Mis-applied law, immunity claims and Samuel Clemens’ nom de plume: Here’s what might come up at Tina Peters’ appeal hearing Wednesday

Colorado’s appellate court is set to consider the next chapter in Tina Peters’ legal case as attorneys ready arguments over sentencing concerns, decisions made in district court and, potentially, pardon law. 

The Colorado Court of Appeals will hear the former Mesa County Clerk’s case Wednesday afternoon. Peters’ attorneys will argue that the 21st Judicial District Court that convicted Peters got her case wrong. This comes after a litany of attempts to free the 70-year-old Peters, which include a federal habeas corpus petition, a request to have her moved to federal custody and what many Colorado politicians consider to be a pressure campaign against the state to free Peters. 

Peters’ appeal has drawn national attention after President Donald Trump raised the issue on social media several times. Many state and national news outlets have requested media access to cover the proceedings. 

Peters’ legal team has made a number of arguments as to why she was unfairly convicted. In their notice of appeal, attorneys for Peters listed more than a dozen issues they expect to raise. Here are some of the considerations that could come up during oral arguments. 

Legal interpretations of the pardon power? 

Most recently, Peters’ attorneys requested and received a pardon from President Donald Trump, which nearly every legal expert says would not apply to state-level convictions like the ones Peters received. Peters’ legal team filed a motion with the court of appeals asking the court to determine if it still has jurisdiction over the case and thus far has not received a response. Peter Ticktin, an attorney for Peters, said he’s ready to make the argument should the court ask to hear it. 

“I don't know what's going to happen. It's kind of a mystery … for all I know, they're going to enter an order today determining that motion,” Ticktin told CPR News. “Or we're going to walk in in the morning and they're going to say, we want to hear about that too.”

Attorneys for the state of Colorado noted in court filings that they are similarly ready to discuss the pardon issue, should it come up, having designated an attorney for that specific issue. Both sides have filed briefs related to the question of whether the federal pardon power can extend to state crimes. Ticktin has argued that the clause “against the United States” should be read to mean the collection of states as well as the nation, rather than as just a stand in for federal law. 

In its response to the pardon question, the state says Peters’ team is incorrect in their new understanding of the power. 

“In sum, the case law, the text of the pardon clause, the structure of the Constitution and the historical evidence all point to the unmistakable conclusion that the President’s pardon power is limited to federal offenses,” attorneys for the state said in a motion filed with the court. 

Immunity as a federal official?

What is almost certain to come up in Wednesday’s hearing is arguments from Peters team that the district court erred by limiting what defenses Peters could make at trial. 

Throughout the 2024 trial, Peters' team regularly attempted to broaden the scope of the trial, drawing objections from prosecutors. In their notice of appeal, Peters’ attorneys said they intend to argue that Peters should have been allowed to discuss what her intention was when she allowed an unauthorized person access to county voting equipment as well as a host of other issues that were excluded from the jury’s consideration. 

“Clerk Peters’ statutory affirmative defense is that she committed the acts alleged in the lawful execution of a public duty,” the court filing says. 

That public duty, Ticktin said, was an effort to preserve election records that Peters believes were going to be destroyed by the Colorado Secretary of State’s office. No proof has ever been offered that any such action was going to occur.

From a legal standpoint, Ticktin said the actions of the district court violated the supremacy clause. Essentially, Peters argues she was acting as a federal official in an effort to preserve election records and therefore cannot be punished by the state. 

The state of Colorado says this claim is flatly incorrect because, while Peter’s office may have handled elections that included federal votes, she was a county official.

“The trial court properly ruled that the Supremacy Clause did not bar the state’s prosecution because Peters is not a federal officer. Moreover, her criminal conduct was not ‘reasonable and necessary’ to comply with federal law,” attorneys for the Colorado Attorney General’s Office wrote in their reply motion. 

Choosing among bad options

Peters attorneys also say the district court erred during the jury instruction process. Jury instruction is when the judge informs jurors about the specifics of the laws that they are to consider when reaching a verdict. Peters’ attorneys tried to make the case that she should have been allowed to make a “Choice of Evils” defense — an argument that Peters committed an unlawful act only because not doing so would have led to a worse outcome. 

Prosecutors argued throughout trial that the case at hand was not about preserving election data or the results of the 2020 presidential election. The state has argued in briefs to the court of appeals that this reasoning was sound and holds up to further legal scrutiny.

“Because her reasons for committing the offenses were not a legal defense, the evidence would have created a substantial risk of confusing the issues, misleading the jury, and unfairly prejudicing the prosecution. This risk was magnified by the controversial nature of the evidence, which would have resulted in a mini-trial about alleged election fraud,” the state argues. 

‘Mark Twain,’ professional surfer

Most of Peters’ case dealt with misleading state and county officials about the identity of a man whom she allowed to access county voting equipment. 

Her efforts to influence a public servant are what led to the majority of her convictions in 2024. That involved hiding the identity of a man named Conan Hayes, a retired professional surfer who has surfaced in election conspiracy cases in Colorado as well as post-election audits in Arizona. 

Peters got Hayes security clearance to access county voting equipment under a different name. Ticktin argues that’s not illegal. 

“Samuel Clemens was allowed to call himself Mark Twain, not just for his pen name for writing books, but that's the name he assumed altogether, you're allowed to have fake names,” Ticktin said. “There's nothing illegal about that.” 

The secrecy around Hayes was needed, Ticktin said, because he had been “instrumental against cartels” in work to break up human trafficking rings. 

Discussion of Hayes was limited at Peters’ criminal trial. Among the issues that were ruled inadmissible were claims Peters made that Hayes was either an FBI informant or that she believed him to be an FBI informant. The 21st Judicial District Attorney’s Office never found any evidence that Hayes had worked with federal law enforcement. 

A ‘harsh’ sentence

Discussion of Peters’ prison sentence has been rampant following recent statements from Gov. Jared Polis that he thought it was harsh. 

The governor has still not weighed in on if he would grant any form of clemency for Peters, only that he would handle her request the same as any other. 

Ticktin said they will bring up the sentencing issue again to the court of appeals. They argue Peters’ prison term was unduly harsh in a way that violated her First Amendment Rights. 

At sentencing, 21st Judicial District Judge Matthew Barrett called Peters a “charlatan” and pointed to her record of dishonesty. Ticktin argues this amounts to a tougher sentence because of what she was saying about Colorado’s voting systems. The state, however, argues that judges have broad leeway in sentencing and that nothing was raised improperly. 

“The trial court’s sentencing considerations were proper, and Ms. Peters’ rights were not violated. The court properly considered Peters’ dishonesty as it related to her conduct, her allocution, and other sentencing considerations,” the state argued in a brief filed with the court.