The prosecution had countered that she was using “an affirmative defense,” which is basically saying that someone committed an illegal act but did so for a justifiable reason, as in self-defense.
The case against Simmons was not dismissed, but the prosecution filed another motion on Dec. 8 again asking the court not to allow the First Amendment to be used as a defense. The prosecution said acceptable affirmative defenses are specifically listed in the state statutes and “no affirmative defense under the First Amendment is listed.”
“The Court cannot simply create a defense at the request of a defendant – even a pro se one,” the prosecution wrote. (A pro se defendant is representing himself or herself.)
Lawrence denied that motion.
Verbal vs. physical
Lawrence did change some language in the jury instructions, but didn’t remove the parts about the First Amendment, nor an instruction that referred to the “right peaceably to assemble” listed under the Colorado constitution.
The jury’s deliberations took scarcely any longer than it had taken to read the jury instructions to them. The members returned in less than a half-hour with their finding that Simmons was not guilty.
Furse told the Free Press, “I have not seen jury instructions like this” and said he cannot recall another case in which the DA’s office in this district has filed an appeal based on jury instructions.
Furse noted that the harassment statute lists a number of different behaviors that constitute harassment. Some of them are verbal – such as directing language at someone in a manner intended to threaten bodily injury, or repeatedly insulting or taunting someone in a manner likely to provoke a violent or disorderly response.
Other listed behaviors that constitute harassment are physical, such as striking or shoving someone or following them.
Furse said the statement about not infringing upon First Amendment rights was intended to apply specifically to the verbal types of harassment.
There is a considerable amount of case law regarding what constitutes free speech vs. pure harassment, he said. The arguments aren’t about whether the physical actions listed as possible harassment constitute free speech, he said. “That’s where the trial court didn’t analyze information properly.”
Many of the arguments Simmons made in her own defense “were related to harassing speech,” Furse said, “but that’s not what we had in this case.”
After the jurors had announced their verdict, Lawrence thanked them for their service and told them they were now free to discuss the case with others.
She assured them that there would be consequences for anyone who verbally hassled them about their verdict.