Donna J. Schmalberger
Trial Court · Denver · Denver
Meets Standards(No Opinion)2 cycles on record
Evaluation history
- 2016 retention cycleTrial Court · Denver · DenverMeets Standards(No Opinion)Retention Year: 2016 Recommendation: Meets Performance Standard Reports: 2016 Retention Survey Report (PDF) 2013 Interim Survey Report (PDF) 2011 Interim Survey Report (PDF) Need an accessible PDF Document Version? Please click on the link below and email our staff Contact Us The Second Judicial District Commission on Judicial Performance, on a vote of 10-0, unanimously recommends that Judge Donna J. Schmalberger BE RETAINED. Judge Schmalberger became a District Court Judge for the Denver Juvenile Court in October, 2007, having previously served an Assistant County Attorney in Arapahoe County for 5 years and in private practice for 14 years as a Guardian ad Litem and respondent attorney. Judge Schmalberger graduated magna cum laude from Lafayette College in 1973 and from the University of Colorado School of Law in 1982. Judge Schmalberger has attended a number of seminars, conferences and continuing legal education programs in order to remain current in both legal and non-legal developments in juvenile law. Judge Schmalberger is the Lead Judge for the Denver Best Practice Court Team, an organization of stakeholders that oversees improvement projects within the juvenile court. She has spoken to a wide variety of community groups, provides legal training to Court Appointed Special Advocates, and lectured to the local colleges and universities. She is a member and past president of the Thompson G. Marsh Inn of Court. The Commission reviewed the results of surveys of lawyers, non-lawyers and appellate judges who were familiar with Judge Schmalberger’s work, interviewed the judge, and reviewed her self-evaluation and three transcripts of her oral rulings. In addition, selected members of the Commission observed Judge Schmalberger in court. Of the attorneys completing surveys, 87% recommend retention, 0% recommended against retention, and 12% expressed no opinion. Of non-attorneys completing the survey, 37% recommend retention, 37% recommend against retention, and 25% express no opinion. These percentages do not total 100% due to rounding. Given the small number of persons completing surveys (9 attorneys and 8 non-attorneys); the Commission urges caution in drawing inferences as to Judge Schmalberger’s performance based solely on the survey results. The results of the surveys of lawyers showed Judge Schmalberger’ overall scores equal or exceed those of the average of all district court judges standing for retention in the areas of communication, demeanor and diligence but below the average in the areas of case management and application and knowledge of the law. A concern of both lawyer and non-lawyer survey respondents is the length of time Judge Schmalberger spends on legal matters in her courtroom. The written comments reveal that Judge Schmalberger is regarded as patient, caring and, as one attorney respondent described her “always kind and respectful to all of the parties.” Judge Schmalberger’s oral rulings adequately explain the issues presented and the basis for her rulings. Commission members observed these positive traits as well as support for the concerns expressed during their observations of Judge Schmalberger. In her interview, Judge Schmalberger acknowledged case management and completing her work in a timely manner as a challenge and is focused on improving on delegation and setting priorities.
- 2010 retention cycleTrial Court · Denver · DenverMeets Standards(Retain)VotersRetained· 68.3% yes86,046 yes · 39,887 no50% needed to retainRetention Year: 2010 Recommendation: Retain Reports: 2010 Retention Survey Report 2009 Interim Survey Report Need an accessible PDF Document version? Please click on the link below and email our staff Contact Us The Second Judicial District Commission on Judicial Performance unanimously recommends that Judge Donna J. Schmalberger BE RETAINED. Judge Schmalberger became a District Court Judge for the Denver Juvenile Court in October, 2007, having previously served an Assistant County Attorney in Arapahoe County for 5 years and in private practice for 14 years as a Guardian ad Litem and respondent attorney. Judge Schmalberger graduated magna cum laude from Lafayette College in 1973 and from the University of Colorado Fleming Law School in 1982. Judge Schmalberger has spoken to a wide variety of community groups, provided CASA training, and worked with her law clerk to administer the court’s summer intern program. She also serves as Co-Chair of the Rothenberg/Schmalberger group at the Marsh Inns of the Court. The Commission reviewed the results of surveys of lawyers, non-lawyers and appellate judges who are familiar with Judge Schmalberger’s work, observed the judge in her courtroom and interviewed her. In addition, Commissioners reviewed three written opinions. In her two and one-half years on the Juvenile Court, Judge Schmalberger has made case management a priority and has very few cases that remain open beyond the performance benchmark. The number of attorneys who returned surveys was relatively small (22); those who did respond were divided in their commentary of Judge Schmalberger. Favorable comments included that Judge Schmalberger is consistently respectful to all parties, maintains a polite, respectful atmosphere and is in control of her courtroom, is unbiased, and has good knowledge of case law. Unfavorable comments included significant criticism about her scheduling cases, identifying and analyzing relevant facts, basing decisions on evidence and arguments, treating parties with respect, conducting her court in a neutral manner, and consistently applying rules and the law. Judge Schmalberger was rated below average in these areas compared to all other district court judges. Her scores did improve from 2008 to 2009 still leaving her with an average score below average. While non-attorneys rated her slightly below the state average for district judges, the non-attorney commentary was generally positive, including comments that Judge Schmalberger was respectful, calm, compassionate, impartial, and patient. Unfavorable commentary from non-attorneys included the need to improve the efficiency of her docket, the number of hearings, and looking at the whole picture in making decisions. The Commission believes that with additional experience and a performance improvement plan, Judge Schmalberger can improve in the below average areas listed above. Of all attorneys surveyed about retention, 59% recommended to retain, 28% recommended not to retain, and 14% had no opinion. Excluding those who had no opinion, 69% recommended to retain and 31% not to retain. Of all non-attorneys surveyed, 85% recommended to retain, 10% not to retain, and 6% no opinion. Excluding those who had no opinion, 90% recommended to retain and 10% not to retain. (These percentages may not total 100% due to rounding.)
Surveys & reports
- 2016 cycle
- 2015 Interim Survey Report(PDF on OJPE)
Read full interim survey textexpand
## Page 1 State of Colorado Logo COMMISSION ON JUDICIAL PERFORMANCE TThhee HHoonnoorraabbllee DDoonnnnaa JJ.. SScchhmmaallbbeerrggeerr 2013 Judicial Performance Interim Report 2nd Judicial District ## Page 2 May 28, 2013 The Honorable Donna J. Schmalberger Lindsey-Flanigan Courthouse 520 West Colfax, Room 125 Denver, CO 80204 Dear Judge Schmalberger: I am pleased to make available to you the attached copy of your 2013 Judicial Performance Interim Survey Report. This report includes the survey results from two important stakeholder groups: 1) attorneys who have had cases in your court or who are knowledgeable about your judicial performance; and 2) non-attorneys who have observed your performance in court or who have knowledge of your performance as a judge. In addition to this introduction, the report is divided into five main sections: 1. A brief summary of the results of the attorney and non-attorney surveys. 2. The numerical results of the survey of attorneys in both tabular and graphical form. In addition to the numerical results, this section also contains comments attorneys made about your judicial performance. In some instances the comments have been redacted to eliminate respondent identifying information. A copy of the attorney questionnaire is included in the final section of this report. 3. The numerical results of the survey of non-attorneys in both tabular and graphical form. In addition to the numerical results, this section also contains comments these respondents made on the subject of your judicial performance. In few instances the comments have been redacted to eliminate respondent identifying information. A copy of the non-attorney questionnaire is included in the final section of this report. 4. The fourth section of the report discusses the methodology of the surveys. 5. The final section provides copies of the questions or questionnaires that were used for each survey. ## Page 3 Hon. Donna J. Schmalberger May 28, 2013 Page 2 If you have any questions about the methodology and how the survey was conducted, please feel free to contact me at 505-821-5454 or by email at sanderoff@rpinc.com (please put the words “Judicial Performance” in the subject line), and for any other questions you might have about the survey please call the Executive Director of the Office of Judicial Performance Evaluation, Kent Wagner, at 303-928-7779. Best regards, Brian Sanderoff President 5140 SAN FRANCISCO RD NE, ALBUQUERQUE, NM 87109 WWW.RPINC.COM 505-821-5454 ## Page 4 Summary of Results Respondents rated judges on various questions using an A to F scale, in which the grades were then converted to numerical scores: A=4, B=3, C=2, D=1 and F=0. An average score of 4.0 is the highest possible score and a 0.0 is the lowest possible score. On average, Judge Donna J. Schmalberger received an overall combined average grade of 3.24 in the 2013 Judicial Performance Interim Survey Report. This is calculated by adding the overall average grade received from attorney respondents, 2.88, to the overall average grade received from non-attorney respondents, 3.59, divided by two. The average combined grade for all district judges that are receiving an interim evaluation in 2013 is 3.47 (not shown below). Judge Schmalberger Average Grades (All Years) Combined Attorney Non-attorney Overall Grade 3.24 2.88 3.59 Sample Size - 77 83 Table 1 The results presented in this report are based on data collected in 2007, 2008, 2009, 2010 and 2012. (See Methodology section for description of sampling process.) Provisional judges will not have samples for the years prior to their appointment. Table 2 shows Judge Schmalberger’s overall average grades for each year in which survey results are available. Judge Schmalberger Average Grades by Year Combined Attorney Non-Attorney Average Average Sample Average Sample Year Score Score Size Score Size 2007 1.67 1 2008 2.72 2.03 4 3.40 22 2009 3.34 2.97 21 3.71 45 2010 3.04 2.57 26 3.51 5 2012 3.52 3.27 26 3.76 10 Overall 3.24 2.88 77 3.59 83 Table 2 1 ## Page 5 Comparison of Jurors vs. Non-Jurors Among Non-Attorney Population Among the non-attorney population, jurors tend to grade judges much higher than non- jurors. The juror overall average grade for all district judges that are receiving an interim evaluation in 2013 is 3.87, while the overall average grade given by non-jurors is 3.30. The effect of this is that judges with a higher percentage of jurors in their sample tend to have higher average grades in the non-attorney survey than those judges with a small percentage of jurors. The number of jurors in a judge’s sample is, of course, closely related to the number of jury trials the judge presides over. The table below shows Judge Schmalberger’s non-attorney results broken out by jurors and non-jurors. It also shows the overall average juror and non-juror grades for all district judges that are receiving an interim evaluation in 2013 (see two columns on far right). Judge Schmalberger Average Grades for Jurors vs. Non-Jurors (All Years) All District Judge Schmalberger Judges* Jurors Non-Jurors Average Sample Average Sample Juror Non-Juror Score Size % Score Size % Average Average 3.88 29 35% 3.44 54 65% 3.87 3.30 Table 3 * Includes only the District judges evaluated during this interim cycle. 2 ## Page 6 SSuurrvveeyy ooff AAtoorrnneeyyss RReeggaarrddiinngg JJuuddggee DDoonaa JJ.. SScchhmmaallbbeerrggeerr ((SSaammppllee SSiizzee 7)) ## Page 7 Survey of Attorneys Regarding District Judges Average (0.0 to 4.0 scale) Judge Donna J. Schmalberger Donna J. All District Sample Size = 77 A B C D Fail DK/NA Schmalberger Judges* 1. Case Management: 1a. Promptly issuing a decision on the case after trial. 43% 27% 14% 1% 0% 14% 3.30 3.39 1b. Maintaining appropriate control over proceedings. 31% 35% 18% 8% 8% 0% 2.74 3.40 1c. Promptly ruling on pre-trial motions. 31% 26% 26% 1% 3% 13% 2.94 3.25 1d. Setting reasonable schedules for cases. 35% 21% 14% 14% 12% 4% 2.55 3.29 Overall Case Management 2.88 3.33 2. Application and Knowledge of Law: 2a. Being able to identify and analyze relevant facts. 34% 26% 23% 12% 4% 1% 2.75 3.28 2b. Basing decisions on evidence and arguments. 22% 29% 26% 14% 5% 4% 2.50 3.17 2c. Willing to reconsider error in fact or law. 21% 23% 18% 13% 9% 16% 2.40 2.95 2d. Issuing consistent sentences when the circumstances are 29% 43% 0% 14% 0% 14% 3.00 3.14 similar. Overall Application and Knowledge of Law 2.66 3.14 3. Communications: 3a. Making sure all participants understand the proceedings. 57% 25% 12% 4% 3% 0% 3.29 3.51 3b. Providing written communications that are clear, thorough 36% 23% 16% 4% 3% 18% 3.05 3.29 and well reasoned. Overall Communications 3.17 3.40 4. Demeanor: 4a. Giving proceedings a sense of dignity. 50% 28% 14% 4% 4% 0% 3.16 3.46 4b. Treating participants with respect. 54% 25% 11% 4% 7% 0% 3.16 3.41 4c. Conducting the courtroom in a neutral manner. 34% 26% 21% 12% 7% 0% 2.70 3.28 4d. Consistently applying laws and rules. 24% 30% 21% 12% 5% 8% 2.60 3.24 Overall Demeanor 2.91 3.35 5. Diligence: 5a. Using good judgment in application of relevant law and 26% 29% 25% 13% 5% 1% 2.59 3.18 rules. 5b. Doing the necessary "homework" and being prepared for 43% 22% 16% 9% 3% 7% 3.01 3.30 cases. 5c. Being willing to handle cases on the docket even when 50% 18% 20% 3% 0% 9% 3.28 3.40 they are complicated and time consuming. Overall Diligence 2.96 3.29 Overall Average Grade: 2.88 3.29 * Includes only the District judges evaluated during this interim cycle. Note: Respondents rated judges on various questions using an A to F scale, in which the grades were then converted to numerical scores: A=4, B=3, C=2, D=1 and F=0. An average score of 4.0 is the highest possible score and a 0.0 is the lowest possible score. 'DK/NA' = Don't Know / Not Applicable. 2013 Judicial Performance Interim Survey 4 ## Page 8 Survey of Attorneys Regarding District Judges Percentage Judge Donna J. Schmalberger Donna J. All District Schmalberger Judges* Would you say the judge is: Very biased in favor of the prosecution 25% 10% Somewhat biased in favor of the prosecution 0% 27% Completely neutral 0% 47% Somewhat biased in favor of the defense 25% 9% Very biased in favor of the defense 0% 2% Don't know or not sure 50% 5% How strongly do you recommend that the Judge be retained in office, or not be retained in office? Excluding "don't know" respondents. Strongly recommend retain 56% 57% Recommend retain 24% 24% Neither recommend nor not recommend retain in office 16% 9% Recommend not retain 0% 5% Strongly recommend not retain 4% 6% Total Retain 80% 81% Neither 16% 9% Total Not Retain 4% 11% Including "don't know" respondents. Strongly recommend retain 54% 57% Recommend retain 23% 24% Neither recommend nor not recommend retain in office 15% 9% Recommend not retain 0% 5% Strongly recommend not retain 4% 6% Don't know enough to make a recommmendation 4% 1% Total Retain 77% 81% Neither 15% 9% Total Not Retain 4% 11% Don't Know 4% 1% * Includes only the District judges evaluated during this interim cycle. 2013 Judicial Performance Interim Survey 5 ## Page 9 Judge Donna J. Schmalberger Survey of Attorneys Regarding District Judges Average Grades 2.88 Overall Average Grade 3.29 2.88 Q1. Overall Case Management 3.33 1a. Promptly issuing a decision on the 3.30 case after trial. 3.39 2.74 1b. Maintaining appropriate control over proceedings. 3.40 2.94 1c. Promptly ruling on pre-trial motions. 3.25 1d. Setting reasonable schedules for cases. 2.55 3.29 2.66 Q2. Overall App & Knowledge of Law 3.14 2.75 2a. Being able to identify and analyze relevant facts. 3.28 2.50 2b. Basing decisions on evidence and arguments. 3.17 2.40 2c. Willing to reconsider error in fact or law. 2.95 3.00 2d. [Criminal only] Issuing consistent sentences 3.14 when circumstances are similar. 3.17 Q3. Overall Communication 3.40 3.29 3a. Making sure all participants understand 3.51 the proceedings. 3.05 3b. Providing written communications that are 3.29 clear, thorough and well reasoned. 2.0 2.5 3.0 3.5 4.0 Donna J. Schmalberger All District Judges* * Includes only the District judges evaluated during this interim cycle. Judge Donna J. Schmalberger 6 2013 Judicial Performance Interim Survey ## Page 10 * Includes only the District judges evaluated during this interim cycle. Judge Donna J. Schmalberger Survey of Attorneys Regarding District Judges Average Grades 2.91 Q4. Overall Demeanor 3.35 3.16 4a. Giving proceedings a sense of dignity. 3.46 3.16 4b. Treating participants with respect. 3.41 4c. Conducting the courtroom in a 2.70 neutral manner. 3.28 2.60 4d. Consistently applying laws and rules. 3.24 2.96 Q5. Overall Diligence 3.29 5a. Using good judgment in application of 2.59 relevant laws and rules. 3.18 5b. Doing the necessary 'homework' and 3.01 being prepared for cases. 3.30 5c. Being willing to handle cases on the docket even 3.28 when they are complicated and time consuming. 3.40 2.0 2.5 3.0 3.5 4.0 Biased in favor of prosecution/defense. 25% Very biased in favor of the prosecution 10% 0% Somewhat biased in favor of the prosecution 27% 0% Completely Neutral 47% 25% Somewhat biased in favor of the defense 9% 0% Very biased in favor of the defense 2% 50% Don't know/not sure 5% 0% 10% 20% 30% 40% 50% 60% Donna J. Schmalberger All District Judges* * Includes only the District judges evaluated during this interim cycle. 7 2013 Judicial Performance Interim Survey ## Page 11 * Includes only the District judges evaluated during this interim cycle. Judge Donna J. Schmalberger Survey of Attorneys Regarding District Judges How strongly do you recommend that Judge Schmalberger be retained or not retained in office? Excluding "Don't Know" Respondents 56% Strongly recommend retain 57% 24% Recommend retain 24% Excluding DK Respondents 16% Neither retain nor not retain Judge All Dist 9% Schmalberger Judges* Total Retain 80% 81% 0% Recommend not retain Neither 16% 9% 5% Total Not Retain 4% 11% 4% Strongly recommend not retain 6% 0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100% Including "Don't Know" Respondents 54% Strongly recommend retain 57% 23% Recommend retain 24% Including DK Respondents 15% Neither retain nor not retain Judge All Dist 9% Schmalberger Judges* 0% Recommend not retain Total Retain 77% 81% 5% Neither 15% 9% 4% Total Not Retain 4% 11% Strongly recommend not retain 6% Total DK 4% 1% Don't know enough to make a 4% recommendation 1% 0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100% Donna J. Schmalberger All District Judges* * Includes only the District judges evaluated during this interim cycle. 8 2013 Judicial Performance Interim Survey ## Page 12 SSuurrvveeyy ooff NNoonn--AAtoorrnneeyyss RReeggaarrddiinngg JJuuddggee DDoonaa JJ.. SScchhmmaallbbeerrggeerr ((SSaammppllee SSiizzee 8833)) ## Page 13 Survey of Non-Attorneys Regarding District Judges Average (0.0 to 4.0 scale) Judge Donna J. Schmalberger Donna J. All District Sample Size = 83 A B C D Fail DK/NA Schmalberger Judges* 1. Demeanor: 1a. Giving court proceedings a sense of dignity. 72% 20% 6% 1% 0% 1% 3.64 3.68 1b. Treating participants in the case politely and with respect. 77% 16% 4% 2% 0% 1% 3.69 3.69 1c. Conducting the courtroom in a neutral manner. 71% 22% 1% 4% 1% 1% 3.58 3.62 1d. Having a sense of compassion and human understanding 69% 19% 7% 2% 1% 1% 3.54 3.58 for those who appear before the judge. Overall Demeanor 3.61 3.64 2. Fairness: 2a. Giving participants an opportunity to be heard. 70% 21% 6% 1% 1% 1% 3.58 3.65 2b. Treating those involved in the case without bias. 73% 12% 5% 6% 1% 2% 3.54 3.61 2c. Treating fairly people who represent themselves. 60% 11% 1% 1% 1% 26% 3.70 3.64 2d. Giving each side enough time to present his or her case. 72% 17% 5% 4% 0% 2% 3.61 3.66 Overall Fairness 3.61 3.64 3. Communications: 3a. Making sure participants understand the proceedings, and 72% 18% 8% 0% 0% 1% 3.65 3.70 what's going on in the courtroom. 3b. Using language that everyone can understand. 77% 17% 5% 0% 0% 1% 3.73 3.73 3c. Speaking clearly so everyone in the courtroom can hear 81% 12% 6% 0% 0% 1% 3.76 3.75 what's being said. Overall Communications 3.71 3.73 4. Diligence: 4a. Beginning court on time. 62% 26% 9% 2% 0% 1% 3.49 3.55 4b. Maintaining appropriate control over proceedings. 75% 18% 4% 2% 0% 1% 3.67 3.73 4c. Setting reasonable schedules for cases. 65% 12% 9% 6% 1% 7% 3.43 3.63 4d. Being prepared for cases. 72% 15% 5% 1% 0% 7% 3.70 3.68 4e. Managing court proceedings so that there is little wasted 57% 20% 13% 7% 0% 2% 3.30 3.57 time. Overall Diligence 3.52 3.63 5. Application of Law: 5a. Giving reasons for rulings. 64% 14% 7% 4% 0% 11% 3.55 3.57 5b. Willing to make decision without regard to possible outside 59% 10% 6% 4% 0% 22% 3.58 3.61 pressure. 5c. Being able to identify and analyze relevant facts. 65% 13% 6% 4% 2% 10% 3.49 3.59 Overall Application of Law 3.54 3.59 Overall Average Grade: 3.59 3.64 * Includes only the District judges evaluated during this interim cycle. Note: Respondents rated judges on various questions using an A to F scale, in which the grades were then converted to numerical scores: A=4, B=3, C=2, D=1 and F=0. An average score of 4.0 is the highest possible score and a 0.0 is the lowest possible score. 'DK/NA' = Don't Know / Not Applicable. 2013 Judicial Performance Interim Survey 10 ## Page 14 Survey of Non-Attorneys Regarding District Judges Percentage Judge Donna J. Schmalberger Donna J. All District Schmalberger Judges* 6. Average Bias [Please see the questionnaire at the end of report for question wording.] Biased in favor of the prosecution total 16% 9% Competely neutral 76% 85% Biased in favor of the defense total 8% 7% [A positive average indicates bias toward prosecution, and a Average 0.22 0.07 negative average indicates a bias toward the defense.] 