Judge Ben McClelland discusses the election, judicial system
November 13, 2014
On Tuesday, Nov. 4, residents of Grand County voted not to retain County Judge Ben McClelland. As a result, his tenure as county judge will end on Jan. 13, 2015.
On Friday, Nov. 7, Judge McClelland stopped by the Sky-Hi News offices to discuss his views about the election, his time as a judge and his opinion on the state of the criminal justice system.
"First of all I want to make it perfectly clear that I feel it has been a privilege and an honor to serve the people of Grand County and the State of Colorado for the last seven years," he said at the start of the interview. "I am not bitter or upset. I believe in the citizens of Grand County and I have great respect for the office and for the judiciary."
He took his seat on the bench in Grand County in 2007. Immediately before that he worked as the municipal judge for Hot Sulphur Springs, though he said his case load in that position was fairly light. Prior to becoming a judge, McClelland worked in real estate law and probate and transactional law and had not previously worked in criminal law.
"For any judge going in there is a very steep learning curve," he said. "You have to learn criminal law if you are a civil attorney and vice versa."
McClelland explained county judges hear a broad variety of cases, running the gamut from small claims to jury trials.
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"Being a rural county court judge you get a wide spectrum of cases; and often all in one day."
Judge McClelland estimated he heard between 14,000 and 15,000 cases during his seven years on the Grand County bench. He averaged around 2,400 cases a year and heard a little over 2,000 cases in 2013.
"At some point I did see every one of those cases."
McClelland also presided over more than 200 jury trials.
When asked his opinion about the criminal justice system in America, he jokingly responded, "It beats second place."
"Here we have a right to a jury. Here probable cause has to be reviewed within 48 hours and a defendant must been seen and advised of their rights within 72 hours. The state has to prove beyond a reasonable doubt you are guilty. Our courts are open. If citizens have a concern, if they feel someone is getting railroaded, they can go and view the proceedings.
"It is not perfect, but at least there are eyes on it. If you get an adverse decision, if you think the judge made a wrong decision, you have a right to appeal to the next court.
"It [the criminal justice system] is made up of people so it cannot be perfect. We all make mistakes, but hopefully we can correct those mistakes. Judges I know in this state work very hard to be knowledgeable, fair and above board."
McClelland commented on the campaign opposing his retention as judge and why he did not mount his own campaign.
"The premise for the judiciary is it is not to be political. It goes back to the grade school concept of the 'three-legged stool.' The judiciary system is to interpret the laws and settle disputes. In other states they have elections and campaigns for judges. A lot of times that results in judges taking campaign contributions and then deciding cases.
"I believe every judge should be above campaigns. Judges should render decisions based on case law and the evidence in the case and not based on who the parties involved are. I chose not be involved in the process of a political campaign."
The campaign opposing retention of McClelland came in the wake of the Commission on Judicial Performance for the 14th Judicial District's recommendation earlier this year that voters not retain Judge McClelland in the Nov. election.
In their report they noted, "it was generally regarded that Judge McClelland is consistent in his rulings, works to learn the law, gives the parties a fair chance to present their cases, and is accommodating when it comes to scheduling."
They also stated, "commenters, including some [Judicial Review] Commissioners, described Judge McClelland as arrogant, defensive, impatient, and lacking appropriate judicial demeanor." The evaluation further states, "his lectures from the bench tend to be grandiose, offensive and off-putting. It was commented that Judge McClelland has a tendency, or at least the appearance, to rule based on his personal bias or opinion."
His Honor spoke to this strain of criticism.
"We have always been dealing with crime and punishment. There is no society yet that has figured out how. I didn't think it was my place just to punish people. I was hoping to change their behavior. I believe lectures were a tool in that, but if I made people feel badly, that was not my intention.
"The people involved in these cases are not bad people, these are bad situations. Just putting people in jail is not the solution because that just warehouses them; but there must be some level of punishment. You have to balance a little bit of punishment with treatment and other programs like useful public service. I apologize if people felt I was trying to hurt them. I did lecture people about the dangers of DUI, but it weighs on my conscience. I had people come in for DUI and later be killed in accidents."
He remembered a case in which the defendant was arrested for DUI. The defendant advised Judge McClelland of her desire to turn her life around, which prompted the judge to reduce bond for the individual. Immediately following the court appearance the defendant went to the liquor store, and shortly thereafter was involved in a fatal traffic accident.
"That one stuck with me," he said. "I had just seen her in court and a few hours later she was gone."
Not every case was so heartbreaking, though, and there were many bright spots.
"I remember one lady. She had gone through the system, had issues with alcohol and drugs. She had been in and out of the courts since before I started as a judge. But finally one day she 'got it.' I saw her a year or so after her last case. She was doing well and was thankful."
He also referenced cases dealing with children.
"There have been neglect cases where parents were able to be reunited with their children and become better parents. It makes you feel that you achieved something. That is the purpose of those things, to make those situations better."