7. Average Sentencing [Please see the questionnaire at the end of report for question wording.] Harsh sentencing total 16% 9% Competely neutral 68% 81% Lenient sentencing total 16% 10% [A positive average indicates sentences are harsh, and a Average 0.05 0.05 negative average indicates sentences are lenient.] How strongly do you recommend that the Judge be retained, or not be retained in office? Excluding "don't know" respondents. Strongly recommend retain 100% 74% Recommend retain 0% 15% Neither recommend nor not recommend retain in office 0% 4% Recommend not retain 0% 2% Strongly recommend not retain 0% 5% Total Retain 100% 89% Neither 0% 4% Total Not Retain 0% 7% Including "don't know" respondents. Strongly recommend retain 75% 71% Recommend retain 0% 14% Neither recommend nor not recommend retain in office 0% 4% Recommend not retain 0% 2% Strongly recommend not retain 0% 5% Don't know enough to make a recommendation 25% 4% Total Retain 75% 85% Neither 0% 4% Total Not Retain 0% 7% Don't Know 25% 4% * Includes only the District judges evaluated during this interim cycle. 2013 Judicial Performance Interim Survey 11 ## Page 15 Judge Donna J. Schmalberger Survey of Non-Attorneys Regarding District Judges Average Grades 3.59 Overall Average Grade 3.64 3.61 Q1. Overall Demeanor 3.64 3.64 1a. Giving proceedings a sense of dignity. 3.68 1b. Treating participants politely and with respect. 3.69 3.69 1c. Conducting the courtroom in a neutral 3.58 manner. 3.62 1d. Having a sense of compassion and human 3.54 understanding for those who appear before the judge. 3.58 3.61 Q2. Overall Fairness 3.64 2a. Giving participants an opportunity to be 3.58 heard. 3.65 2b. Treating those involved in the 3.54 case without bias. 3.61 2c. Treats people fairly who represent 3.70 themselves. 3.64 2d. Giving each side enough time to present his 3.61 or her case. 3.66 3.71 Q3. Overall Communications 3.73 3a. Making sure participants understand the 3.65 proceedings, and what's going on in the courtroom. 3.70 3b. Using language that everyone can 3.73 understand. 3.73 3c. Speaking clearly so everyone in the courtroom 3.76 can hear what's being said. 3.75 2.0 2.5 3.0 3.5 4.0 Donna J. Schmalberger All District Judges* * Includes only the District judges evaluated during this interim cycle. Judge Donna J. Schmalberger 12 2013 Judicial Performance Interim Survey ## Page 16 Judge Donna J. Schmalberger Survey of Non-Attorneys Regarding District Judges Average Grades 3.52 Q4. Overall Diligence 3.63 3.49 4a. Beginning court on time. 3.55 4b. Maintaining appropriate control over 3.67 proceedings. 3.73 4c. Setting reasonable schedules for cases. 3.43 3.63 4d. Being prepared for cases. 3.70 3.68 4e. Managing court proceedings so that there is 3.30 little wasted time. 3.57 3.54 Q5. Overall Application of Law 3.59 3.55 5a. Giving reasons for rulings. 3.57 5b. Willing to make decision without regard to 3.58 possible outside pressure. 3.61 5c. Being able to identify and analyze 3.49 relevant facts. 3.59 2.0 2.5 3.0 3.5 4.0 Q6 Biased in favor of prosecution/defense. 1 0.22 Donna J. Schmalberger 0.07 All District Judges* -5 -4 -3 -2 -1 0 1 2 3 4 5 Defense Prosecution 1-A negative average score indicates bias toward the defense, and a positive average score indicates bias toward prosecution. Q7 Lenience or Harshness in Sentencing. 2 0.05 Donna J. Schmalberger 0.05 All District Judges* -5 -4 -3 -2 -1 0 1 2 3 4 5 Lenient Harsh 2-A negative average score indicates sentences are lenient, and a positive average score indicates sentences are harsh. Donna J. Schmalberger All District Judges* * Includes only the District judges evaluated during this interim cycle. 13 2013 Judicial Performance Interim Survey ## Page 17 * Includes only the District judges evaluated during this interim cycle. Judge Donna J. Schmalberger Survey of Non-Attorneys Regarding District Judges How strongly do you recommend that Judge Schmalberger be retained or not retained in office? Excluding "Don't Know" Respondents 100% Strongly recommend retain 74% 0% Recommend retain 15% Excluding DK Respondents 0% Neither retain nor not retain 4% Judge All Dist Schmalberger Judges* 0% Recommend not retain Total Retain 100% 89% 2% Neither 0% 4% Total Not Retain 0% 7% 0% Strongly recommend not retain 5% 0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100% Including "Don't Know" Respondents 75% Strongly recommend retain 71% 0% Recommend retain 14% 0% Neither retain nor not retain 4% Including DK Respondents Judge All Dist 0% Schmalberger Judges* Recommend not retain 2% Total Retain 75% 85% Neither 0% 4% 0% Strongly recommend not retain Total Not Retain 0% 7% 5% Total DK 25% 4% Don't know enough to make a 25% recommendation 4% 0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100% Donna J. Schmalberger All District Judges* * Includes only the District judges evaluated during this interim cycle. 14 2013 Judicial Performance Interim Survey ## Page 18 MMeetthhooddoollooggyy ## Page 19 MMeetthhooddoollooggyy The results shown in the 2013 Judicial Performance Interim Survey Report are based on two surveys: The Survey of Attorneys Regarding Trial Judges, and the Survey of Non- Attorneys Regarding Trial Judges. Below is a description of the methodology used in the two surveys. I Attorneys Regarding Trial Judges a. Sample: Research & Polling, Inc. received case data with the names of attorneys who had likely been in each judge’s courtroom from the following primary sources: Colorado Judicial Department Colorado District Attorneys’ Council Colorado Public Defender’s Office Denver County Courts District Attorney’s Office, Second Judicial District (Denver) District Attorney’s Office, Ninth Judicial District The data from these different sources are combined, duplicates removed, and addresses corrected. Only judges that are due to receive an interim evaluation in 2013 were evaluated during this reporting cycle. The intent was to increase the number of completed attorney evaluations for each judge by excluding those not due to receive an interim evaluation in 2013. The number of possible judges that attorney respondents could evaluate was 10. Attorneys are first mailed a letter inviting them to complete the survey online. The letter provides the link to the online survey, as well as a unique password to access the survey. Approximately one week later, attorneys are sent an email invitation to complete the online survey, which also provides the Web address and their unique password. About a week after the first email is sent, a reminder email is sent, providing the same information. Potential respondents who do not complete the survey after the second email are then telephoned and asked to either complete the survey by phone, or to complete it online. Since 2010, the Judicial Performance Survey reports are based on a moving average, or rolling sample, of data collected over a period of time equal to the justice’s or judge’s term of office: ten years for a Supreme Court justice, eight years for a COA judge, six years for a district judge, and four years for a county judge. To use a district judge as an example: as survey data is collected it is pooled together for six years. After six years, as new data is added to the judge’s survey results, the oldest data in the pool is deleted. 16 ## Page 20 b. Questions: Respondents evaluated judges on 17 aspects of judicial performance using a grade scale of A, B, C, D, or F. (See Questionnaire section.) These grades were then converted to a numerical score where A = 4, B = 3, C = 2, D = 1 and Fail = 0. The A through F scale was chosen because it is almost universally recognized and understood. This makes it easy for respondents to complete their questionnaire, and for the public to interpret the results. Respondents were also asked if they considered the judge biased toward the defense or prosecution in criminal cases. In a final question, respondents were asked to indicate how strongly they would recommend that the judge be retained or not retained in office. For this evaluation cycle, the rating scale for the “retention” question was changed to: Strongly recommend retain, Recommend retain, Neither recommend nor not recommend retain, Recommend not retain, Strongly recommend not retain, or Don’t know enough to make a recommendation. Due to the changes in the response categories for the retention question, the results to this question have only been compiled among the survey respondents from this year’s interim survey. c. Analysis: The Attorneys Regarding District Judges section first shows a table of the percentage distribution for each of the A through F questions, including “don’t know/not applicable” responses. The next column to the right shows the judge’s average grade for each question. For comparison purposes, averages were also computed for all district judges receiving an interim evaluation in 2013 and are shown in the furthest right column on the page. Tables showing the percentage distribution for all questions for all district judges are located at the end of this methodology section. The overall question averages are calculated by adding up the averages for each question and dividing by the number of questions. The next table shows the percentage distribution of the responses to the question about recommending retention. The first column of percentages is for the report-judge and the second column displays the percentages for all district judges. The percentages are shown both including and excluding “don’t know” responses. The next page displays the question averages in horizontal bar-graph form. The percentage distribution to the retention question is then presented in the graph on the next page. The third part of the Attorneys Regarding District Judges section of the report lists the comments the attorneys made about the judge’s strengths and weaknesses. d. Comments: Respondents were also asked what they considered to be the judge’s strengths and weaknesses. By statute, these comments are confidential and only provided to the judge and the District Commission on Judicial Performance. They are not released to the public when the rest of the report is released. Before being given to the judge and the 17 ## Page 21 Commission, an attempt is made to redact all respondent identifying information from the comments. Since 2005, there have been changes to the number of comment questions asked, though the strengths and weaknesses questions have been posed in every survey. The number to the left of each comment refers to the same attorney respondent in both the strengths section and the weaknesses section. Most spelling and typographical errors have been corrected. e. Cooperation Rate: The overall cooperation rate for the Attorneys Regarding Trial Judges Survey is calculated as the number of completed survey evaluations divided by the number of possible evaluations resulting in an overall cooperation rate of 44.5% for district judges and 35.3% for county judges. An equivalent cooperation rate for an individual judge is computed in the same manner. Undeliverable surveys have been excluded from the cooperation rates. II Non-Attorneys Regarding Trial Judges a. Sample: Research & Polling, Inc. received case data with the names of non-attorneys who had likely been in each judge’s courtroom from the following primary sources: Colorado Judicial Department Colorado District Attorneys’ Council Colorado Public Defender’s Office Denver County Courts District Attorney’s Office, Second Judicial District (Denver) District Attorney’s Office, Ninth Judicial District The data from these different sources are combined, duplicates removed, and addresses corrected. Only the judges due to receive an interim evaluation in 2013 were evaluated during this reporting cycle. The intent was to increase the number of completed non-attorney evaluations for each judge by excluding those not due to receive an interim evaluation in 2013. RPI surveyed non-attorneys with courtroom experience, including: law enforcement personnel, witnesses, crime victims, jurors, criminal defendants, and civil litigants. Non-attorneys were surveyed via standard mail. First, they were mailed an initial postcard informing the recipient that he or she would be receiving a questionnaire. Two to three weeks after the postcard was mailed, the potential respondent was sent a personalized introductory letter and a questionnaire with a postage-paid return 18 ## Page 22 envelope. If the person did not respond, a second questionnaire and letter were sent approximately four weeks later. Questionnaires are barcoded, and if a respondent mailed back two questionnaires, the second one was deleted from the data file. Since 2010, the non-attorney section of the Judicial Performance Survey reports have been based on a moving average, or rolling sample, of survey results collected over a period of time equal to the judge’s term of office: six years for a district judge and four years for a county judge. To use a district judge as an example: as survey data is collected it is pooled together for six years. After six years, as new data is added to the judge’s survey results, the oldest data in the pool is deleted. b. Questions: Respondents evaluated judges on 19 aspects of judicial performance using a grade scale of A, B, C, D, or F. (See Questionnaire section.) These grades were then converted to a numerical score where A = 4, B = 3, C = 2, D = 1 and Fail = 0. The A through F scale was chosen because it is almost universally recognized and understood. This makes it easy for respondents to complete their questionnaire, and for the public to interpret the results. Respondents were also asked if they considered the judge biased toward the defense or prosecution in criminal cases. In a final question, respondents were asked to indicate how strongly they would recommend that the justice or judge be retained or not retained in office. For this evaluation cycle, the rating scale for the “retention” question was changed to: Strongly recommend retain, Recommend retain, Neither recommend nor not recommend retain, Recommend not retain, Strongly recommend not retain, or Don’t know enough to make a recommendation. Due to the changes in the response categories for the retention question, the results to this question have only been compiled among the survey respondents from this year’s interim survey. A copy of the questionnaire is included in the last section of this report. c. Analysis: The Non-Attorneys Regarding District Judges section first shows a table of the percentage distribution for each of the A through F questions, including “don’t know/not applicable” responses. The next column to the right shows the judge’s average grade for each question. For comparison purposes, averages were also computed for all district judges receiving an interim evaluation in 2013 and are shown in the furthest right column on the page. Tables showing the percentage distribution for all questions for all district judges are located at the end of this methodology section. The overall question averages are calculated by adding up the averages for each question and dividing by the number of questions. The next table shows the percentage distribution of the responses to the questions about prosecution or defense bias and recommending retention. The first column of percentages is for the report-judge and the second column displays the percentages for 19 ## Page 23 all district judges. The percentages for the retention question are shown including and excluding “don’t know” responses. The next page displays the question averages in horizontal bar-graph form. The percentage distribution of the prosecution-defense bias and retention questions are then presented in the graph on the next page. The third part of the Non-Attorneys Regarding District Judges section of the report lists the comments the non-attorneys made about the judge’s strengths and weaknesses. d. Comments: In addition to the A through F questions, non-attorney respondents were asked what they considered to be the judge’s strengths and weaknesses. By statute, these comments are confidential and only provided to the judge and the District Commission on Judicial Performance. They are not released to the public when the rest of the report is released. Before being given to the judge and the Commission, an attempt is made to redact all respondent identifying information from the comments. Since 2005 there have been changes to the number of comment questions asked, though the strengths and weaknesses questions have been posed in every survey. The number to the left of each comment refers to the same non-attorney respondent in both the strengths section and the weaknesses section. e. Cooperation Rate: The estimated cooperation rate for the non-attorney survey is calculated as the number of completed questionnaires divided by the number of eligible respondents who actually received a questionnaire. Undeliverable surveys have been excluded from the cooperation rates. The following table shows the total number of questionnaires mailed, completed, non-responses and refusals, undeliverables, and other responses. The table presents the estimated overall cooperation rate as well as the cooperation rate by the different types of respondents. The true cooperation rates are likely higher than shown because of the percentage of people who were mailed questionnaires about judges with whom they may not have had sufficient experience. This is due, in part, to many cases being disposed of without the parties having appeared in court, as well as in the case of law enforcement, the data includes all those who were subpoenaed for a case, not just those who appeared. A table of the response counts by respondent type for Judge Schmalberger is shown on the following page, and on the next page is a table of the overall cooperation rates for both the Attorney and Non-Attorney Regarding Trial Judges surveys for all district judges. 20 ## Page 24 Judge Donna J. Schmalberger Judge Response Counts by Type of Respondent Total No Undeliverable/ Other Non- Coop Role Type Sent Response Not Applicable Responses Completes Rate Attorneys Criminal District Attorneys 34 16 1 0 17 51.5% Defense Attorneys 37 19 0 0 18 48.6% Other Attorneys Criminal 1 0 0 0 1 100.0% Civil Attorneys for Litigants 60 23 2 0 35 60.3% Other Attorneys Civil 16 9 1 0 6 40.0% Total Attorneys 148 67 4 0 77 53.5% Non-attorneys Criminal Victim 21 15 3 2 1 5.6% Witness 80 45 21 5 9 15.3% Other 3 2 1 0 0 0.0% Law Enforcement 77 53 14 6 4 6.3% Defendant 269 155 99 6 9 5.3% Civil Litigant 338 169 140 4 25 12.6% Witness 2 0 2 0 0 0.0% Jurors 49 17 1 2 29 60.4% Employees, including Interpreters 3 0 0 1 2 66.7% Probation Officers 14 6 1 3 4 30.8% Total Non-attorneys 856 462 282 29 83 14.5% Grand Total: 1004 529 286 29 160 22.3% Note: “Undeliverable/Not Applicable” surveys are removed from the “Total Sent” prior to calculating the cooperation rate. 2013 Judicial Performance Interim Survey 21 ## Page 25 Total Response Counts by Type of Respondent for All District Judges* Total No Undeliverable/ Other Non- Completes Cooperation Sent Response Not Applicable Responses Rate Attorneys Criminal District Attorneys 3130 2013 120 1 996 33.1% Defense Attorneys 4130 2444 84 0 1602 39.6% Other Attorneys Criminal 248 125 13 0 110 46.8% Civil Attorneys for Litigants 4708 2028 213 2 2465 54.8% Other Attorneys Civil 4027 1956 366 2 1703 46.5% GAL 29 12 0 0 17 58.6% Total Attorneys 16272 8578 796 5 6893 44.5% Non-attorneys Criminal Victim 109 66 23 5 15 17.4% Witness 5404 2746 1591 265 802 21.0% Other 832 471 248 10 103 17.6% Law Enforcement 4235 2320 1024 167 724 22.5% Defendant 20502 9362 9533 132 1475 13.4% Civil Litigant 12103 6801 2810 219 2273 24.5% Witness 498 251 99 15 133 33.3% Other 454 196 99 21 138 38.9% Jurors 17494 7070 1191 267 8966 55.0% Employees, including Interpreters 233 68 29 22 114 55.9% Probation Officers 116 42 4 8 62 55.4% Total Non-attorneys 61980 29393 16651 1131 14805 32.7% Grand Total: 78252 37971 17447 1136 21698 35.7% * Includes only the District judges evaluated during this interim cycle. Note: “Undeliverable/Not Applicable” surveys are removed from the “Total Sent” prior to calculating the cooperation rate. 2013 Judicial Performance Interim Survey 22 ## Page 26 Survey of Attorneys Regarding Trial Judges All District Judges* Average Grade Sample Size = 6893 A B C D Fail DK/NA (0.0 to 4.0 scale) 1. Case Management: 1a.Promptly issuing a decision on the case after trial. 51% 20% 8% 3% 2% 18% 3.39 1b.Maintaining appropriate control over proceedings. 60% 24% 9% 3% 2% 2% 3.40 1c.Promptly ruling on pre-trial motions. 46% 25% 10% 4% 2% 13% 3.25 1d.Setting reasonable schedules for cases. 53% 27% 10% 4% 3% 4% 3.29 Overall Case Management 3.33 2. Application and Knowledge of Law: 2a.Being able to identify and analyze relevant facts. 55% 25% 11% 5% 2% 2% 3.28 2b.Basing decisions on evidence and arguments. 51% 24% 12% 6% 4% 3% 3.17 2c.Willing to reconsider error in fact or law. 35% 19% 10% 6% 5% 25% 2.95 2d.Issuing consistent sentences when the circumstances are 39% 26% 10% 5% 3% 17% 3.14 similar. Overall Application and Knowledge of Law 3.14 3. Communications: 3a.Making sure all participants understand the proceedings. 64% 23% 7% 2% 1% 2% 3.51 3b.Providing written communications that are clear, thorough 49% 23% 10% 4% 2% 12% 3.29 and well reasoned. Overall Communications 3.40 4. Demeanor: 4a. Giving proceedings a sense of dignity. 66% 20% 7% 3% 3% 1% 3.46 4b. Treating participants with respect. 66% 18% 7% 4% 4% 1% 3.41 4c. Conducting the courtroom in a neutral manner. 61% 19% 10% 5% 4% 2% 3.28 4d. Consistently applying laws and rules. 54% 22% 11% 5% 3% 4% 3.24 Overall Demeanor 3.35 5. Diligence: 5a.Using good judgment in application of relevant law and 52% 24% 11% 6% 4% 2% 3.18 rules. 5b.Doing the necessary "homework" and being prepared for 56% 23% 9% 5% 3% 4% 3.30 cases. 5c.Being willing to handle cases on the docket even when they 55% 17% 7% 3% 2% 15% 3.40 are complicated and time consuming. Overall Diligence 3.29 Overall Average Grade: 3.29 * Includes only the District judges evaluated during this interim cycle. Note: Respondents rated judges on various questions using an A to F scale, in which the grades were then converted to numerical scores: A= 4, B=3, C=2, D=1 and F=0. An average score of 4.0 is the highest possible score and a 0.0 is the lowest possible score. 'DK/NA' = Don't Know / Not Applicable. 2013 Judicial Performance Interim Survey 23 ## Page 27 Survey of Attorneys Regarding Trial Judges Average Grade All District Judges* (0.0 to 4.0 scale) Would you say the judge is: Very biased in favor of the prosecution 10% Somewhat biased in favor of the prosecution 27% Completely neutral 47% Somewhat biased in favor of the defense 9% Very biased in favor of the defense 2% Don't know or not sure 5% How strongly do you recommend that the Judge be retained in office, or not be retained in office? Excluding "don't know" respondents. Strongly recommend retain 57% Recommend retain 24% Neither recommend nor not recommend retain in office 9% Recommend not retain 5% Strongly recommend not retain 6% Total Retain 81% Neither 9% Total Not Retain 11% Including "don't know" respondents. Strongly recommend retain 57% Recommend retain 24% Neither recommend nor not recommend retain in office 9% Recommend not retain 5% Strongly recommend not retain 6% Don't know enough to make a recommmendation 1% Total Retain 81% Neither 9% Total Not Retain 11% Don't Know 1% * Includes only the District judges evaluated during this interim cycle. 2013 Judicial Performance Interim Survey 24 ## Page 28 Survey of Non-Attorneys Regarding Trial Judges All District Judges* Average Grade Sample Size = 14805 A B C D Fail DK/NA (0.0 to 4.0 scale) 1. Demeanor: 1a.Giving court proceedings a sense of dignity. 78% 14% 4% 1% 2% 1% 3.68 1b.Treating participants in the case politely and with respect. 81% 12% 3% 2% 2% 1% 3.69 1c.Conducting the courtroom in a neutral manner. 78% 13% 3% 2% 3% 1% 3.62 1d.Having a sense of compassion and human understanding 75% 14% 4% 2% 3% 2% 3.58 for those who appear before the judge. Overall Demeanor 3.64 2. Fairness: 2a.Giving participants an opportunity to be heard. 79% 13% 3% 2% 2% 1% 3.65 2b.Treating those involved in the case without bias. 77% 12% 3% 2% 4% 2% 3.61 2c.Treating fairly people who represent themselves. 51% 7% 2% 1% 2% 36% 3.64 2d.Giving each side enough time to present his or her case. 76% 13% 3% 2% 2% 4% 3.66 Overall Fairness 3.64 3. Communications: 3a.Making sure participants understand the proceedings, and 80% 12% 3% 1% 2% 1% 3.70 what's going on in the courtroom. 3b.Using language that everyone can understand. 80% 14% 3% 1% 1% 1% 3.73 3c.Speaking clearly so everyone in the courtroom can hear 82% 12% 3% 1% 1% 1% 3.75 what's being said. Overall Communications 3.73 4. Diligence: 4a.Beginning court on time. 68% 21% 6% 2% 2% 2% 3.55 4b.Maintaining appropriate control over proceedings. 81% 12% 3% 1% 1% 1% 3.73 4c.Setting reasonable schedules for cases. 69% 14% 4% 1% 2% 10% 3.63 4d.Being prepared for cases. 77% 12% 3% 1% 2% 5% 3.68 4e.Managing court proceedings so that there is little wasted 70% 18% 5% 2% 2% 2% 3.57 time. Overall Diligence 3.63 5. Application of Law: 5a.Giving reasons for rulings. 70% 14% 4% 2% 3% 7% 3.57 5b.Willing to make decision without regard to possible outside 65% 10% 3% 2% 3% 18% 3.61 pressure. 5c.Being able to identify and analyze relevant facts. 72% 11% 3% 2% 4% 8% 3.59 Overall Application of Law 3.59 Overall Average Grade: 3.64 * Includes only the District judges evaluated during this interim cycle. Note: Respondents rated judges on various questions using an A to F scale, in which the grades were then converted to numerical scores: A= 4, B=3, C=2, D=1 and F=0. An average score of 4.0 is the highest possible score and a 0.0 is the lowest possible score. 'DK/NA' = Don't Know / Not Applicable. 2013 Judicial Performance Interim Survey 25 ## Page 29 Survey of Non-Attorneys Regarding Trial Judges Average Grade All District Judges* (0.0 to 4.0 scale) 6. How biased do you think the Judge is toward the defense or prosecution? [Please see the questionnaire at the end of report for question wording.] Biased in favor of the prosecution total 9% Competely neutral 85% Biased in favor of the defense total 7% Average 0.07 7. How lenient or harsh do you think the sentences generally handed down by Judge are? [Please see the questionnaire at the end of report for question wording.] Harsh sentencing total 9% Competely neutral 81% Lenient sentencing total 10% Average 0.05 How strongly do you recommend that the Judge be retained, or not be retained in office? Excluding "don't know" respondents. Strongly recommend retain 74% Recommend retain 15% Neither recommend nor not recommend retain in office 4% Recommend not retain 2% Strongly recommend not retain 5% Total Retain 89% Neither 4% Total Not Retain 7% Including "don't know" respondents. Strongly recommend retain 71% Recommend retain 14% Neither recommend nor not recommend retain in office 4% Recommend not retain 2% Strongly recommend not retain 5% Don't know enough to make a recommendation 4% Total Retain 85% Neither 4% Total Not Retain 7% Don't Know 4% * Includes only the District judges evaluated during this interim cycle. 2013 Judicial Performance Interim Survey 26 ## Page 30 QQuueessttiioonnnnaaiirreess ## Page 31 Colorado Judicial Performance Attorneys Regarding Trial Judges Survey Questions _ Which of the following types of cases have you observed Judge (Last Name)’s performance? Please circle all that apply. (Only respondents who indicate they have observed the judge in “criminal other than traffic” cases will be asked question 2d and the “bias” question between 5 and 6.) Civil . 1 Criminal other than traffic . 2 Traffic . 3 Domestic . 4 Juvenile . 5 Probate . 6 Other . 9 Using a grade scale, where an "A" is excellent along with B, C, D or F for fail, please grade Judge [Last Name] on the following. If, for a specific question you feel that you do not have enough information to grade the judge, please check DK/NA for Don't Know/Not Applicable. 1. Case Management: a. Promptly issuing a decision on the case after trial. A B C D F DK/NA b. Maintaining appropriate control over proceedings. A B C D F DK/NA c. Promptly ruling on pre-trial motions. A B C D F DK/NA d. Setting reasonable schedules for cases. A B C D F DK/NA 2. Application and Knowledge of Law: a. Being able to identify and analyze relevant facts. A B C D F DK/NA b. Basing decisions on evidence and arguments. A B C D F DK/NA c. Willing to reconsider error in fact or law. A B C D F DK/NA d. [Criminal only] Issuing consistent sentences when the circumstances are similar. A B C D F DK/NA 3. Communications: a. Making sure all participants understand the proceedings. A B C D F DK/NA b. Providing written communications that are clear, thorough and well reasoned. A B C D F DK/NA 4. Demeanor: a. Giving proceedings a sense of dignity. A B C D F DK/NA b. Treating participants with respect. A B C D F DK/NA c. Conducting his/her courtroom in a neutral manner. A B C D F DK/NA d. Consistently applying laws and rules. A B C D F DK/NA 1 ## Page 32 5. Diligence: a. Using good judgment in application of relevant law and rules. A B C D F DK/NA b. Doing the necessary “homework” and being prepared for his/her cases. A B C D F DK/NA c. Being willing to handle cases on the docket even when they are complicated and time consuming. A B C D F DK/NA Having observed Judge (Last Name) in a criminal case, would you say the judge is: (This question is asked only if respondent indicated at the beginning of the survey he/she observed the judge in a criminal case.) Very biased in favor of the prosecution . 1 Somewhat biased in favor of the prosecution . 2 Completely Neutral . 3 Somewhat biased in favor of the defense . 4 Very biased in favor of the defense . 5 Don’t Know/Not Sure . 9 6. What would you say are Judge (Last Name)’s strengths? _ _ _ 7. What would you say are Judge (Last Name)’s weaknesses? _ _ _ 8. Keeping in mind your responses to each of the previous questions, how strongly do you recommend that Judge (Last Name) be retained in office, or not be retained in office? Strongly recommend retain in office . 5 Recommend retain in office . 4 Neither recommend nor not recommend retain in office . 3 Recommend not retain in office . 2 Strongly recommend not retain in office . 1 Don’t know enough to make a recommendation . 6 2 ## Page 33 9. And what would you say are Judge [Last Name]’s weaknesses? _ _ _ _ Commission on Judicial Performance _ _ Evaluation of 10. Keeping in mind your responses to each of the previous questions, how JUDGE [FULL NAME] strongly do you recommend that Judge [Last Name] be retained in office, or not retained in office? Strongly recommend he/she be retained in office . 5 Recommend he/she be retained in office . 4 Neither recommend nor not recommend h/s be retained in office .. 3 If we have made a mistake and you either were not in Judge [Last Recommend he/she not be retained in office. 2 Name]’s courtroom or you feel that you do not have sufficient Strongly recommend he/she not be retained in office . 1 experience with Judge [Last Name] to have an opinion on the judge’s judicial performance, please just return this questionnaire, unanswered, Don’t know enough to make a recommendation . 6 in the enclosed postage-paid envelope, to stop any further requests to evaluate Judge [Last Name]. Thank you for taking the time to complete this questionnaire. Please place it in the self-addressed, postage-paid envelope provided and place it in the mail. Your participation in this survey is very much appreciated. Using a grade scale, where an “A” is excellent along with B, C, D or F for fail, please grade the judge on the following. (If you feel that you don’t have experience with the judge in a specific area, or just don’t know, please circle the number corresponding to “Don’t Know/Not Applicable”—DK/NA). DK 1. Demeanor: A B C D F N/A a. Giving court proceedings a sense of dignity. 4 3 2 1 0 9 b. Treating participants in the case politely and with respect. 4 3 2 1 0 9 c. Conducting his/her courtroom in a neutral manner. 4 3 2 1 0 9 d. Having a sense of compassion and human understanding for those who appear before him/her. 4 3 2 1 0 9 Barcode ## Page 34 DK 6. [If you were in [Last Name]’s courtroom during a criminal case or 2. Fairness: A B C D F N/A cases please answer this question, otherwise skip to the next a. Giving participants an opportunity to be heard. 4 3 2 1 0 9 question.] On the scale below, please indicate by circling the appropriate b. Treating those involved in the case without bias. 4 3 2 1 0 9 number how biased you think Judge [Last Name] is toward the defense or c. Treating fairly people who represent themselves. 4 3 2 1 0 9 the prosecution. If you feel Judge [Last Name] is completely unbiased, circle “0.” d. Giving each side enough time to present his or her case. 4 3 2 1 0 9 Bias toward Completely Bias toward Defense Neutral Prosecution DK 5 4 3 2 1 0 1 2 3 4 5 3. Communications: A B C D F N/A a. Makings sure participants understand the 7. [If you were in [Last Name]’s courtroom during a criminal case or proceedings, and what’s going on in the cases please answer this question, otherwise skip to the next courtroom. 4 3 2 1 0 9 question.] On the scale below, please indicate by circling the appropriate b. Using language that everyone can understand. 4 3 2 1 0 9 number how lenient or how harsh you think the sentences generally handed c. Speaking clearly so everyone in the courtroom down by [Last Name] are. If you feel Judge [Last Name] generally hands can hear what’s being said. 4 3 2 1 0 9 down appropriate sentences, circle “0.” DK Sentences Appropriate Sentences 4. Diligence: A B C D F N/A Too Light Sentences Too Harsh a. Beginning court on time. 4 3 2 1 0 9 b. Maintaining appropriate control over 5 4 3 2 1 0 1 2 3 4 5 proceedings. 4 3 2 1 0 9 c. Setting reasonable schedules for cases. 4 3 2 1 0 9 d. Being prepared for his/her cases. 4 3 2 1 0 9 Though your name will never be associated with your answers, because the judge will e. Managing court proceedings so that there is see a typed transcript of the comments that you and others write, it is important that little wasted time. 4 3 2 1 0 9 you do not include information in the comments below that would unintentionally identify you as the author. 8. What would you say are Judge [Last Name]’s strengths? DK ___________________________________________________________ 5. Application of Law: A B C D F N/A ___________________________________________________________ a. Giving reasons for rulings. 4 3 2 1 0 9 ___________________________________________________________ b. Willing to make decision without regard to ___________________________________________________________ possible outside pressure. 4 3 2 1 0 9 ___________________________________________________________ c. Being able to identify and analyze relevant facts. 4 3 2 1 0 9 ___________________________________________________________ Continued on Back Page - 2016 Retention Survey Report(PDF on OJPE)
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## Page 1 The Honorable Donna J. Schmalberger 2016 Judicial Performance Survey Report District Court Conducted by: 75 Washington Ave. Ste. 206 Portland, ME 04101 www.marketdecisions.com ## Page 2 Contents Summary of Results . 1 Overall Score . 1 Retention Scores . 2 Individual Category Scores . 3 Summary of Responses . 4 Survey of Attorneys . 5 Methodology and How to Read Results . 5 Retention . 8 Case Management . 9 Application and Knowledge of Law .10 Communications .11 Demeanor .12 Diligence .13 Bias .14 Survey of Appellate Judges.15 Methodology and How to Read Results .15 Results .17 Survey of Non Attorneys .18 Methodology and How to Read Results .18 Retention .21 Demeanor .22 Fairness .23 Communications .24 Diligence .25 Application of Law .26 Bias .27 Perception of Leniency or Harshness .28 i ## Page 3 Summary of Results For Judge Donna J. Schmalberger, 28 qualified survey respondents submitted surveys. Of those who responded, 17 agreed they had worked with Judge Schmalberger enough to evaluate her performance. This report reflects these 17 responses. Respondents rated judges on various questions using an A to F scale, in which the grades were then converted to the following numerical scores: A= 4, B=3, C=2, D=1 and Fail=0. An average score of 4.0 is the highest possible score and a 0.0 is the lowest possible score. Overall Score Figure 1 0 1 2 3 4 Combined 3.07 Attorneys 3.38 Total Non-Attorneys 2.71 Juror N/A Non-Attorney Other* 2.71 Table 1 Judge Donna J. Schmalberger Overall Scores Non-Attorneys Non- Total Non- Combined Attorneys Juror Attorney Attorneys Other* Overall Grade 3.07 3.38 2.71 N/A 2.71 * The Non-Attorney Other category includes law enforcement personnel, defendants, litigants, and witnesses. 2016 Judicial Performance Survey Report for Judge Donna J. Schmalberger 1 ## Page 4 Retention Scores Figure 2 0% 20% 40% 60% 80% 100% Combined 63% Attorneys 87% Total Non-Attorneys 37% Juror Non-Attorney Other 37% Table 2 Judge Donna J. Schmalberger Overall Retention Scores Non-Attorneys Total Non- Combined Attorneys Non- Juror Attorney Attorneys Other % Recommending 63% 87% 37% N/A 37% Retention 2016 Judicial Performance Survey Report for Judge Donna J. Schmalberger 2 ## Page 5 Individual Category Scores Table 3 Judge Donna J. Schmalberger Overall Category Scores Non-Attorney Non- Area Attorney Total Juror Attorney Other Case Management 3.14 N/A N/A N/A Application and 3.11 2.71 N/A 2.71 Knowledge of Law Communications 3.44 2.79 N/A 2.79 Diligence 3.48 2.75 N/A 2.75 Demeanor 3.71 2.60 N/A 2.60 Fairness N/A 2.68 N/A 2.68 2016 Judicial Performance Survey Report for Judge Donna J. Schmalberger 3 ## Page 6 Summary of Responses Table 4: Response Rates Undeliverable % Without Response Group Total Sent or Not Complete sufficient Rate Applicable* knowledge** Attorneys 32 2 9 47% 36% Total Non- 378 117 8 5% 43% Attorneys Staff 16 0 7 63% 30% Jurors 31 0 0 0% NA Other Non- 331 117 1 2% 75% Attorneys *Undeliverable or Not Applicable surveys are those that were returned as undeliverable, the person no longer works at the address provided, or the respondent is deceased **The percent without sufficient knowledge are those that said they had insufficient experience to evaluate the judge or justice 2016 Judicial Performance Survey Report for Judge Donna J. Schmalberger 4 ## Page 7 Survey of Attorneys Methodology and How to Read Results For Judge Schmalberger, 14 qualified survey respondents submitted surveys. Of those who responded, 9 agreed they had worked with Judge Schmalberger enough to evaluate her performance. This report reflects these 9 responses. The survey results are divided into nine sections: Retention, Case Management, Application and Knowledge of Law, Communications, Demeanor, Diligence, Bias, Strengths, and Weaknesses. The results are shown in both graphs and tables. Each judge’s scores are shown along with a comparison to other judges who serve at the same court level. The comparison group is called “District Judges” on the charts. a. Response rates During the 2015 administration, a total of 13,709 survey invitations were sent to 5,732 attorneys inviting them to evaluate judges and justices standing for retention in 2016. On average, each attorney was asked to evaluate 2.5 judges. 3,738 surveys were completed with an additional 1,818 responses where the attorney indicated that they did not have enough experience with the judge to be comfortable evaluating him or her. The response rate for the survey was 42% and the survey completion rate (the number of those familiar enough to evaluate the judge divided by the total number of attorney responses including those indicating they did not have sufficient familiarity to evaluate the judge) was 67%. b. Methodology The 2015 attorney survey was conducted online beginning on September 16, 2015. Attorneys were first mailed a pre-notification letter sent on September 16, 2015 informing them about the survey and providing a link and login information to access the survey online. Next, a series of three email invitations were sent on September 24th, September 30th, and October 14th. Reminder calls were placed to the offices of selected attorneys in an attempt to increase response rates between November 12th and December 1st. Additional invitations were sent upon request during the reminder calls. Appellate staff attorneys received the same survey as other attorneys, but were invited separately with a series of email invitations starting with the initial invite on October 5th, 2015 and followed by reminders on October 14th and 22nd. To further increase response rates, an additional cycle of data collection took place in January and February 2016. Invitations were emailed to attorneys who had appeared before judges standing for retention in the 3rd and 4th quarters of 2015. The initial invitations were sent on January 19th and reminders were sent on January 29th and February 3rd. c. Questions In the core of the survey, attorneys evaluated district and county judges on 17 aspects of judicial performance and appellate judges on 12 aspects of judicial performance using a grade scale of A, B, C, D, or F. These aspects were grouped by topic into different categories, five for district 2016 Judicial Performance Survey Report for Judge Donna J. Schmalberger 5 ## Page 8 and county judges and two for appellate judges. The district and county categories were: case management, application and knowledge of law, communications, demeanor, and diligence. Questions regarding appellate judges were divided into two categories, one for general questions and one specific to their writing (only asked of those who indicated they had experience with the judge or justice’s written opinions). Respondents were also asked if they considered the judge biased toward the defense or prosecution in criminal cases. In a final question, respondents were asked to indicate how strongly they would recommend that the judge be retained or not retained in office. For this evaluation cycle, the “don’t know enough to make a recommendation” response category was excluded from the retention question. While the formatting and structure of the survey was updated for 2015, the question wording was carried over from the 2014 administration and has remained consistent since 2013. The questions were originally developed in 1998 to meet the criteria outlined in statute 13-5.5-101 et seq. Question Category Areas* Appellate Trial Judge: Judge/Justice Attorney Attorney Survey Survey Question Categories Appellate Judge General Questions 6 Application and Knowledge of Law 5 Case Management 4 Communications 2 Demeanor 3 Diligence 3 Writing 6 Individual Questions Bias 1 Recommendation to Retain 1 1 *The numbers in the table refer to the number of questi ons asked in e ach category by survey group. d. Analysis and Reporting Letter grades were converted to a numerical score where A = 4, B = 3, C = 2, D = 1 and Fail = 0 for analysis. The results include an overall grade, a grade for each category, as well as a grade for each question. The overall score is calculated by averaging the responses to all questions answered by the attorney. This score will have the same numerical range as the individual questions from zero to four. Each category score is calculated by averaging the responses to all questions answered by the attorney within each category. This score will have the same zero to four numerical range as the individual questions. Similarly, an average score is calculated for each individual question with the exception of the bias and retention questions. 2016 Judicial Performance Survey Report for Judge Donna J. Schmalberger 6 ## Page 9 The overall average and category scores will be reported for each judge along with the average scores for the judge’s peers. The average score (with the exceptions noted above) will also be reported for each question along with the peer group score. In addition, the report will include the distribution of responses for each question, i.e. the percentage of attorneys that assigned a rating of A, B, C, D, and F. The distribution of responses is also reported for the questions on bias and retention. e. Comments At the end of each group of questions respondents had the option of leaving comments about the judge’s performance in that area. Respondents were also asked what they considered to be the judge’s strengths and weaknesses and were allowed to leave open-ended responses to each. By statute, these comments are confidential and only provided to the judge and the District Commission on Judicial Performance. They are not released to the public when the rest of the report is released. 2016 Judicial Performance Survey Report for Judge Donna J. Schmalberger 7 ## Page 10 Retention Keeping in mind your responses to each of the previous questions, how strongly do you recommend that Judge Donna J. Schmalberger be retained in office, or not be retained in office? Table 5 Judge Donna J. Schmalberger Total Retain 87% Neither 12% Total Not Retain 0% Figure 3 100% 80% 67% 62% 60% 40% 25% 20% 13% 12% 9% 6% 5% 0% Strongly recommend Somewhat Undecided or don't Somewhat Strongly recommend that he or she be recommend he or know enough to recommend he or he or she not be retained in office she be retained in make a she not be retained retained in office office recommendation in office Judge Schmalberger All District Judges 2016 Judicial Performance Survey Report for Judge Donna J. Schmalberger 8 ## Page 11 Case Management Using a grade scale, where an "A" is excellent along with B, C, D or F for fail, please grade Judge Schmalberger on the following. If, for a specific question you feel that you do not have enough information to grade the judge, please check DK/NA for Don't Know/Not Applicable. Figure 4 3.34 Case Management Overall Average 3.14 3.29 Setting reasonable schedules for cases 3.33 3.32 Promptly ruling on pre-trial motions 3.00 3.38 Maintaining appropriate control over proceedings 3.00 3.41 Promptly issuing a decision on the case after trial 3.22 0.00 1.00 2.00 3.00 4.00 All District Judges Judge Schmalberger Table 6 Case Management Judge Donna J. All Judge Schmalberger A B C D Fail DK/NA District Schmalberger Number of Responses: 9 Judges Promptly issuing a decision 56% 33% -- -- 11% -- 3.22 3.41 on the case after trial Maintaining appropriate 33% 33% 33% -- -- -- 3.00 3.38 control over proceedings Promptly ruling on pre-trial 44% 22% 11% -- 11% 11% 3.00 3.32 motions Setting reasonable 44% 44% 11% -- -- -- 3.33 3.29 schedules for cases Case Management Overall Average 3.14 3.34 2016 Judicial Performance Survey Report for Judge Donna J. Schmalberger 9 ## Page 12 Application and Knowledge of Law Using a grade scale, where an "A" is excellent along with B, C, D or F for fail, please grade Judge Schmalberger on the following. If, for a specific question you feel that you do not have enough information to grade the judge, please check DK/NA for Don't Know/Not Applicable. Figure 5 3.18 Application and Knowledge of Law Overall Average 3.11 3.15 Consistently applying laws and rules 2.78 3.15 Being fair and impartial to both sides of the case 3.33 Issuing consistent sentences when the circumstances 3.06 are similar 0.00 3.15 Basing decisions on evidence and arguments 3.22 3.27 Being able to identify and analyze relevant facts 3.11 0.00 1.00 2.00 3.00 4.00 All District Judges Judge Schmalberger Table 7 Application and Knowledge of Law Judge Donna J. All Judge Schmalberger A B C D Fail DK/NA District Schmalberger Number of Responses: 9 Judges Being able to identify and 44% 33% 11% 11% -- -- 3.11 3.27 analyze relevant facts Basing decisions on evidence 56% 33% -- -- 11% -- 3.22 3.15 and arguments Issuing consistent sentences when the circumstances are -- -- -- -- -- -- 0.00 3.06 similar Being fair and impartial to both 56% 22% 22% -- -- -- 3.33 3.15 sides of the case Consistently applying laws 33% 33% 22% -- 11% -- 2.78 3.15 and rules Application and Knowledge of Law Overall Average 3.11 3.18 2016 Judicial Performance Survey Report for Judge Donna J. Schmalberger 10 ## Page 13 Communications Using a grade scale, where an "A" is excellent along with B, C, D or F for fail, please grade Judge Schmalberger on the following. If, for a specific question you feel that you do not have enough information to grade the judge, please check DK/NA for Don't Know/Not Applicable. Figure 6 3.39 Communications Overall Average 3.44 Providing written communications that are clear, 3.28 thorough and well reasoned 3.43 Making sure all participants understand the 3.51 proceedings 3.44 0.00 1.00 2.00 3.00 4.00 All District Judges Judge Schmalberger Table 8 Communications Judge Donna J. All Judge Schmalberger A B C D Fail DK/NA District Schmalberger Number of Responses: 9 Judges Making sure all participants 67% 11% 22% -- -- -- 3.44 3.51 understand the proceedings Providing written communications that are 56% -- 22% -- -- 22% 3.43 3.28 clear, thorough and well reasoned Communications Overall Average 3.44 3.39 2016 Judicial Performance Survey Report for Judge Donna J. Schmalberger 11 ## Page 14 Demeanor Using a grade scale, where an "A" is excellent along with B, C, D or F for fail, please grade Judge Schmalberger on the following. If, for a specific question you feel that you do not have enough information to grade the judge, please check DK/NA for Don't Know/Not Applicable. Figure 7 3.34 Demeanor Overall Average 3.71 3.26 Conducting his/her courtroom in a neutral manner 3.50 3.33 Treating participants with respect 3.75 3.43 Giving proceedings a sense of dignity 3.88 0.00 1.00 2.00 3.00 4.00 All District Judges Judge Schmalberger Table 9 Demeanor Judge Donna J. Schmalberger All Judge A B C D Fail DK/NA District Number of Responses: 8 Schmalberger Judges Giving proceedings a sense of 88% 13% -- -- -- -- 3.88 3.43 dignity Treating participants with respect 75% 25% -- -- -- -- 3.75 3.33 Conducting his/her courtroom in a 63% 25% 13% -- -- -- 3.50 3.26 neutral manner Demeanor Overall Average 3.71 3.34 2016 Judicial Performance Survey Report for Judge Donna J. Schmalberger 12 ## Page 15 Diligence Using a grade scale, where an "A" is excellent along with B, C, D or F for fail, please grade Judge Schmalberger on the following. If, for a specific question you feel that you do not have enough information to grade the judge, please check DK/NA for Don't Know/Not Applicable. 3.27 Diligence Overall Average 3.48 Being willing to handle cases on the docket even when 3.38 they are complicated and time consuming 3.43 Doing the necessary “homework” and being prepared 3.32 for cases 3.62 Using good judgment in application of relevant law 3.16 and rules 3.50 0.00 1.00 2.00 3.00 4.00 All District Judges Judge Schmalberger Table 10 Diligence Judge Donna J. Schmalberger All Judge A B C D Fail DK/NA District Number of Responses: 8 Schmalberger Judges Using good judgment in application of 63% 25% 13% -- -- -- 3.50 3.16 relevant law and rules Doing the necessary “homework” and 63% 38% -- -- -- -- 3.62 3.32 being prepared for cases Being willing to handle cases on the docket even when they are complicated and time 50% 25% 13% -- -- 13% 3.43 3.38 consuming Diligence Overall Average 3.48 3.27 2016 Judicial Performance Survey Report for Judge Donna J. Schmalberger 13 ## Page 16 Bias Having observed Judge Schmalberger in a criminal case, would you say the judge is: Figure 8 1 0.8 0.6 51% 0.4 23% 0.2 11% 11% 5% 0 Very biased in favor Somewhat biased in Completely Neutral Somewhat biased in Very biased in favor of the prosecution favor of the favor of the defense of the defense prosecution Judge Schmalberger All District Judges 2016 Judicial Performance Survey Report for Judge Donna J. Schmalberger 14 ## Page 17 Survey of Appellate Judges Methodology and How to Read Results For Judge Schmalberger, 21 qualified survey respondents submitted surveys. Of those who responded, 21 agreed they had worked with Judge Schmalberger enough to evaluate her performance. This report reflects these 21 responses. a. Response rates Invitations were sent via email to all 28 Supreme Court justices and Court of Appeals judges. Of these, 23 responded and 21 completed the survey. The response rate was 82% and the completion rate was 91%. b. Methodology Appellate judges were surveyed evaluate the performance of district judges. This evaluation of district judges was conducted via an online survey hosted in the Qualtrics research suite survey software. The initial invitation was sent on November 4, 2015. A reminder email to those that had not already completed their evaluations was sent on November 16th. c. Questions Due to the large number of judges being evaluated, the district judge evaluation survey consisted of a single question pertaining to each judge. Appellate judges and justices were asked to evaluate the district judge’s overall performance as a judge on a grade scale of A-F with A being “Excellent” and F being “Fail”. In the survey, the district judges being evaluated were grouped by district with the districts presented in random order to reduce bias. d. Analysis Letter grades were then converted to a numerical score where A = 4, B = 3, C = 2, D = 1 and Fail = 0 for analysis. The overall score is calculated by averaging the responses to all questions answered. This score will have the same numerical range as the individual questions from zero to four. The overall average will be reported for each judge along with the average scores for the judge’s peers. In addition, the report will include the distribution of responses for each question. That is, the percentage of attorneys that assigned a rating of A, B, C, D, and F. 2016 Judicial Performance Survey Report for Judge Donna J. Schmalberger 15 ## Page 18 e. Comments Respondents were given the option to leave supporting comments in a box next to where they graded each judge. By statute, these comments are confidential and only provided to the judge and the District Commission on Judicial Performance. They are not released to the public when the rest of the report is released. 2016 Judicial Performance Survey Report for Judge Donna J. Schmalberger 16 ## Page 19 Results Using a grade scale, where "A" is excellent along with B,C,D, or F for fail, please grade the following district judges in terms of each one's overall performance as a judge by selecting the appropriate letter grade. If you feel that you don't have enough information about a judge to mark a specific grade, please select "No Grade". Figure 9 All District Judges 3.55 Judge Schmalberger 3.58 0.00 1.00 2.00 3.00 4.00 Table 11 Evaluation by Appellate Court Judges Judge Donna J. All Schmalberger Judge A B C D Fail DK/NA District Number of Schmalberger Judges Responses: 12 Overall performance as a 33% 24% -- -- -- 43% 3.58 3.55 judge 2016 Judicial Performance Survey Report for Judge Donna J. Schmalberger 17 ## Page 20 Survey of Non Attorneys Methodology and How to Read Results For Judge Donna J. Schmalberger, 14 qualified survey respondents submitted surveys. Of those who responded, 8 agreed they had worked with Judge Schmalberger enough to evaluate her performance. This report reflects these 8 responses. a. Response rates During the 2015 administration, 1,697 survey invitations have been sent to court staff members and 68,393 to other non-attorneys. Among court staff, 787 complete surveys have been received and an additional 192 indicated that they did not have enough experience to evaluate the judge. The response rate among court staff is 58% and the completion rate is 80%. Among other non-attorneys, 4,338 complete surveys have been received and an additional 1,123 indicated that they did not have enough experience to evaluate the judge. The response rate among other non-attorneys is 11% and the completion rate is 80%. b. Methodology The 2015 non-attorney survey was conducted via a mixed mode online and mail survey beginning September 24, 2015 and ending on February 22nd, 2016. Due to the ability to contact court staff via email, respondents were split into two groups for data collection: court staff and other non-attorneys. The court staff group includes staff members, interpreters and probation officers. The other non-attorney group includes jurors, defendants, witnesses, litigants, and law enforcement personnel. Court staff members were invited via emailed invitations sent on October 5th and a reminder sent on October 14th. Other non-attorneys where no email addresses were available were first mailed a pre- notification letter sent on September 24th informing them about the survey and providing a link and login information to access the survey online. This was followed up with a second mailing that also included the information to access the survey online, as well as a full printed survey booklet and postage-paid return envelope. This second mailing was sent on October 19, 2015. The process for other non-attorneys was repeated in January and February 2016 for those that had experience with judges standing for retention in the 3rd and 4th quarters of 2015. For this cycle, the order of the mailings was switched due to the constraints of the reporting schedule. The first mailing, sent on January 22nd, included the full survey booklet and a return mailing envelope as well as instructions to access the survey online. The second mailing, sent on February 12th, included only a letter with instructions to complete the survey online and reminded them of the survey closing on February 22nd. 2016 Judicial Performance Survey Report for Judge Donna J. Schmalberger 18 ## Page 21 c. Questions: Respondents evaluated judges on 19 aspects of judicial performance using a grade scale of A, B, C, D, or Fail. Respondents were also asked if they considered the judge biased toward the defense or prosecution in criminal cases. Non-attorneys were also asked to evaluate the appropriateness of the sentencing. In a final question, respondents were asked to indicate how strongly they would recommend that the judge be retained or not retained in office. For this evaluation cycle, the “don’t know enough to make a recommendation” response category was excluded from the retention question. Question Category Areas* Other Non- Court Staff attorneys Question Categories Application of Law 3 3 Communications 3 3 Demeanor 4 4 Diligence 5 5 Fairness 4 4 Individual Questions Bias 1 1 Appropriateness of Sentence 1 1 Recommendation to Retain 1 1 *The numbers in the table refer to the number of questi ons asked in ea ch category by survey group. d. Analysis and Reporting Letter grades were then converted to a numerical score where A = 4, B = 3, C = 2, D = 1 and Fail = 0 for analysis. The results include an overall grade, a grade for each category, as well as a grade for each question. The overall score is calculated by averaging the responses to all questions answered. This score will have the same numerical range as the individual questions from zero to four. Each category score is calculated by averaging the responses to all questions answered by the attorney with each category. This score will have the same numerical range as the individual questions from zero to four. Similarly, an average score is calculated for each individual question with the exception of the bias and retention questions. The overall average and category scores will be reported for each judge along with the average scores for the judge’s peers. The average score (with exceptions noted above) will also be reported for each question, along with the peer group score. In addition, the report will include the distribution of responses for each question. That is, the percentage of attorneys that assigned a rating of A, B, C, D, and F. The distribution of responses are also reported for the questions on bias and retention as well as appropriateness of sentences. e. Comments: 2016 Judicial Performance Survey Report for Judge Donna J. Schmalberger 19 ## Page 22 At the end of each group of questions, respondents had the option of leaving comments about the judge’s performance in that area. Respondents were also asked what they considered to be the judge’s strengths and weaknesses and allowed to leave open ended responses to each. By statute, these comments are confidential and only provided to the judge and the District Commission on Judicial Performance. They are not released to the public when the rest of the report is released. 2016 Judicial Performance Survey Report for Judge Donna J. Schmalberger 20 ## Page 23 Retention Keeping in mind your responses to each of the previous questions, how strongly do you recommend that Judge Schmalberger be retained in office, or not retained in office? Table 12 Judge Donna J. Schmalberger Total Retain 37% Neither 25% Total Not Retain 37% Figure 10 100% 80% 74% 60% 40% 25% 25% 25% 20% 12% 12% 12% 6% 6% 3% 0% Strongly recommend Somewhat Undecided or don't Somewhat Strongly recommend that he or she be recommend he or know enough to recommend he or he or she not be retained in office she be retained in make a she not be retained retained in office office recommendation in office Judge Schmalberger All District Judges 2016 Judicial Performance Survey Report for Judge Donna J. Schmalberger 21 ## Page 24 Demeanor Using a grade scale, where an “A” is excellent along with B, C, D or F for fail, please grade the judge on the following. (If you feel that you don’t have experience with the judge in a specific area, or just don’t know, please mark “Don’t Know/Not Applicable”—DK/NA). Figure 11 3.61 Demeanor Overall Average 2.60 Having a sense of compassion and human 3.54 understanding for those who appear before him/her 2.38 3.58 Conducting his/her courtroom in a neutral manner 2.38 3.65 Treating participants with respect 2.88 3.66 Giving proceedings a sense of dignity 2.86 0.00 1.00 2.00 3.00 4.00 All District Judges Judge Schmalberger Table 13 Demeanor Judge Donna J. Schmalberger All Judge A B C D Fail DK/NA District Number of Responses: 8 Schmalberger Judges Giving proceedings a sense of dignity 29% 29% 43% -- -- -- 2.86 3.66 Treating participants with respect 25% 38% 38% -- -- -- 2.88 3.65 Conducting his/her courtroom in a neutral 13% 13% 75% -- -- -- 2.38 3.58 manner Having a sense of compassion and human understanding for those who appear before 13% 25% 50% 13% -- -- 2.38 3.54 him/her Demeanor Overall Average 2.60 3.61 2016 Judicial Performance Survey Report for Judge Donna J. Schmalberger 22 ## Page 25 Fairness Using a grade scale, where an “A” is excellent along with B, C, D or F for fail, please grade the judge on the following. (If you feel that you don’t have experience with the judge in a specific area, or just don’t know, please mark “Don’t Know/Not Applicable”—DK/NA). Figure 12 3.60 Fairness Overall Average 2.68 Giving each side enough time to present his or her 3.64 case 2.57 3.63 Treating fairly people who represent themselves 2.67 3.55 Treating those involved in the case without bias 2.38 3.63 Giving participants an opportunity to be heard 3.14 0.00 1.00 2.00 3.00 4.00 All District Judges Judge Schmalberger Table 14 Fairness Judge Donna J. All Judge Schmalberger A B C D Fail DK/NA District Schmalberger Number of Responses: 8 Judges Giving participants an 29% 57% 14% -- -- -- 3.14 3.63 opportunity to be heard Treating those involved in 13% 13% 75% -- -- -- 2.38 3.55 the case without bias Treating fairly people who 13% 25% 38% -- -- 25% 2.67 3.63 represent themselves Giving each side enough time to present his or her -- 50% 38% -- -- 13% 2.57 3.64 case Fairness Overall Average 2.68 3.60 2016 Judicial Performance Survey Report for Judge Donna J. Schmalberger 23 ## Page 26 Communications Using a grade scale, where an “A” is excellent along with B, C, D or F for fail, please grade the judge on the following. If you feel that you don’t have experience with the judge in a specific area, or just don’t know, please mark “Don’t Know/Not Applicable”—DK/NA. Figure 13 3.71 Communications Overall Average 2.79 Speaking clearly so everyone in the courtroom can 3.75 hear what’s being said 3.00 3.71 Using language that everyone can understand 2.75 Making sure all participants understand the 3.67 proceedings 2.62 0.00 1.00 2.00 3.00 4.00 All District Judges Judge Schmalberger Table 15 Communications Judge Donna J. Schmalberger All Judge A B C D Fail DK/NA District Number of Responses: 8 Schmalberger Judges Making sure all participants understand the 25% 13% 63% -- -- -- 2.62 3.67 proceedings Using language that everyone can understand 13% 50% 38% -- -- -- 2.75 3.71 Speaking clearly so everyone in the courtroom 38% 25% 38% -- -- -- 3.00 3.75 can hear what’s being said Communications Overall Average 2.79 3.71 2016 Judicial Performance Survey Report for Judge Donna J. Schmalberger 24 ## Page 27 Diligence Using a grade scale, where an “A” is excellent along with B, C, D or F for fail, please grade the judge on the following. If you feel that you don’t have experience with the judge in a specific area, or just don’t know, please mark “Don’t Know/Not Applicable”—DK/NA. Figure 14 3.62 Diligence Overall Average 2.75 Managing court proceedings so that there is little 3.57 wasted time 2.29 3.63 Setting reasonable schedules for cases 2.29 3.71 Maintaining appropriate control over proceedings 2.38 Doing the necessary “homework” and being prepared 3.68 for cases 3.38 3.60 Beginning court on time 3.29 0.00 1.00 2.00 3.00 4.00 All District Judges Judge Schmalberger Table 16 Diligence Judge Donna J. Schmalberger All Judge A B C D Fail DK/NA District Number of Responses: 8 Schmalberger Judges Beginning court on time 50% 25% -- 13% -- 13% 3.29 3.60 Doing the necessary “homework” and 50% 38% 13% -- -- -- 3.38 3.68 being prepared for cases Maintaining appropriate control over 25% 25% 13% 38% -- -- 2.38 3.71 proceedings Setting reasonable schedules for cases 13% 25% 25% 25% -- 13% 2.29 3.63 Managing court proceedings so that there 13% 38% -- 38% -- 13% 2.29 3.57 is little wasted time Diligence Overall Average 2.75 3.62 2016 Judicial Performance Survey Report for Judge Donna J. Schmalberger 25 ## Page 28 Application of Law Using a grade scale, where an “A” is excellent along with B, C, D or F for fail, please grade the judge on the following. If you feel that you don’t have experience with the judge in a specific area, or just don’t know, please mark “Don’t Know/Not Applicable”—DK/NA. Figure 15 3.56 Application and Knowledge of Law Overall Average 2.71 3.55 Being able to identify and analyze relevant facts 2.71 Willing to make decision without regard to possible 3.56 outside pressure 2.71 3.58 Giving reasons for rulings 2.67 0.00 1.00 2.00 3.00 4.00 All District Judges Judge Schmalberger Table 17 Application of Law Judge Donna J. All Judge Schmalberger A B C D Fail DK/NA District Schmalberger Number of Responses: 7 Judges Giving reasons for rulings 13% 25% 38% -- -- 25% 2.67 3.58 Willing to make decision without regard to possible 13% 38% 38% -- -- 13% 2.71 3.56 outside pressure Being able to identify and 13% 50% 13% 13% -- 13% 2.71 3.55 analyze relevant facts Application and Knowledge of Law Overall Average 2.71 3.56 2016 Judicial Performance Survey Report for Judge Donna J. Schmalberger 26 ## Page 29 Bias On the scale below, please indicate by selecting the appropriate number how biased you think Judge Schmalberger is toward the defense or the prosecution. If you feel Judge Schmalberger is completely unbiased, select “0.” Figure 16 100% 82% 80% 60% 50% 38% 40% 20% 13% 4% 5% 4% 4% 0% Very biased in favor Somewhat biased in Completely Neutral Somewhat biased in Very biased in favor of the prosecution favor of the favor of the defense of the defense prosecution Judge Schmalberger All District Judges 2016 Judicial Performance Survey Report for Judge Donna J. Schmalberger 27 ## Page 30 Perception of Leniency or Harshness On the scale below, please indicate by selecting the appropriate number how lenient or how harsh you think the sentences generally handed down by Judge Schmalberger are. If you feel Judge Schmalberger generally hands down appropriate sentences, circle “0.” Figure 17 100% 82% 80% 75% 60% 40% 20% 13% 13% 7% 3% 4% 4% 0% Sentences too Light 2.00 Sentences are 4.00 Sentences are too Appropriate Harsh Judge Schmalberger All District Judges 2016 Judicial Performance Survey Report for Judge Donna J. Schmalberger 28
- 2010 cycle
- 2009 Interim Survey Report(PDF on OJPE)
Read full interim survey textexpand
## Page 1 State of Colorado Logo COMMISSION ON JUDICIAL PERFORMANCE TThhee HHoonnoorraabbllee DDoonnnnaa JJ.. SScchhmmaallbbeerrggeerr 2009 Interim Judicial Performance Survey 2nd Judicial District ## Page 2 September 24, 2009 The Honorable Donna J. Schmalberger City & County Bldg. 1437 Bannock St., Room 256 Denver, CO 80202 Dear Judge Schmalberger: This year, The State Commission on Judicial Performance has requested Talmey- Drake Research & Strategy to provide interim survey reports concerning all justices and judges. Going forward, there will continue to be survey reports on retention judges in retention election years and interim survey reports on all judges in non- retention years. Talmey-Drake Research & Strategy conducted the 2009 Interim Judicial Performance Survey among people who have been in a state courtroom in once capacity or another, or who have otherwise been affected by the performance of a judge. This report contains the results of those who have observed, or who are knowledgeable about, your judicial performance and who responded to the survey. In addition to this introduction, the report is divided into four main sections: Attorney Results & Comments: This section contains graphs displaying the average grade you received for each question that used an “A” to “F” scale, the average grade for each section of the questionnaire, and an overall average grade for questions 1a through 5c combined. Following the graphs, are a series of tables showing the percentage distribution of grades to each question. Attorney respondents were also asked to comment about your performance. These comments have been transcribed, and in some instances, redacted to eliminate respondent identifying information. The survey of attorneys was conducted online; a copy of the questionnaire is provided at the back of this report. Non-attorney Results & Comments: Similar to the attorney section, this portion of the report contains graphs (again including the overall average of questions 1a through 5c on the non-attorney questionnaire), tables of the percentage distribution of grades for each substantive question in the survey. The non-attorney respondents were also asked to comment about your performance. Again, these comments have been transcribed, and in some instances redacted to eliminate respondent identifying information. A copy of the non-attorney questionnaire is also at the back of this report. 100 Arap ahoe, Suite One, Boulder, CO 80302 Phone 303.443.5300 Fax 303.447.9386 ## Page 3 The Honorable Donna J. Schmalberger September 24, 2009 Page 2 Methodology: The third section of the report discusses the methodology of the survey. Questionnaires: And the final section provides copies of the questionnaires that were used. If you have any questions about the methodology and how the survey was conducted, please feel free to contact me at 303-443-5300 ext 1, and for any other questions you might have about the survey please call the Executive Director of the Office of Judicial Performance Evaluation, Jane Howell, at 303-837-3665. Best regards, Paul A. Talmey President enc: ## Page 4 SSuurrvveeyy ooff AAtoorrnneeyyss RReeggaarrddiinngg JJuuddggee DDoonaa JJ.. SScchhmmaallbbeerrggeerr ((SSaammppllee SSiizzee 1177)) ## Page 5 Survey of Attorneys Regarding Trial Judges Average Judge Donna J. Schmalberger Donna J. All District Sample Size = 17 A B C D Fail DK/NA Schmalberger Judges 1. Case Management: 1a. Promptly issuing a decision on the case after trial. 47% 41% 6% 0% 0% 6% 3.44 3.38 1b. Maintaining appropriate control over proceedings. 12% 47% 24% 12% 6% 0% 2.47 3.39 1c. Promptly ruling on pre-trial motions. 35% 35% 24% 0% 0% 6% 3.12 3.19 1d. Setting reasonable schedules for cases. 35% 12% 18% 24% 12% 0% 2.35 3.22 Overall Case Management 2.85 3.30 2. Application and Knowledge of Law: 2a. Being able to identify and analyze relevant facts. 18% 41% 29% 12% 0% 0% 2.65 3.28 2b. Basing decisions on evidence and arguments. 6% 29% 41% 18% 0% 6% 2.25 3.16 2c. Willing to reconsider error in fact or law. 6% 24% 18% 12% 18% 24% 1.85 2.89 2d. Issuing consistent sentences when the circumstances are 0% 75% 0% 0% 0% 25% 3.00 3.07 similar. Overall Application and Knowledge of Law 2.44 3.10 3. Communications: 3a. Making sure all participants understand the proceedings. 56% 31% 12% 0% 0% 0% 3.44 3.51 3b. Providing written communications that are clear, thorough 21% 29% 14% 0% 0% 36% 3.11 3.28 and well reasoned. Overall Communications 3.28 3.40 4. Demeanor: 4a. Giving proceedings a sense of dignity. 31% 38% 19% 6% 6% 0% 2.81 3.46 4b. Treating parties with respect. 44% 25% 6% 12% 12% 0% 2.75 3.35 4c. Conducting his/her courtroom in a neutral manner. 19% 25% 38% 19% 0% 0% 2.44 3.25 4d. Consistently applying laws and rules. 6% 38% 38% 12% 0% 6% 2.40 3.21 Overall Demeanor 2.60 3.32 5. Diligence: 5a. Using good judgment in application of relevant law and 19% 25% 44% 12% 0% 0% 2.50 3.15 rules. 5b. Doing the necessary homework and being prepared for 38% 38% 12% 6% 0% 6% 3.13 3.28 his/her cases. 5c. Being willing to handle cases on the docket even when 50% 0% 31% 6% 0% 12% 3.07 3.35 they are complicated and time consuming. Overall Diligence 2.90 3.26 Overall Average Grade: 2.75 3.26 2009 Interim Judicial Performance Survey 2 ## Page 6 Survey of Attorneys Regarding Trial Judges Percentage Judge Donna J. Schmalberger Donna J. All District Schmalberger Judges Sample Size = 17 Would you say the judge is: Very biased in favor of the prosecution 0% 11% Somewhat biased in favor of the prosecution 0% 28% Completely neutral 0% 46% Somewhat biased in favor of the defense 100% 9% Very biased in favor of the defense 0% 2% Don't know/not sure 0% 4% 8. How strongly do you recommend that the Judge be retained or not retained in office? [Percentages excluding undecided responses.] Strongly recommend retain in office 31% 71% Somewhat recommend retain in office 38% 16% Somewhat recommend not retain in office 6% 6% Strongly recommend not retain in office 25% 7% Total Retain 69% 87% Total Not Retain 31% 13% [Percentages including undecided responses.] Strongly recommend retain in office 29% 68% Somewhat recommend retain in office 35% 15% Undecided or dont know enough to make recommendation 6% 5% Somewhat recommend not retain in office 6% 6% Strongly recommend not retain in office 24% 6% Total Retain 64% 83% Undecided/Don't Know 6% 5% Total Not Retain 30% 12% 2009 Interim Judicial Performance Survey 3 ## Page 7 Judge Donna J. Schmalberger Survey of Attorneys Regarding Trial Judges Average Grades 2.75 Overall Average Grade 3.26 Q1. Overall Case Management 2.85 3.30 1a. Promptly issuing a decision on the 3.44 case after trial. 3.38 1b. Maintainingappropriate control over 2.47 proceedings. 3.39 3.12 1c. Promptlyruling on pre-trial motions. 3.19 1d.Setting reasonable schedules for cases. 2.35 3.22 2.44 Q2. OverallApp & Knowledge of Law 3.10 2a. Beingable to identify and analyze 2.65 relevant facts. 3.28 2b.Basing decisions on evidence and argument. 2.25 3.16 2c. Willing to reconsider error in fact or law. 2.89 2d. [Criminal only] Issuing consistant sentences 3.00 whencircumstances are simmilar. 3.07 3.28 Q3. Overall Communication 3.40 3a.Making sure all participants understand 3.44 the proceedings. 3.51 3b. Providing written communications that are 3.11 clear, thorough and well reasoned. 3.28 2.0 2.5 3.0 3.5 4.0 Donna J. Schmalberger All District Judges Judg 2e00 D9 Inotenrimn Jaud icJia.l PSercforhmamncea Slubrveeyrger 4 ## Page 8 Judge Donna J. Schmalberger Survey of Attorneys Regarding Trial Judges Average Grades 2.60 Q4. Overall Demeanor 3.32 2.81 4a. Giving proceedingsa sense of dignity. 3.46 2.75 4b. Treating participants with respect. 3.35 4c. Conducting [his/her] courtroom 2.44 in a neutral manner. 3.25 2.40 4d. Consistanly applyinglaws and rules 3.21 2.90 Q5. Overall Diligence 3.26 5a. Using good judgement in application of 2.50 releveant laws and rules. 3.15 5b. Doing the necessary 'homework' and 3.13 being prepared for [his/her] cases. 3.28 5c. Being willing to handle cases on the docket even 3.07 when they are complicated and time consuming. 3.35 2.0 2.5 3.0 3.5 4.0 Biased in favor of prosecution/defense. 0% Very biased in favor of the prosecution 11% 0% Somewhat biased in favor of the prosecution 28% 0% Completely Neutral 46% 100% Somewhat biased in favor of the defense 9% 0% Very biased in favor of the defense 2% 0% Don't know/not sure 4% 0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100% 110% Donna J. Schmalberger All District Judges 2009 Interim Judicial Performance Survey 5 ## Page 9 Judge Donna J. Schmalberger Survey of Attorneys Regarding Trial Judges Q8. How strongly do you recommend that Judge Schmalberger be retained or not retained in office? Excluding Undecided Respondents 31% Strongly recommend retain in office 71% 38% Somewhat recommend retain in office 16% Judge All Dist Schmalberger Judges 6% Total Retain 69% 87% Somewhat recommend not retain in office Total Not Retain 31% 13% 6% 25% Strongly recommend not retain in office 7% 0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100% Including Undecided Respondents 29% Strongly recommend retain in office 68% 35% Somewhat recommend retain in office 15% Judge All Dist 6% Schmalberger Judges Undecided 5% Total Retain 64% 83% Undecided 6% 5% 6% Somewhat recommend not retain in office Total Not Retain 30% 12% 6% 24% Strongly recommend not retain in office 6% 0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100% Donna J. Schmalberger All District Judges 2009 Interim Judicial Performance Survey 6 ## Page 10 SSuurrvveeyy ooff NNoonn--AAtoorrnneeyyss RReeggaarrddiinngg JJuuddggee DDoonaa JJ.. SScchhmmaallbbeerrggeerr ((SSaammppllee SSiizzee 3311)) ## Page 11 Survey of Non-Attorneys Regarding Trial Judges Average Judge Donna J. Schmalberger Donna J. All District Sample Size = 31 A B C D Fail DK/NA Schmalberger Judges 1. Demeanor: 1a. Giving court proceedings a sense of dignity. 58% 32% 10% 0% 0% 0% 3.48 3.67 1b. Treating participants in the case politely and with respect. 65% 23% 6% 6% 0% 0% 3.45 3.67 1c. Conducting court in a neutral manner. 59% 24% 3% 10% 3% 0% 3.24 3.62 1d. Having a sense of compassion and human understanding 63% 17% 10% 7% 3% 0% 3.30 3.55 for those who appear before the court. Overall Demeanor 3.37 3.63 2. Fairness: 2a. Giving participants an opportunity to be heard. 63% 20% 13% 3% 0% 0% 3.43 3.64 2b. Treating those involved in the case without bias. 68% 10% 3% 13% 3% 3% 3.30 3.60 2c. Treating fairly people who represent themselves. 57% 7% 0% 3% 3% 30% 3.57 3.61 2d. Giving each side enough time to present his or her case. 65% 23% 6% 6% 0% 0% 3.45 3.64 Overall Fairness 3.44 3.62 3. Communications: 3a. Making sure participants understand the proceedings, and 61% 26% 13% 0% 0% 0% 3.48 3.69 what is going on in the courtroom. 3b. Using language that everyone can understand. 71% 19% 10% 0% 0% 0% 3.61 3.71 3c. Speaking clearly so everyone in the courtroom can hear 77% 10% 13% 0% 0% 0% 3.65 3.73 what is being said. Overall Communications 3.58 3.71 4. Diligence: 4a. Beginning court on time 57% 27% 10% 7% 0% 0% 3.33 3.50 4b. Maintaining appropriate control over proceedings. 65% 29% 6% 0% 0% 0% 3.58 3.73 4c. Setting reasonable schedules for cases. 53% 17% 17% 10% 0% 3% 3.17 3.61 4d. Being prepared for cases. 63% 20% 10% 3% 0% 3% 3.48 3.67 4e. Managing court proceedings so that there is little wasted 50% 23% 13% 13% 0% 0% 3.10 3.55 time. Overall Diligence 3.33 3.61 5. Application of Law: 5a. Giving reasons for rulings. 58% 10% 13% 10% 0% 10% 3.29 3.56 5b. Willing to make decisions without regard to possible 47% 17% 10% 10% 0% 17% 3.20 3.59 outside pressure. 5c. Being able to identify and analyze relevant facts. 58% 13% 13% 6% 3% 6% 3.24 3.58 Overall Application of Law 3.24 3.58 Overall Average Grade: 3.39 3.63 2009 Interim Judicial Performance Survey 8 ## Page 12 Survey of Non-Attorneys Regarding Trial Judges Percentage Judge Donna J. Schmalberger Donna J. All District Schmalberger Judges Sample Size = 31 6. Average bias [Please see the questionnaire at the end of report for question wording.] Biased in favor of the prosecution total 30% 11% Competely neutral 59% 84% Biased in favor of the defense total 12% 7% [A positive average indicates bias toward prosecution, and a Average 0.71 0.11 negative average indicates a bias toward the defense.] 7. Average sentencing [Please see the questionnaire at the end of report for question wording.] Harsh sentencing total 39% 11% Competely neutral 46% 80% Lenient sentencing total 15% 10% [A positive average indicates sentences are harsh, and a Average 0.77 0.12 negative average indicates sentences are lenient.] 10. Retain percentage without undecideds. [Percentages excluding undecided responses.] Strongly recommend retain in office 71% 87% Somewhat recommend retain in office 8% 6% Somewhat recommend not retain in office 8% 2% Strongly recommend not retain in office 12% 5% Total Retain 79% 93% Total Not Retain 20% 7% [Percentages including undecided responses.] Strongly recommend retain in office 63% 82% Somewhat recommend retain in office 7% 6% Undecided or dont know enough to make recommendation 11% 6% Somewhat recommend not retain in office 7% 2% Strongly recommend not retain in office 11% 4% Total Retain 70% 88% Undecided/Don't Know 11% 6% Total Not Retain 18% 6% 2009 Interim Judicial Performance Survey 9 ## Page 13 Judge Donna J. Schmalberger Survey of Non-Attorneys Regarding Trial Judges Average Grades 3.39 Overall Average Grade 3.63 3.37 Q1. Overall Demeanor 3.63 3.48 1a. Giving proceedings a sense of dignity. 3.67 1b. Treating participants politely and with respect. 3.45 3.67 1c. Conducting the courtroom in a neutral 3.24 manner. 3.62 1d. Having a sense of compassion and human 3.30 understanding for those who appear before the judge 3.55 3.44 Q2. Overall Fairness 3.62 2a. Giving participants an opportunity to be 3.43 heard. 3.64 2b. Treating those involved in the 3.30 case without bias. 3.60 2c. Treats people fairly who represent 3.57 themselves. 3.61 2d. Giving each side enough time to present his 3.45 or her case. 3.64 3.58 Q3. Overall Communtications 3.71 3a. Making sure participants understand the 3.48 proceedings, and what's going on in the courtroom. 3.69 3b. Using language that everyone can 3.61 understand. 3.71 3c. Speaking clearly so everyone in the courtroom 3.65 can hear what's being said. 3.73 2.0 2.5 3.0 3.5 4.0 Donna J. Schmalberger All District Judges Judg 2e00 9D Inoternimn Juadi cJial. P Serfcormhamncea Slubrveeyrger 10 ## Page 14 Judge Donna J. Schmalberger Survey of Non-Attorneys Regarding Trial Judges Average Grades 3.33 Q4. Overall Diligence 3.61 3.33 4a. Beginning court on time. 3.50 4b. Maintaining appropriate control over 3.58 proceedings. 3.73 4c. Setting reasonable schedules for cases. 3.17 3.61 4d. Being prepared for his or her cases. 3.48 3.67 4e. Managing court proceedings so that there is 3.10 little wasted time. 3.55 3.24 Q5. Overall Legal Ability 3.58 5a. Giving reasons for rulings. 3.29 3.56 5b. Willing to make decision without regard to 3.20 possible outside pressure. 3.59 5c. Being able to identify and analyze 3.24 relevant facts. 3.58 2.0 2.5 3.0 3.5 4.0 Q6 Biased in favor of prosecution/defense. 0.71 Donna J. Schmalberger 0.11 All District Judges -5 -4 -3 -2 -1 0 1 2 3 4 5 Defense Prosecution Q7 Lenience or Harshness in Sentencing. 0.77 Donna J. Schmalberger 0.12 All District Judges -5 -4 -3 -2 -1 0 1 2 3 4 5 Lenient Harsh Donna J. Schmalberger All District Judges 2009 Interim Judicial Performance Survey 11 ## Page 15 Donna J. Schmalberger All District Judges Judge Donna J. Schmalberger Survey of Non-Attorneys Regarding Trial Judges Q10. How strongly do you recommend that Judge Schmalberger be retained or not retained in office? Excluding Undecided Respondents 71% Strongly recommend retain in office 87% 8% Somewhat recommend retain in office 6% Judge All Dist Schmalberger Judges Total Retain 79% 93% 8% Somewhat recommend not retain in office Total Not Retain 20% 7% 2% 12% Strongly recommend not retain in office 5% 0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100% Including Undecided Respondents 63% Strongly recommend retain in office 82% 7% Somewhat recommend retain in office 6% 11% Judge All Dist Undecided 6% Schmalberger Judges Total Retain 70% 88% 7% Undecided 11% 6% Somewhat recommend not retain in office 2% Total Not Retain 18% 6% 11% Strongly recommend not retain in office 4% 0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100% Donna J. Schmalberger All District Judges 2009 Interim Judicial Performance Survey 12 ## Page 16 MMeetthhooddoollooggyy ## Page 17 MMeetthhooddoollooggyy Data Sources for Sample Talmey-Drake Research & Strategy received case data that included the names of people who had likely been in each judge’s courtroom between July 1, 2008 and March 31, 2009 from five primary sources: Colorado Judicial Department, Colorado District Attorneys’ Council Denver County Courts District Attorney’s Office, Second Judicial District (Denver) District Attorney’s Office, Ninth Judicial District Additional information was provided by the State Public Defender’s Office and the District Attorney’s Office, 15th Judicial District. The data from these different data sources were then combined, duplicates removed and addresses corrected. Talmey-Drake then conducted two separate surveys for the 2009 Colorado Interim Judicial Performance Survey concerning district judges: A survey of attorneys and a survey of non-attorneys who had likely been in District Court. Responses to surveys conducted in prior years that had not been used in a previous Judicial Performance report were combined with the above data to create the total sample used in the 2009 Interim Judicial Performance Survey. Attorney Survey Attorney Sample: Talmey-Drake identified all the attorneys who were in the data provided by the organizations listed above, and all identified attorneys were included in the sample. As to be expected many attorneys had appeared in more than one judge’s courtroom, so each attorney was assigned from one to five judges to evaluate, depending on how many different judges with whom he or she was associated in the case data. For those attorneys who were in the case data for more than five judges, they were asked to evaluate the five judges they were associated with the most. 2009 Interim Judicial Performance Survey 14 ## Page 18 Attorney Survey: The Attorney Survey was conducted online. Sampled attorneys were first sent a letter introducing them to the Survey and informing them that they would soon be receiving an email with a link to the Survey. The letter also included the Survey’s Web address, and a password if the respondent wished to take the survey before receiving the email. Approximately one week after the letter was mailed a first email was sent, and a week after that a second reminder email was sent. In order to increase the number of attorney responses, particularly for judges with few attorney survey evaluations, attorneys who had not responded after the second email request were telephoned and asked to either go online to take the survey, or if they preferred, to complete the survey by telephone. Attorney Questions: The questions used online for the 2009 Interim Judicial Performance Survey of attorneys asked respondents to use a grade of A, B, C, D, or F (Fail) to assess the judge’s performance in five different areas. These areas were Case Management, Application and Knowledge of Law, Communications, Demeanor and Diligence. These scores were then converted to a numerical value where A = 4, B = 3, C = 2, D = 1 and Fail = 0. A list of the questions are included in the last section of this report. Attorney Cooperation Rate: The cooperation rate for the Attorney Survey is calculated as the number of completed survey evaluations divided by the number of possible evaluations for that judges minus the undeliverable emails to attorneys in the sample for that judge. A table of the overall cooperation rates for the 2009 Interim Survey is shown later in this section of the report, as is a table showing the cooperation rates for Judge Schmalberger. The 2009 Interim Judicial Performance Survey was the first time in which the Attorney regarding Trial Judges survey was conducted online. A total of 4,163 attorneys were asked to participate in the online survey and on average to evaluate 2.81 judges each—a total of 11,688 potential attorney evaluations. Just over fifty-two percent (52.2%) of attorneys surveyed evaluated one or more judges. The average number of judges evaluated per attorney was 2.25 for a total of 4,883 attorney evaluations completed (41.8%). Note, these figures are only for the online survey (plus telephone follow-up interviews) and will not match the numbers in the Total Response Count table below, which include attorney evaluations from prior mail surveys. Non-attorney Survey Non-Attorney Sample: Depending on the number of names available to be sampled for each judge, a random sample of names was drawn if the quantity of potential respondents was large. On the other hand, if the count of possible respondents was small, all potential respondents were included in the sample. Where a person had been in more than one judge’s courtroom, the selection criteria for which judge he or she would be sent a questionnaire was generally for the judge in whose courtroom the potential respondent had been in most often. 2009 Interim Judicial Performance Survey 15 ## Page 19 Non-Attorney Survey: Each person whose name was sampled for the Non- Attorney Survey was mailed an initial postcard informing the recipient that he or she would be receiving a questionnaire. Two to three weeks after the post card was mailed, the potential respondent was sent a personalized introductory letter and a questionnaire with a postage-paid return envelope. If the person did not respond, a second questionnaire and letter were sent approximately four weeks later. Non-Attorney Questions: The questionnaire used in the 2009 Judicial Performance Survey asked non-attorney respondents to use a grade of A, B, C, D, or F (Fail) to assess the judge’s performance in five different areas: Demeanor, Fairness, Communications, Diligence and Application of Law. These scores were then converted to a numerical value where A = 4, B = 3, C = 2, D = 1 and Fail = 0. A copy of the questionnaire is included at the end of this report. Non-attorney Cooperation Rate: The estimated cooperation rate for the Non- attorney Survey is calculated as the number of completed questionnaires divided by the number of eligible respondents who actually received a questionnaire. The following table shows the total number of questionnaires mailed, completed, non-responses & refusals, undeliverables and other responses. The table presents the estimated overall cooperation rate as well as the cooperation rate by the different types of respondents. The true cooperation rates are likely higher than shown because of the percentage of people who were mailed questionnaires about judges who they had not observed. This is due, in part, to many cases being disposed of without the parties having appeared in court, as well as in the case of law enforcement, the data includes all those who were subpoenaed for a case, not just those who appeared. A table of the response counts by respondent type for Judge Schmalberger is shown below, and immediately following is a table of the overall cooperation rates for the 2009 Interim Survey, again by type of respondent. 2009 Interim Judicial Performance Survey 16 ## Page 20 Judge Donna J. Schmalberger Judge Response Counts by Type of Respondent Total No Undeliverable/ Other Non- Coop Role Type Sent Response Not Applicable Responses Completes Rate Attorneys Criminal District Attorneys 8 2 0 0 6 75.0% Defense Attorneys 5 2 0 0 3 60.0% Civil Attorneys for Litigants 12 4 0 0 8 66.7% Total Attorneys 25 8 0 0 17 68.0% Non-attorneys Criminal Victim 11 8 1 1 1 10.0% Witness 38 23 10 2 3 10.7% Other 2 1 1 0 0 0.0% Law Enforcement 34 26 4 3 1 3.3% Defendant 35 22 11 0 2 8.3% Civil Litigant 229 109 103 4 13 10.3% Witness 1 0 1 0 0 0.0% Jurors 14 3 0 0 11 78.6% Total Non-attorneys 364 192 131 10 31 13.3% Grand Total: 389 200 131 10 48 18.6% 2009 Interim Judicial Performance Survey 17 ## Page 21 Total Response Counts by Type of Respondent for All Judges Total No Undeliverable/ Other Non- Cooperation Sent Response Not Applicable responses Completes Rate Attorney Evaluations Criminal District Attorneys 2,251 1,169 82 2 998 46.0% Defense Attorneys 3,453 1,852 128 6 1,467 44.1% Other Attorneys Crmnl 3,283 1,887 85 4 1,307 40.9% Civil Attorneys for Litigants 3,123 1,286 219 7 1,611 55.5% Other Attorneys Civil 2,647 1,422 94 4 1,127 44.1% Attorneys, Unknown Role 393 29 41 3 320 90.9% Total Attorneys 15,150 7,645 649 26 6,830 47.1% Non-attorneys Criminal Law Enforcement 11,127 5,895 2,627 213 2,392 28.1% Defendant 56,759 28,224 22,971 543 5,021 14.9% Victim 301 197 82 6 16 7.3% Witness 9,152 4,836 3,013 376 927 15.1% Other 4,225 2,481 1,151 55 538 17.5% Civil Litigant 20,328 11,335 4,758 289 3,946 25.3% Witness 298 161 45 4 88 34.8% Other 327 165 79 6 77 31.0% Non-attnys, Unknown Role 546 276 190 4 76 21.3% Total Non-attorneys 103,063 53,570 34,916 1,496 13,081 19.2% Others Jurors 30,703 12,725 1,443 392 16,143 55.2% 30,703 12,725 1,443 392 16,143 55.2% Total 148,916 73,940 37,008 1,914 36,054 32.2% 2009 Interim Judicial Performance Survey 18 ## Page 22 Projectability Most surveys seen by the public are surveys that are intended to be projectable, that is the results from the sample of people surveyed can be used to estimate a percentage or value of the population sampled with a known probability of error. For example, a pre-election poll of 500 likely Colorado voters is used to estimate the percentage of voters who will vote for Candidate A on election day, plus or minus some number of percentage points. The plus or minus amount is usually what is known as the 95%-confidence interval (the known probability of error), or what the media often refers to as the margin-of-error. The Colorado Judicial Performance Evaluation Survey is not projectable with a known probability of error because the results are calculated from a self-selecting sample that is self-selecting based on the content and subject matter of the survey. In other words, the potential respondent knows the purpose and content of the survey, and based on that, decides whether to respond to the survey. While projectability within a known probability of error is a highly desirable attribute of a survey, it is often not feasible to achieve. Commercial market research often uses nonprojectable (and small) samples—the most well known of which are for focus groups. Moreover, the federal courts have long accepted, and do not expect, projectable samples for market confusion surveys used in trademark litigation. In other words, one can still use the results of the Judicial Performance Evaluation Survey to estimate how everyone who has observed a judge in the courtroom would grade him or her, just not with a known probability of error. The Judicial Performance Evaluation Survey is a valuable means, perhaps the only practical means, for the Judicial Performance Commissions to have a summary of structured interviews with a number of people who have courtroom familiarity with the judge being evaluated, and who most often—albeit not always—are responding out of a desire to improve the performance of our state’s judicial system. 2009 Interim Judicial Performance Survey 19 ## Page 23 Survey Results The report shows the Attorney and Non-attorney Survey results both graphically and in tables. Graphs: The graphs visually display the average numerical grade for each of the A through F scaled questions (A=4, B=3, C=2, D=1 and F = 0) for the report-judge compared to the average grade for all district judges in the 2009 Interim Survey. Overall averages for each of the five performance components1 and the total overall average for all grade-scale questions are also graphed for the report-judge and all district judges. In addition to the grade-scale graphs, the questions regarding bias in favor the prosecution or defense, sentencing (non-attorney survey only) and the retention question are also graphed. Tables: This section shows the same information as in the graphs in tabular form plus the percentage distribution of grades and response categories for each question. For comparison purposes, the next four pages—two for the Attorney Survey and two for the Non-attorney Survey—show the combined percentage distribution of grades and grade averages for all district judges. The overall averages shown in the graphs and tables are calculated by summing the average grade for each question and dividing by the number of questions summed. This gives each question equal weight in computing the overall averages. The sample size for each survey is shown at the beginning of both the Attorney Survey section and the Non-attorney Survey section and on each of the tables. This is the number of respondents who answered most or all of the questions in the questionnaire. It should be noted, however, that the number of responses for individual questions can vary from the overall sample size. For example, question 2d and the question about prosecution/defense bias in the Attorney Survey were only asked of attorneys who had observed the judge in a criminal case—approximately two-thirds of attorneys surveyed. Similarly, questions 6 and 7 in the Non-Attorney Survey were asked only of respondents acquainted with the judge’s performance in criminal cases. 1 The five performance components measured in the Attorney questionnaire were Case Management, Application and K knowledge of Law, Communications, Demeanor and Diligence, and in the Non-attorney questionnaire the components were Demeanor, Fairness, Communications, Diligence and Application of Law. 2009 Interim Judicial Performance Survey 20 ## Page 24 Survey of Attorneys Regarding Trial Judges All District Judges Average Sample Size = 3921 A B C D Fail DK/NA Grade 1. Case Management: 1a.Promptly issuing a decision on the case after trial. 47% 21% 7% 3% 1% 21% 3.39 1a.Promptly issuing a decision on the case after trial. 47% 21% 7% 3% 1% 21% 3.38 1b.Maintaining appropriate control over proceedings. 59% 25% 8% 4% 2% 2% 3.39 1c.Promptly ruling on pre-trial motions. 43% 26% 11% 4% 2% 13% 3.19 1c.Promptly ruling on pre-trial motions. 43% 26% 11% 4% 2% 13% 3.20 1d.Setting reasonable schedules for cases. 49% 28% 11% 5% 3% 4% 3.22 Overall Case Management 3.30 2. Application and Knowledge of Law: 2a.Being able to identify and analyze relevant facts. 53% 28% 10% 4% 2% 3% 3.28 2a.Being able to identify and analyze relevant facts. 53% 28% 10% 4% 2% 3% 3.29 2b.Basing decisions on evidence and arguments. 49% 27% 11% 6% 3% 4% 3.16 2c.Willing to reconsider error in fact or law. 29% 20% 11% 6% 4% 29% 2.89 2d.Issuing consistent sentences when the circumstances are 30% 22% 10% 4% 3% 31% 3.07 similar. Overall Application and Knowledge of Law 3.10 3. Communications: 3a.Making sure all participants understand the proceedings. 63% 25% 7% 2% 1% 3% 3.51 3b.Providing written communications that are clear, thorough 46% 26% 9% 4% 2% 13% 3.28 and well reasoned. Overall Communications 3.40 4. Demeanor: 4a. Giving proceedings a sense of dignity. 65% 22% 7% 3% 2% 1% 3.46 4b. Treating parties with respect. 63% 20% 7% 4% 4% 1% 3.35 4c. Conducting his/her courtroom in a neutral manner. 57% 22% 9% 5% 4% 2% 3.25 4c. Conducting his/her courtroom in a neutral manner. 57% 22% 9% 5% 4% 2% 3.26 4d. Consistently applying laws and rules. 51% 26% 11% 5% 3% 5% 3.21 Overall Demeanor 3.32 5. Diligence: 5a.Using good judgment in application of relevant law and 49% 28% 11% 6% 4% 3% 3.15 rules. 5b.Doing the necessary homework and being prepared for 52% 26% 10% 5% 2% 6% 3.28 his/her cases. 5c.Being willing to handle cases on the docket even when 51% 20% 8% 4% 2% 16% 3.36 they are complicated and time consuming. 5c.Being willing to handle cases on the docket even when 51% 20% 8% 4% 2% 16% 3.35 they are complicated and time consuming. Overall Diligence 3.26 Overall Average Grade: 3.26 2009 Interim Judicial Performance Survey 21 ## Page 25 Survey of Attorneys Regarding Trial Judges Average All District Judges Grade Sample Size = 3921 Would you say the judge is: Very biased in favor of the prosecution 11% Somewhat biased in favor of the prosecution 28% Completely neutral 46% Somewhat biased in favor of the defense 9% Very biased in favor of the defense 2% Don't know/not sure 4% 8. How strongly do you recommend that the Judge be retained or not retained in office? [Percentages excluding undecided responses.] Strongly recommend retain in office 71% Somewhat recommend retain in office 16% Somewhat recommend not retain in office 6% Strongly recommend not retain in office 7% Total Retain 87% Total Not Retain 13% [Percentages including undecided responses.] Strongly recommend retain in office 68% Somewhat recommend retain in office 15% Undecided or dont know enough to make recommendation 5% Somewhat recommend not retain in office 6% Strongly recommend not retain in office 6% Total Retain 83% Undecided/Don't Know 5% Total Not Retain 12% 2009 Interim Judicial Performance Survey 22 ## Page 26 Survey of Non-Attorneys Regarding Trial Judges All District Judges Average Sample Size = 17850 A B C D Fail DK/NA Grade 1. Demeanor: 1a.Giving court proceedings a sense of dignity. 77% 15% 4% 1% 2% 1% 3.67 1b.Treating participants in the case politely and with respect. 80% 12% 3% 2% 2% 1% 3.67 1c.Conducting court in a neutral manner. 78% 13% 3% 2% 3% 1% 3.62 1d.Having a sense of compassion and human understanding 73% 15% 4% 2% 4% 2% 3.55 for those who appear before the court. Overall Demeanor 3.63 2. Fairness: 2a.Giving participants an opportunity to be heard. 78% 13% 3% 2% 3% 1% 3.64 2b.Treating those involved in the case without bias. 77% 13% 3% 2% 4% 2% 3.60 2c.Treating fairly people who represent themselves. 49% 7% 2% 1% 2% 38% 3.61 2d.Giving each side enough time to present his or her case. 76% 13% 3% 2% 3% 4% 3.64 Overall Fairness 3.62 3. Communications: 3a.Making sure participants understand the proceedings, and 79% 13% 4% 1% 2% 1% 3.69 what is going on in the courtroom. 3b.Using language that everyone can understand. 79% 15% 3% 1% 1% 1% 3.71 3c.Speaking clearly so everyone in the courtroom can hear 81% 13% 3% 1% 1% 1% 3.73 what is being said. Overall Communications 3.71 4. Diligence: 4a.Beginning court on time 65% 22% 7% 2% 2% 2% 3.50 4b.Maintaining appropriate control over proceedings. 80% 13% 3% 1% 1% 1% 3.73 4c.Setting reasonable schedules for cases. 67% 15% 4% 1% 2% 10% 3.61 4d.Being prepared for cases. 75% 13% 3% 1% 2% 5% 3.67 4e.Managing court proceedings so that there is little wasted 69% 19% 6% 2% 2% 2% 3.55 time. Overall Diligence 3.61 5. Application of Law: 5a.Giving reasons for rulings. 69% 15% 4% 2% 3% 7% 3.56 5b.Willing to make decisions without regard to possible 64% 10% 3% 2% 3% 18% 3.59 outside pressure. 5c.Being able to identify and analyze relevant facts. 71% 13% 3% 2% 3% 8% 3.58 Overall Application of Law 3.58 Overall Average Grade: 3.63 2009 Interim Judicial Performance Survey 23 ## Page 27 Survey of Non-Attorneys Regarding Trial Judges Average All District Judges Grade Sample Size = 17850 6. How biased do you think the Judge is toward the defense or prosecution? [Please see the questionnaire at the end of report for question wording.] Biased in favor of the prosecution total 11% Competely neutral 84% Biased in favor of the defense total 7% Average 0.11 7. How lenient or harsh do you think the sentences generally handed down by Judge are? [Please see the questionnaire at the end of report for question wording.] Harsh sentencing total 11% Competely neutral 80% Lenient sentencing total 10% Average 0.12 10. Retain percentage without undecideds. [Percentages excluding undecided responses.] Strongly recommend retain in office 87% Somewhat recommend retain in office 6% Somewhat recommend not retain in office 2% Strongly recommend not retain in office 5% Total Retain 93% Total Not Retain 7% [Percentages including undecided responses.] Strongly recommend retain in office 82% Somewhat recommend retain in office 6% Undecided or dont know enough to make recommendation 6% Somewhat recommend not retain in office 2% Strongly recommend not retain in office 4% Total Retain 88% Undecided/Don't Know 6% Total Not Retain 6% 2009 Interim Judicial Performance Survey 24 ## Page 28 QQuueessttiioonnnnaaiirreess ## Page 29 Colorado Judicial Performance Attorneys Regarding Trial Judges Survey Questions _ Which of the following types of cases have you observed Judge (Last Name)’s performance? Please circle all that apply. (Only respondents who indicate they have observed the judge in “criminal other than traffic” cases will be asked question 2c and question 6.) Civil . 1 Criminal other than traffic . 2 Traffic . 3 Domestic . 4 Juvenile . 5 Probate . 6 Other . 9 1. Case Management: a. Promptly issuing a decision on the case after trial. A B C D F DK/NS b. Maintaining appropriate control over proceedings. A B C D F DK/NS c. Promptly ruling on pre-trial motions. A B C D F DK/NS d. Setting reasonable schedules for cases. A B C D F DK/NS 2. Application and Knowledge of Law: a. Being able to identify and analyze relevant facts. A B C D F DK/NS b. Basing decisions on evidence and arguments. A B C D F DK/NS c. Willing to reconsider error in fact or law. A B C D F DK/NS d. [Criminal only] Issuing consistent sentences when the circumstances are similar. A B C D F DK/NS 3. Communications: a. Makings sure all participants understand the proceedings. A B C D F DK/NS b. Providing written communications that are clear, thorough and well reasoned. A B C D F DK/NS 4. Demeanor: a. Giving proceedings a sense of dignity. A B C D F DK/NS b. Treating participants with respect. A B C D F DK/NS c. Conducting his/her courtroom in a neutral manner. A B C D F DK/NS d. Consistently applying laws and rules. A B C D F DK/NS 5. Diligence: a. Using good judgment in application of relevant law and rules. A B C D F DK/NS b. Doing the necessary “homework” and being prepared for his/her cases. A B C D F DK/NS c. Being willing to handle cases on the docket even when they are complicated and time consuming. A B C D F DK/NS 1 ## Page 30 Having observed Judge (Last Name) in a criminal case, would you say the judge is: (This question is asked only if respondent indicated at the beginning of the survey he/she observed the judge in a criminal case.) Very biased in favor of the prosecution . 1 Somewhat biased in favor of the prosecution . 2 Completely Neutral . 3 Somewhat biased in favor of the defense . 4 Very biased in favor of the defense . 5 Don’t Know/Not Sure . 9 6. What would you say are Judge (Last Name)’s strengths? _ _ _ 7. What would you say are Judge (Last Name)’s weaknesses? _ _ _ 8. Keeping in mind your responses to each of the previous questions, how strongly do you recommend that Judge (Last Name) be retained in office, or not retained in office? Strongly recommend he be retained in office . 5 Somewhat recommend he be retained in office . 4 Undecided or don’t know enough to make recommendation . 3 Somewhat recommend he not be retained in office . 2 Strongly recommend he not be retained in office . 1 2 ## Page 31 9. And what would you say are Judge [Last Name]’s weaknesses? ___________________________________________________________ ___________________________________________________________ ___________________________________________________________ ___________________________________________________________ Commission on Judicial Performance ___________________________________________________________ ___________________________________________________________ Evaluation of 10. Keeping in mind your responses to each of the previous questions, how JUDGE [FULL NAME] strongly do you recommend that Judge [Last Name] be retained in office, or not retained in office? Strongly recommend he/she be retained in office ................................ 5 Somewhat recommend he/she be retained in office ............................ 4 Undecided or don’t know enough to make recommendation ............. 3 If we have made a mistake and you either were not in Judge [Last Somewhat recommend he/she not be retained in office ..................... 2 Name]’s courtroom in the past 18 months, or you feel that you do not Strongly recommend he/she not be retained in office ......................... 1 have sufficient experience with Judge [Last Name] to have an opinion the judge’s judicial performance, please just return this questionnaire, unanswered, in the enclosed postage-paid envelope, to stop any further requests to evaluate Judge [Last Name]. Thank you for taking the time to complete this questionnaire. Please place it in the self-addressed, postage-paid envelope provided and place it in the mail. Your participation in this survey is very much appreciated. Using a grade scale, where an “A” is excellent along with B, C, D or F for fail, please grade the judge on the following. (If you feel that you don’t have experience with the judge in a specific area, or just don’t know, please circle the number corresponding to “Don’t Know/Not Applicable”—DK/NA). DK 1. Demeanor: A B C D F N/A a. Giving court proceedings a sense of dignity. 4 3 2 1 0 9 b. Treating participants in the case politely and with respect. 4 3 2 1 0 9 c. Conducting his/her courtroom in a neutral manner. 4 3 2 1 0 9 d. Having a sense of compassion and human understanding for those who appear before him/her. 4 3 2 1 0 9 ## Page 32 DK 6. [If you were in [Last Name]’s courtroom during a criminal case or 2. Fairness: A B C D F N/A cases please answer this question, otherwise skip to the next a. Giving participants an opportunity to be heard. 4 3 2 1 0 9 question.] On the scale below, please indicate by circling the appropriate b. Treating those involved in the case without bias. 4 3 2 1 0 9 number how biased you think Judge [Last Name] is toward the defense or c. Treating fairly people who represent themselves. 4 3 2 1 0 9 the prosecution. If you feel Judge [Last Name] is completely unbiased, circle “0.” d. Giving each side enough time to present his or her case. 4 3 2 1 0 9 Bias toward Completely Bias toward Defense Neutral Prosecution DK 5 4 3 2 1 0 1 2 3 4 5 3. Communications: A B C D F N/A a. Makings sure participants understand the 7. [If you were in [Last Name]’s courtroom during a criminal case or proceedings, and what’s going on in the cases please answer this question, otherwise skip to the next courtroom. 4 3 2 1 0 9 question.] On the scale below, please indicate by circling the appropriate b. Using language that everyone can understand. 4 3 2 1 0 9 number how lenient or how harsh you think the sentences generally handed c. Speaking clearly so everyone in the courtroom down by [Last Name] are. If you feel Judge [Last Name] generally hands can hear what’s being said. 4 3 2 1 0 9 down appropriate sentences, circle “0.” DK Sentences Appropriate Sentences 4. Diligence: A B C D F N/A Too Light Sentences Too Harsh a. Beginning court on time. 4 3 2 1 0 9 5 4 3 2 1 0 1 2 3 4 5 b. Maintaining appropriate control over proceedings. 4 3 2 1 0 9 c. Setting reasonable schedules for cases. 4 3 2 1 0 9 d. Being prepared for his/her cases. 4 3 2 1 0 9 Though your name will never be associated with your answers, because the judge will e. Managing court proceedings so that there is see a typed transcript of the comments that you and others write, it is important that little wasted time. 4 3 2 1 0 9 you do not include information in the comments below that would unintentionally identify you as the author. 8. What would you say are Judge [Last Name]’s strengths? DK ___________________________________________________________ 5. Application of Law: A B C D F N/A ___________________________________________________________ a. Giving reasons for rulings. 4 3 2 1 0 9 ___________________________________________________________ b. Willing to make decision without regard to ___________________________________________________________ possible outside pressure. 4 3 2 1 0 9 ___________________________________________________________ c. Being able to identify and analyze relevant facts. 4 3 2 1 0 9 ___________________________________________________________ Continued on Back Page - 2010 Retention Survey Report(PDF on OJPE)
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## Page 1 State of Colorado Logo COMMISSION ON JUDICIAL PERFORMANCE TThhee HHoonnoorraabbllee DDoonnnnaa JJ.. SScchhmmaallbbeerrggeerr 2010 Judicial Performance Survey Report 2nd Judicial District ## Page 2 March 30, 2010 The Honorable Donna J. Schmalberger City & County Bldg. 1437 Bannock St., Room 256 Denver, CO 80202 Dear Judge Schmalberger: I am pleased to make available to you the attached copy of your 2010 Judicial Performance Survey Report. The report is based on three surveys relating to how you are seen carrying out the performance of your office: One of attorneys who have had cases in your court or who are knowledgeable about your judicial performance, second a survey of appellate judges and third a survey of non-attorneys who have observed your performance in court or who have otherwise been affected by your performance of a judge. The methodology underlying these surveys has changed somewhat since the last reports were issued in 2009. A few minutes perusing the methodology section toward the end of this report should inform you of the relevant changes, and provide you with a methodological context to better interpret your survey results. In addition to this introduction, the report is divided into six main sections: A brief summary of the results of the two surveys. The numerical results of the survey of attorneys in both tabular and graphical form. In addition to the numerical results, this section also contains comments attorneys made about your judicial performance. In some instances the comments have been redacted to eliminate respondent identifying information. A copy of the attorney questionnaire is at the back of this report. The numerical results of the survey of appellate judges in tabular form, and any comments the justices and judges might have made about your judicial performance. The numerical results of the survey of non-attorneys in both tabular and graphical form. In addition to the numerical results, this section also contains comments these respondent made on the subject of your judicial performance. In few instances the comments have been redacted to eliminate respondent identifying information. A copy of the non-attorney questionnaire is at the back of this report. 100 Arap ahoe, Suite One, Boulder, CO 80302 Phone 303.443.5300 Fax 303.200.7385 ## Page 3 Hon. Donna J. Schmalberger March 30, 2010 Page 2 The fifth section of the Report discusses the methodology of the surveys. The final section provides copies of the questions or questionnaires that were used for each survey. If you have any questions about the methodology and how the survey was conducted, please feel free to contact me at 303-443-5300 ext 1 or by email at talmey@talmeyresearch.com (please put the words “Judicial Performance” in the subject line), and for any other questions you might have about the survey please call the Executive Director of the Office of Judicial Performance Evaluation, Jane Howell, at 303-866-6465. Best regards, Paul A. Talmey President enc: ## Page 4 SSuummmmaarryy ooff RReessuullttss Attorneys assigned Judge Donna J. Schmalberger an overall average grade1 of 2.77, and non-attorneys assigned Judge Schmalberger an overall average grade of 3.59 resulting in a combined grade of 3.18. The average combined grade for all district judges, including those not eligible to stand for retention in 2010, was 3.48. The combined average grade is computed as the total of the overall average from the attorney survey plus the overall average from the non-attorney survey, divided by two. Judge Schmalberger Average Grades Combined Attorney Non-attorney Overall Grade 3.18 2.77 3.59 Sample Size - 22 58 Table 1 The results presented in this report are based on data collected in 2005, 2007, 2008 and 2009. (See Methodology section for description of sampling process.) Table 2 shows Judge Schmalberger’s overall average grades for each of these years. Judge Schmalberger Average Grades by Year Combined Overall Attorney Overall Non-Attny Overall Average Grade2 Average Grade Average Grade 2005 2007 2008 2009 2005 2007 2008 2009 2005 2007 2008 2009 Overall Grade 2.72 3.34 2.03 2.9 1.58 3.40 3.77 Sample Size - - - - 0 0 4 18 0 1 22 35 Table 2 1 The overall average grade for the attorney and non-attorney surveys are computed by summing the average grade for each A through F question and dividing by the number of questions. See the tables in each of the survey sections. 2 District judges who were appointed between 2005 and 2009 will not have sample for the years prior to their appointment. In the tables for those years with no sample, the sample size will be shown as 0, and the overall average cells will be blank. This will also be true for a few judges who had no attorney sample even though they were on the bench that year. 2010 Judicial Performance Survey Report 1 ## Page 5 Due to sending questionnaires to all jurors—not just a sample—and their much higher response rate than other non-attorneys surveyed, the percentage of jurors in the district judge sample of the non-attorney survey is 61%. Moreover, jurors tend to grade judges much higher than non-jurors. The average juror overall average grade for district judges was 3.86, while the overall average grade awarded by non-jurors was 3.28. The effect of this is that judges with a higher percentage of jurors in their sample tend to have higher average grades in the non-attorney survey than those judges with a small percentage of jurors. The number of jurors in a judge’s sample is, of course, closely related to the number of jury trials the judge presides over. The table below shows Judge Schmalberger’s non-attorney results broken out by jurors and non-jurors. It also shows the overall average juror and non-juror grades for all district Judge Schmalberger Average Grade by Juror/Non-juror Jurors Non-Jurors Overall Grade 3.94 3.38 Percent of Sample 40% 60% Sample Size 23 35 District Judge Average 3.86 3.28 Table 3 Judges. Table 3 allows one to compare Judge Schmalberger’s juror and non-juror grades with the all district judge averages to better ascertain if the judge is seen as performing relatively well or relatively poorly among these two subgroups. 2010 Judicial Performance Survey Report 2 ## Page 6 SSuurrvveeyy ooff AAtoorrnneeyyss RReeggaarrddiinngg JJuuddggee DDoonaa JJ.. SScchhmmaallbbeerrggeerr ((SSaammppllee SSiizzee 2)) ## Page 7 Survey of Attorneys Regarding Trial Judges Average Judge Donna J. Schmalberger Donna J. All District Sample Size = 22 A B C D Fail DK/NA Schmalberger Judges 1. Case Management: 1a. Promptly issuing a decision on the case after trial. 45% 36% 5% 0% 0% 14% 3.47 3.42 1b. Maintaining appropriate control over proceedings. 14% 45% 23% 9% 9% 0% 2.45 3.43 1c. Promptly ruling on pre-trial motions. 27% 32% 27% 0% 0% 14% 3.00 3.25 1d. Setting reasonable schedules for cases. 27% 18% 14% 23% 14% 5% 2.24 3.25 Overall Case Management 2.79 3.34 2. Application and Knowledge of Law: 2a. Being able to identify and analyze relevant facts. 18% 36% 27% 14% 0% 5% 2.62 3.30 2b. Basing decisions on evidence and arguments. 9% 32% 32% 18% 0% 9% 2.35 3.13 2c. Willing to reconsider error in fact or law. 5% 23% 18% 14% 14% 27% 1.88 3.09 2d. Issuing consistent sentences when the circumstances are 0% 75% 0% 0% 0% 25% 3.00 3.16 similar. Overall Application and Knowledge of Law 2.46 3.17 3. Communications: 3a. Making sure all participants understand the proceedings. 57% 29% 14% 0% 0% 0% 3.43 3.55 3b. Providing written communications that are clear, thorough 26% 26% 11% 5% 0% 32% 3.08 3.32 and well reasoned. Overall Communications 3.26 3.44 4. Demeanor: 4a. Giving proceedings a sense of dignity. 33% 38% 19% 5% 5% 0% 2.90 3.51 4b. Treating parties with respect. 43% 24% 10% 14% 10% 0% 2.76 3.42 4c. Conducting his/her courtroom in a neutral manner. 19% 24% 38% 19% 0% 0% 2.43 3.32 4d. Consistently applying laws and rules. 10% 38% 29% 14% 0% 10% 2.47 3.28 Overall Demeanor 2.64 3.38 5. Diligence: 5a. Using good judgment in application of relevant law and 19% 29% 33% 14% 0% 5% 2.55 3.20 rules. 5b. Doing the necessary homework and being prepared for 43% 33% 10% 5% 0% 10% 3.26 3.34 his/her cases. 5c. Being willing to handle cases on the docket even when 48% 5% 29% 5% 0% 14% 3.11 3.42 they are complicated and time consuming. Overall Diligence 2.97 3.32 Overall Average Grade: 2.77 3.32 2010 Judicial Performance Survey Report 4 ## Page 8 Survey of Attorneys Regarding Trial Judges Percentage Judge Donna J. Schmalberger Donna J. All District Schmalberger Judges Sample Size = 22 Would you say the judge is: Very biased in favor of the prosecution 0% 11% Somewhat biased in favor of the prosecution 0% 27% Completely neutral 0% 47% Somewhat biased in favor of the defense 100% 9% Very biased in favor of the defense 0% 2% Don't know or not sure 0% 4% 8. How strongly do you recommend that the Judge be retained in office, or not be retained in office? [Percentages excluding undecided responses.] Strongly recommend retain 37% 74% Somewhat recommend retain 32% 15% Somewhat recommend not retain 5% 5% Strongly recommend not retain 26% 6% Total Retain 69% 89% Total Not Retain 31% 11% [Percentages including undecided responses.] Strongly recommend retain 32% 70% Somewhat recommend retain 27% 14% Undecided or Don't Know 14% 4% Somewhat recommend not retain 5% 5% Strongly recommend not retain 23% 6% Total Retain 59% 84% Undecided/Don't Know 14% 4% Total Not Retain 28% 11% 2010 Judicial Performance Survey Report 5 ## Page 9 Judge Donna J. Schmalberger Survey of Attorneys Regarding Trial Judges Average Grades 2.78 Overall Average Grade 3.32 Q1. Overall Case Management 2.79 3.34 1a. Promptly issuing a decision on the 3.47 case after trial. 3.42 1b. Maintainingappropriate control over 2.45 proceedings. 3.43 3.00 1c. Promptlyruling on pre-trial motions. 3.25 1d.Setting reasonable schedules for cases. 2.24 3.25 2.46 Q2. OverallApp & Knowledge of Law 3.17 2a. Beingable to identify and analyze 2.62 relevant facts. 3.30 2b.Basing decisions on evidence and argument. 2.35 3.13 2c. Willing to reconsider error in fact or law. 3.09 2d. [Criminal only] Issuing consistant sentences 3.00 whencircumstances are simmilar. 3.16 3.26 Q3. Overall Communication 3.44 3a.Making sure all participants understand 3.43 the proceedings. 3.55 3b. Providing written communications that are 3.08 clear, thorough and well reasoned. 3.32 2.0 2.5 3.0 3.5 4.0 Donna J. Schmalberger All District Judges Judg 2e0 1D0 Joudnicianl Pae rfJor.m aSncce hSumrveay Rlbepeortrger 6 ## Page 10 Judge Donna J. Schmalberger Survey of Attorneys Regarding Trial Judges Average Grades 2.64 Q4. Overall Demeanor 3.38 2.90 4a. Giving proceedingsa sense of dignity. 3.51 2.76 4b. Treating participants with respect. 3.42 4c. Conducting [his/her] courtroom 2.43 in a neutral manner. 3.32 2.47 4d. Consistanly applyinglaws and rules. 3.28 2.97 Q5. Overall Diligence 3.32 5a. Using good judgement in application of 2.55 releveant laws and rules. 3.20 5b. Doing the necessary 'homework' and 3.26 being prepared for [his/her] cases. 3.34 5c. Being willing to handle cases on the docket even 3.11 when they are complicated and time consuming. 3.42 2.0 2.5 3.0 3.5 4.0 Biased in favor of prosecution/defense. 0% Very biased in favor of the prosecution 11% 0% Somewhat biased in favor of the prosecution 27% 0% Completely Neutral 47% 100% Somewhat biased in favor of the defense 9% 0% Very biased in favor of the defense 2% 0% Don't know/not sure 4% 0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100% 110% Donna J. Schmalberger All District Judges 2010 Judicial Performance Survey Report 7 ## Page 11 Judge Donna J. Schmalberger Survey of Attorneys Regarding Trial Judges Q8. How strongly do you recommend that Judge Schmalberger be retained or not retained in office? Excluding Undecided Respondents 37% Strongly recommend retain 74% 32% Somewhat recommend retain 15% Judge All Dist Schmalberger Judges 5% Total Retain 69% 89% Somewhat recommend not retain Total Not Retain 31% 11% 5% 26% Strongly recommend not retain 6% 0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100% Including Undecided Respondents 32% Strongly recommend retain 70% 27% Somewhat recommend retain 14% Judge All Dist 14% Schmalberger Judges Undecided or DK 4% Total Retain 59% 84% Undecided or DK 14% 4% 5% Somewhat recommend not retain Total Not Retain 28% 11% 5% 23% Strongly recommend not retain 6% 0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100% Donna J. Schmalberger All District Judges 2010 Judicial Performance Survey Report 8 ## Page 12 SSuurrvveeyy ooff AApeelaattee JJuuddggeess RReeggaarrddiinngg JJuuddggee DDoonaa JJ.. SScchhmmaallbbeerrggeerr ((SSaammppllee SSiizzee 2277)) ## Page 13 Survey of Appellate Judges Regarding District Judges Average Judge Donna J. Schmalberger All Sample Size = 27 Retention No Donna J. District Evaluations of Judge Schmalberger = 9 A B C D Fail Grade Schmalberger Judges Judge Schmalberger in terms of overall performance as a judge. 20% 16% 0% 0% 0% 64% 3.56 3.53 The Appellate Judges Regarding District Judges questionnaire asks only one question about each of the district judges eligible to stand for retention in 2010. While 27 out of 29 appellate judges completed the questionnaire, as expected most appellate judges only graded some of the listed district judges, marking the rest as “No Grade.” The number of evaluations shown below the sample size at the top of the page is the number of questionnaires returned with a letter grade for the judge. Please see the copy of the questionnaire in the Questionnaires section. 2010 Judicial Performance Survey Report 10 ## Page 14 SSuurrvveeyy ooff NNoonn--AAtoorrnneeyyss RReeggaarrddiinngg JJuuddggee DDoonaa JJ.. SScchhmmaallbbeerrggeerr ((SSaammppllee SSiizzee 5588)) ## Page 15 Survey of Non-Attorneys Regarding Trial Judges Average Judge Donna J. Schmalberger Donna J. All District Sample Size = 58 A B C D Fail DK/NA Schmalberger Judges 1. Demeanor: 1a. Giving court proceedings a sense of dignity. 74% 19% 7% 0% 0% 0% 3.67 3.68 1b. Treating participants in the case politely and with respect. 77% 16% 4% 4% 0% 0% 3.67 3.68 1c. Conducting court in a neutral manner. 72% 19% 2% 6% 2% 0% 3.54 3.63 1d. Having a sense of compassion and human understanding 73% 14% 7% 4% 2% 0% 3.54 3.57 for those who appear before the court. Overall Demeanor 3.61 3.64 2. Fairness: 2a. Giving participants an opportunity to be heard. 74% 18% 7% 2% 0% 0% 3.63 3.66 2b. Treating those involved in the case without bias. 78% 9% 3% 7% 2% 2% 3.56 3.61 2c. Treating fairly people who represent themselves. 67% 7% 0% 2% 2% 23% 3.75 3.62 2d. Giving each side enough time to present his or her case. 78% 14% 5% 3% 0% 0% 3.66 3.65 Overall Fairness 3.65 3.64 3. Communications: 3a. Making sure participants understand the proceedings, and 72% 19% 9% 0% 0% 0% 3.64 3.70 what is going on in the courtroom. 3b. Using language that everyone can understand. 79% 14% 7% 0% 0% 0% 3.72 3.71 3c. Speaking clearly so everyone in the courtroom can hear 84% 7% 9% 0% 0% 0% 3.76 3.73 what is being said. Overall Communications 3.71 3.71 4. Diligence: 4a. Beginning court on time 65% 26% 5% 4% 0% 0% 3.53 3.50 4b. Maintaining appropriate control over proceedings. 78% 17% 3% 2% 0% 0% 3.71 3.73 4c. Setting reasonable schedules for cases. 63% 14% 11% 7% 0% 5% 3.41 3.61 4d. Being prepared for cases. 75% 12% 7% 2% 0% 4% 3.67 3.68 4e. Managing court proceedings so that there is little wasted 56% 23% 12% 9% 0% 0% 3.26 3.55 time. Overall Diligence 3.52 3.61 5. Application of Law: 5a. Giving reasons for rulings. 67% 14% 7% 5% 0% 7% 3.54 3.57 5b. Willing to make decisions without regard to possible 60% 12% 7% 5% 0% 16% 3.50 3.60 outside pressure. 5c. Being able to identify and analyze relevant facts. 67% 14% 9% 3% 2% 5% 3.49 3.59 Overall Application of Law 3.51 3.59 Overall Average Grade: 3.59 3.64 2010 Judicial Performance Survey Report 12 ## Page 16 Survey of Non-Attorneys Regarding Trial Judges Percentage Judge Donna J. Schmalberger Donna J. All District Schmalberger Judges Sample Size = 58 6. How biased do you think the Judge is toward the defense or prosecution? [Please see the questionnaire at the end of report for question wording.] Biased in favor of the prosecution total 18% 10% Competely neutral 77% 84% Biased in favor of the defense total 6% 7% [A positive average indicates bias toward prosecution, and a Average 0.37 0.08 negative average indicates a bias toward the defense.] 7. How lenient or harsh do you think the sentences generally handed down by Judge are? [Please see the questionnaire at the end of report for question wording.] Harsh sentencing total 22% 10% Competely neutral 67% 80% Lenient sentencing total 11% 11% [A positive average indicates sentences are harsh, and a Average 0.33 0.07 negative average indicates sentences are lenient.] 10. How strongly do you recommend that the Judge be retained or not retained in office? [Percentages excluding undecided responses.] Strongly recommend retain 84% 87% Somewhat recommend retain 6% 6% Somewhat recommend not retain 4% 2% Strongly recommend not retain 6% 4% Total Retain 90% 93% Total Not Retain 10% 6% [Percentages including undecided responses.] Strongly recommend retain 79% 82% Somewhat recommend retain 6% 6% Undecided or Don't Know 6% 6% Somewhat recommend not retain 4% 2% Strongly recommend not retain 6% 4% Total Retain 85% 88% Undecided/Don't Know 6% 6% Total Not Retain 10% 6% 2010 Judicial Performance Survey Report 13 ## Page 17 Judge Donna J. Schmalberger Survey of Non-Attorneys Regarding Trial Judges Average Grades 3.59 Overall Average Grade 3.64 3.61 Q1. Overall Demeanor 3.64 3.67 1a. Giving proceedings a sense of dignity. 3.68 1b. Treating participants politely and with respect. 3.67 3.68 1c. Conducting the courtroom in a neutral 3.54 manner. 3.63 1d. Having a sense of compassion and human 3.54 understanding for those who appear before the judge. 3.57 3.65 Q2. Overall Fairness 3.64 2a. Giving participants an opportunity to be 3.63 heard. 3.66 2b. Treating those involved in the 3.56 case without bias. 3.61 2c. Treats people fairly who represent 3.75 themselves. 3.62 2d. Giving each side enough time to present his 3.66 or her case. 3.65 3.71 Q3. Overall Communtications 3.71 3a. Making sure participants understand the 3.64 proceedings, and what's going on in the courtroom. 3.70 3b. Using language that everyone can 3.72 understand. 3.71 3c. Speaking clearly so everyone in the courtroom 3.76 can hear what's being said. 3.73 2.0 2.5 3.0 3.5 4.0 Donna J. Schmalberger All District Judges Judg 2e01 0D Juodincianl Paer foJrm. aSncce Shumrveya Rlebpoertrger 14 ## Page 18 Judge Donna J. Schmalberger Survey of Non-Attorneys Regarding Trial Judges Average Grades 3.52 Q4. Overall Diligence 3.61 3.53 4a. Beginning court on time. 3.50 4b. Maintaining appropriate control over 3.71 proceedings. 3.73 4c. Setting reasonable schedules for cases. 3.41 3.61 4d. Being prepared for his or her cases. 3.67 3.68 4e. Managing court proceedings so that there is 3.26 little wasted time. 3.55 3.51 Q5. Overall Legal Ability 3.59 5a. Giving reasons for rulings. 3.54 3.57 5b. Willing to make decision without regard to 3.50 possible outside pressure. 3.60 5c. Being able to identify and analyze 3.49 relevant facts. 3.59 2.0 2.5 3.0 3.5 4.0 Q6 Biased in favor of prosecution/defense. 0.37 Donna J. Schmalberger 0.08 All District Judges -5 -4 -3 -2 -1 0 1 2 3 4 5 Defense Prosecution Q7 Lenience or Harshness in Sentencing. 0.33 Donna J. Schmalberger 0.07 All District Judges -5 -4 -3 -2 -1 0 1 2 3 4 5 Lenient Harsh Donna J. Schmalberger All District Judges 2010 Judicial Performance Survey Report 15 ## Page 19 Donna J. Schmalberger All District Judges Judge Donna J. Schmalberger Survey of Non-Attorneys Regarding Trial Judges Q10. How strongly do you recommend that Judge Schmalberger be retained or not retained in office? Excluding Undecided Respondents 84% Strongly recommend retain in office 87% 6% Somewhat recommend retain in office 6% Judge All Dist Schmalberger Judges Total Retain 90% 93% 4% Somewhat recommend not retain in office Total Not Retain 10% 6% 2% 6% Strongly recommend not retain in office 4% 0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100% Including Undecided Respondents 79% Strongly recommend retain in office 82% 6% Somewhat recommend retain in office 6% 6% Judge All Dist Undecided 6% Schmalberger Judges Total Retain 85% 88% 4% Undecided 6% 6% Somewhat recommend not retain in office 2% Total Not Retain 10% 6% 6% Strongly recommend not retain in office 4% 0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100% Donna J. Schmalberger All District Judges 2010 Judicial Performance Survey Report 16 ## Page 20 MMeetthhooddoollooggyy ## Page 21 MMeetthhooddoollooggyy The results shown in the 2010 Judicial Performance Survey Report are based on three surveys: The Survey of Attorneys Regarding Trial Judges, the Survey of Appellate Judges Regarding District Judges, and the Survey of Non-Attorneys Regarding Trial Judges. Below is a description of the methodology of the three surveys. I Attorneys Regarding Trial Judges a. Sample: Talmey-Drake Research & Strategy received case data with the names of people who had likely been in each judge’s courtroom from five primary sources: Colorado Judicial Department, Colorado District Attorneys’ Council Denver County Courts District Attorney’s Office, Second Judicial District (Denver) District Attorney’s Office, Ninth Judicial District Additional information was provided by the State Public Defender’s Office and the District Attorney’s Office, 15th Judicial District. The data from these different data sources are combined, duplicates removed and addresses corrected. i. Prior to 2009, the survey of Attorneys Regarding Trial Judges was conducted using paper questionnaires mailed to the attorneys’ offices. A sample of attorneys drawn from the case data were assigned to evaluate judges subject to the following rules applied in the order shown. 1. No attorney would be asked to evaluate the same judge in a 24 month period. 2. If an attorney was eligible to evaluate both a trial judge and an appellate judge, the attorney was assigned to evaluate the appellate judge. 3. If there were several judges the attorney could potentially evaluate, the attorney was assigned the judge with whom he or she had had the most cases during the sampling time frame, or the judge with the smallest sample in order to even out sample sizes among judges. Attorneys were mailed a questionnaire, and if they did not respond they were sent a reminder postcard followed by a second questionnaire and in some cases a second reminder postcard. Questionnaires were barcoded, and if an attorney mailed back two questionnaires, the second one was deleted from the data file. Attorneys who did not complete the survey after the second request were then telephoned and asked to complete the survey by phone. 2010 Judicial Performance Survey Report 18 ## Page 22 ii. In 2009 the Attorneys Regarding Trial Judges Survey moved from being a paper survey mailed to potential respondents to an online survey. Moving the survey to online permitted asking individual attorneys to evaluate up to five trial judges, and with the exception of the effects of the modified assignment rules 1 through 3 below, it became a survey of all attorneys who had cases before trial judges. Allowing an attorney to evaluate up to five judges, entailed slightly modifying the assignment rules: 1. No attorney would be asked to evaluate the same justice or judge in a 24-month period. 2. If an attorney was eligible to evaluate both a trial judge and an appellate judge, the attorney was assigned to evaluate the appellate judge. 3. If there were more than five judges who could be assigned to the attorney, the attorney was assigned the judges with whom he or she had had the most cases during the sampling time frame, or the judges with the smallest samples in order to even out sample sizes among judges. Attorneys were first mailed a letter about the online survey to let them know that they would soon receive an email with a link to the survey. The Web address of the survey and a password were included in the letter if the attorney wanted to complete the survey immediately. A week after the first email was sent, a follow-up email was sent. Potential respondents who did not complete the survey after the second email were then telephoned and asked to either complete the survey then by phone, or to please complete it online. iii. In 2010 rule #2 above was changed so that an attorney could be asked to evaluate a combination of up to seven trial judges or Court of Appeals judges, if the attorney had had a case before the COA. Attorneys who had cases before the both the Supreme Court and trial judges during the sample time frame were asked to evaluate all seven Supreme Court justices, and not asked to evaluate the trial judges. The results shown in the 2010 Judicial Performance Survey Report for the Attorneys Regarding Trial Judges survey are based on the combined data collected from January 2005 through early February 2010 1 for those questions that have been consistently asked during that time period. Starting in 2010, the Judicial Performance Survey reports are based on a moving average, or rolling sample, of data collected over a period of time equal to the justice’s or judge’s term of office: ten years for a Supreme Court justice, eight years for a COA judge, six years for a district judge and four years for a county judge. To use a district judge as an example: as survey data is collected it is pooled together for six years. After six years, as new data is added to the judge’s survey results in the first quarter of the seventh year, the oldest quarter of data in the pool is deleted. The current data for all judges only goes back as far as 2005—or the year the judge took the bench—therefore the rolling of the data only affects the county judge sample in the 2010 reports. 1 The State Commission on Judicial Performance authorized continuous surveying in 2007. Prior to 2007 data was only collected in the odd numbered years before the retention reports were issued. Therefore, while data was gathered in 2005, 2007, 2008 and 2009, and used in this report, there was no data collected in 2006. 2010 Judicial Performance Survey Report 19 ## Page 23 b. Questions: The survey questions asked respondents to use a grade of A, B, C, D, or F to assess the justice or judge's performance on twelve aspects of judicial performance. (See Questionnaire section.) These grades were then converted to a numerical scores where A = 4, B = 3, C = 2, D = 1 and Fail = 0. The A through F scale was chosen because it is almost universally recognized and understood. This makes it easy for respondents to complete their questionnaire, and for the public to interpret the results. Respondents were also asked if they considered the judge biased toward the defense or prosecution in criminal cases. In a final question, respondents were asked to indicate how strongly they would recommend that the justice or judge be retained or not retained in office. c. Comments: In addition to the A through F questions, respondents were also asked what they considered to be the judge’s strengths and what they considered to be the judge’s weaknesses. By statute these comments are confidential and only provided to the judge and the District Commission on Judicial Performance. They are not released to the public when the rest of the report is released. Before being given to the judge and the Commission, an attempt is made to redact all respondent identifying information from the comments. Since 2005 there have been changes to the number of comment questions, though the strengths and weaknesses questions have been asked in every survey. The number to the left of each comment refers to the same attorney respondent in both the strengths section and the weaknesses section. Most spelling and typographical errors have been fixed, but where the respondent entered a comment in all upper or all lower case, or without punctuation, the comment was not corrected. d. Analysis: The Attorneys Regarding Trial Judges section first shows a table of the percentage distribution for each of the A through F questions, including “don’t know” responses. The next column to the right shows the judge’s average grade for each question. For comparison purposes, averages were also computed for all district judges—including judges who are not eligible to stand for retention in 2010—and are shown in the furthest right column on the page. Tables showing the percentage distribution for all questions for all district judges are located at the end of this methodology section. The overall question averages are calculated by adding up the averages for each question and dividing by the number of questions. 2010 Judicial Performance Survey Report 20 ## Page 24 The next table shows the percentage distribution of the responses to the question about recommending retention. The first column of percentages is for the report-judge and the second column displays the percentages for all district judges. The percentages are shown both including and excluding “don’t know/undecided” responses. The next page displays the question averages in horizontal bar-graph form. The percentage distribution to the retention question is then presented in the graph on the next page. The third part of the Attorneys Regarding Trial Judges section of the report lists the comments the attorney made about the judge’s strengths and weaknesses. e. Cooperation Rate: The overall response rate for the Attorneys Regarding Trial Judges Survey is calculated as the number of completed survey-evaluations divided by the number of possible evaluations. An equivalent response rate for an individual judge is computed as the number of completed survey-evaluations for that judge divided by the number of possible evaluations that could have been completed for the judge. From 2005 to 2010 a total of 7,796 attorneys were asked to participate in the Attorneys Regarding Trial Judges Survey and on average to evaluate 4.3 judges each—a total of 33,257 potential attorney evaluations. A total of 4,986 attorneys responded (64.0%) with one or more survey evaluations, and the average number of judges evaluated per attorney was 2.5 . II Appellate Judges Regarding District Judges a. Sample: All 29 appellate judges (Supreme Court and Court of Appeals) were sent a questionnaire asking them to evaluate the district judges eligible to stand for retention in November 2010. b. Questions: The questionnaire consisted of one question about each district judge concerning his or her overall performance as a judge. (See Questionnaire section.) The A through F responses were converted to a numerical scores where A = 4, B = 3, C = 2, D = 1 and Fail = 0. 2010 Judicial Performance Survey Report 21 ## Page 25 c. Comments: In addition to the A through F questions, the appellate judge respondents were asked to write a comment about each district judge. By statute these comments are confidential and only provided to the district judge and the District Commission on Judicial Performance. They are not released to the public when the rest of the report is released. Before being given to the district judge and the Commission, an attempt is made to redact all respondent identifying information from the comments. An effort has been made to correct spelling and typographical errors. d. Analysis: The District Judges Regarding Appellate Judges section shows a table of the percentage distribution for the one question, including “don’t know” responses. The next column to the right shows the judge’s average grade for each question. For comparison purposes, averages were also computed for all district judges eligible to stand for retention in 2010 and are shown in the furthest right column on the page. The second part of the Attorneys Regarding Appellate Judges lists the comments district and appellate justices and judges wrote about the report-justice. e. Cooperation Rate: A questionnaire was sent to 29 Supreme Court justices and Court of Appeals judges. Twenty-seven questionnaires were returned, though not all 27 showed grades for every district judge. III Non-Attorneys Regarding Trial Judges a. Sample: Talmey-Drake Research & Strategy received case data with the names of non-attorneys who had likely been in each judge’s courtroom from five primary sources: Colorado Judicial Department, Colorado District Attorneys’ Council Denver County Courts District Attorney’s Office, Second Judicial District (Denver) District Attorney’s Office, Ninth Judicial District The data from these different data sources are combined, duplicates removed and addresses corrected. In addition to non-attorneys who had likely been in the judge’s courtroom, names of court employees, including probation officers, were added to the non-attorney sample. 2010 Judicial Performance Survey Report 22 ## Page 26 Depending on the number of names available to be sampled for each judge, a random sample was drawn if the quantity of potential respondents was large. On the other hand, if the count of possible respondents was small, all potential respondents were included in the sample. Where a person had been in more than one judge’s courtroom, the selection criteria for which judge he or she would be sent a questionnaire was generally for the judge in whose courtroom the potential respondent had been in most often. Each person whose name was sampled for the Non-Attorney Survey was mailed an initial postcard informing the recipient that he or she would be receiving a questionnaire. Two to three weeks after the post card was mailed, the potential respondent was sent a personalized introductory letter and a questionnaire with a postage-paid return envelope. If the person did not respond, a second questionnaire and letter were sent approximately four weeks later. Questionnaires are barcoded, and if a respondent mailed back two questionnaires, the second one was deleted from the data file. Starting in 2010, non-attorney section of the Judicial Performance Survey reports are based on a moving average, or rolling sample, of data collected over a period of time equal to the judge’s term of office: six years for a district judge and four years for a county judge. To use a district judge as an example: as survey data is collected it is pooled together for six years. After six years, as new data is added to the judge’s survey results in the first quarter of the seventh year, the oldest quarter of data in the pool is deleted. The current data for all judges only goes back as far as 2005—or the year the judge took the bench—therefore the rolling of the data only affects the county judge sample in the 2010 reports. 2 b. Questions: The survey questions asked respondents to use a grade of A, B, C, D, or F to assess the justice or judge's performance on twelve aspects of judicial performance (See Questionnaire section.) These grades were then converted to a numerical scores where A = 4, B = 3, C = 2, D = 1 and Fail = 0. The A through F scale was chosen because it is almost universally recognized and understood. This makes it easy for respondents to complete their questionnaire, and for the public to interpret the results. Respondents were also asked if they considered the judge biased toward the defense or prosecution in criminal cases. In a final question, respondents were asked to indicate how strongly they would recommend that the justice or judge be retained or not retained in office. A copy of the questionnaire is included in the last section of this report. 2 The State Commission on Judicial Performance authorized continuous surveying in 2007. Prior to 2007 data was only collected in the odd numbered years before the retention reports were issued. Therefore, while data was gathered in 2005, 2007, 2008 and 2009, and used in this report, there was no data collected in 2006. 2010 Judicial Performance Survey Report 23 ## Page 27 c. Analysis: The Non-Attorneys Regarding Trial Judges section first shows a table of the percentage distribution for each of the A through F questions, including “don’t know” responses. The next column to the right shows the judge’s average grade for each question. For comparison purposes, averages were also computed for all district judges—including judges who are not eligible to stand for retention in 2010—and are shown in the furthest right column on the page. Tables showing the percentage distribution for all questions for all district judges are located at the end of this methodology section. The overall question averages are calculated by adding up the averages for each question and dividing by the number of questions. The next table shows the percentage distribution of the responses to the questions about prosecution or defense bias and recommending retention. The first column of percentages is for the report-judge and the second column displays the percentages for all district judges. The percentages for the retention question are shown including and excluding “don’t know/undecided” responses. The next page displays the question averages in horizontal bar-graph form. The percentage distribution of the prosecution-defense bias and retention questions are then presented in the graph on the next page. The third part of the Non-Attorneys Regarding Trial Judges section of the report lists the comments the attorney made about the judge’s strengths and weaknesses. d. Comments: In addition to the A through F questions, non-attorney respondents were asked what they considered to be the judge’s strengths and what they considered to be the judge’s weaknesses. By statute these comments are confidential and only provided to the judge and the District Commission on Judicial Performance. They are not released to the public when the rest of the report is released. Before being given to the judge and the Commission, an attempt is made to redact all respondent identifying information from the comments. Since 2005 there have been changes to the number of comment questions, though the strengths and weaknesses questions have been asked in every survey. The number to the left of each comment refers to the same attorney respondent in both the strengths section and the weaknesses section. 2010 Judicial Performance Survey Report 24 ## Page 28 e. Cooperation Rate: The estimated cooperation rate for the Non-attorney Survey is calculated as the number of completed questionnaires divided by the number of eligible respondents who actually received a questionnaire. The following table shows the total number of questionnaires mailed, completed, non-responses and refusals, undeliverables and other responses. The table presents the estimated overall cooperation rate as well as the cooperation rate by the different types of respondents. The true cooperation rates are likely higher than shown because of the percentage of people who were mailed questionnaires about judges who they had not observed. This is due, in part, to many cases being disposed of without the parties having appeared in court, as well as in the case of law enforcement, the data includes all those who were subpoenaed for a case, not just those who appeared. A table of the response counts by respondent type for Judge Schmalberger is shown below, and on the next page is a table of the overall cooperation rates for both the attorney and non-attorney regarding trial judges surveys for all district judges. 2010 Judicial Performance Survey Report 25 ## Page 29 Judge Donna J. Schmalberger Judge Response Counts by Type of Respondent Total No Undeliverable/ Other Non- Coop Role Type Sent Response Not Applicable Responses Completes Rate Attorneys Criminal District Attorneys 10 4 0 0 6 60.0% Defense Attorneys 6 3 0 0 3 50.0% Civil Attorneys for Litigants 18 6 0 0 12 66.7% Other Attorneys Civil 3 2 0 0 1 33.3% Total Attorneys 37 15 0 0 22 59.5% Non-attorneys Criminal Victim 15 11 2 1 1 7.7% Witness 46 25 14 3 4 12.5% Other 2 1 1 0 0 0.0% Law Enforcement 60 45 5 7 3 5.5% Defendant 36 23 11 0 2 8.0% Civil Litigant 338 171 140 4 23 11.6% Witness 1 0 1 0 0 0.0% Jurors 35 11 0 1 23 65.7% Employees 3 0 0 1 2 66.7% Total Non-attorneys 536 287 174 17 58 16.0% Grand Total: 573 302 174 17 80 20.1% 2010 Judicial Performance Survey Report 26 ## Page 30 Total Response Counts by Type of Respondent for All District Judges Total No Undeliverable/ Other Non- Cooperation Sent Response Not Applicable responses Completes Rate Attorney Evaluations Criminal District Attorneys 1053 667 26 1 359 35.0% Defense Attorneys 1623 920 42 0 661 41.8% Other Attorneys Crmnl 23 14 1 0 8 36.4% Civil Attorneys for Litigants 2540 1157 133 4 1246 51.9% Guardian ad litem 14 5 0 0 9 64.3% Other Attorneys Civil 776 499 21 2 254 33.7% Attorneys, Unknown Role 30 7 5 0 18 72.0% Total Attorneys 6059 3269 228 7 2555 43.8% Non-attorneys Criminal Law Enforcement 3572 1855 929 100 688 27.1% Defendant 11205 5065 5122 70 948 15.8% Victim 31 18 7 1 5 21.7% Witness 3941 2016 1271 186 468 18.8% Other 1045 590 309 11 135 18.6% Civil Litigant 8005 4441 1954 117 1493 25.2% Witness 266 133 61 6 66 33.2% Other 195 84 51 6 54 39.1% Non-attnys, Unknown Role 700 328 282 1 89 21.3% Total Non-attorneys 28960 14530 9986 498 3946 20.8% Others Appellate Judges 29 2 0 0 27 93.1% Jurors 11195 4330 560 132 6173 58.8% Employees 283 113 35 22 113 50.0% Total Other 11507 4445 595 154 6313 57.9% Total 46526 22244 10809 659 12814 35.9% 2010 Judicial Performance Survey Report 27 ## Page 31 Projectability Most surveys seen by the public are surveys that are intended to be projectable, that is the results from the sample of people surveyed can be used to estimate a percentage or value of the population sampled with a known probability of error. For example, a pre- election poll of 500 likely Colorado voters is used to estimate the percentage of voters who will vote for Candidate A versus Candidate B on election day, plus or minus some number of percentage points. The plus or minus amount is usually what is known as the 95%-confidence interval (the known probability of error), or what the media often refers to as the margin-of-error. None of the three surveys that make up this report, Attorneys Regarding Trial Judges, Appellate Judges Regarding District Judges and the Non-Attorneys Regarding Trial Judges, are projectable with a known probability of error because the results are calculated from a self-selecting sample that is self-selecting based on the content and subject matter of the survey. In other words, the potential respondent knows the purpose and content of the survey, and based on that, decides whether to respond to the survey. While projectability within a known probability of error is a highly desirable attribute of a survey, it is often not feasible to achieve. Commercial market research often uses nonprojectable (and small) samples-the most well known of which are for focus groups. Moreover, the federal courts have long accepted, and do not expect, projectable samples for market confusion surveys used in trademark litigation. In other words, one can still use the results of the Judicial Performance Evaluation Survey to estimate how everyone who has observed a justice or judge in the courtroom would grade him or her, just not with a known probability of error. The Judicial Performance Evaluation Survey is a valuable means, perhaps the only practical means, for the Judicial Performance Commissions to have a summary of structured interviews with a number of people who have courtroom familiarity with the judge being evaluated, and who most often - albeit not always - are responding out of a desire to improve the performance of our state's judicial system. 2010 Judicial Performance Survey Report 28 ## Page 32 Survey of Attorneys Regarding Trial Judges All District Judges Average Sample Size = 2555 A B C D Fail DK/NA Grade 1. Case Management: 1a.Promptly issuing a decision on the case after trial. 49% 20% 7% 2% 1% 21% 3.42 1b.Maintaining appropriate control over proceedings. 61% 24% 8% 3% 2% 2% 3.43 1c.Promptly ruling on pre-trial motions. 45% 25% 10% 4% 2% 14% 3.25 1d.Setting reasonable schedules for cases. 50% 27% 11% 4% 2% 5% 3.25 Overall Case Management 3.34 2. Application and Knowledge of Law: 2a.Being able to identify and analyze relevant facts. 54% 26% 10% 4% 2% 3% 3.30 2b.Basing decisions on evidence and arguments. 43% 24% 11% 6% 3% 13% 3.13 2c.Willing to reconsider error in fact or law. 39% 21% 10% 5% 4% 20% 3.09 2d.Issuing consistent sentences when the circumstances are 31% 20% 8% 3% 2% 36% 3.16 similar. Overall Application and Knowledge of Law 3.17 3. Communications: 3a.Making sure all participants understand the proceedings. 65% 23% 6% 2% 1% 2% 3.55 3b.Providing written communications that are clear, thorough 49% 24% 9% 4% 2% 13% 3.32 and well reasoned. Overall Communications 3.44 4. Demeanor: 4a. Giving proceedings a sense of dignity. 67% 21% 6% 2% 2% 1% 3.51 4b. Treating parties with respect. 66% 19% 7% 4% 3% 1% 3.42 4c. Conducting his/her courtroom in a neutral manner. 60% 21% 9% 5% 4% 2% 3.32 4d. Consistently applying laws and rules. 54% 24% 10% 4% 3% 5% 3.28 Overall Demeanor 3.38 5. Diligence: 5a.Using good judgment in application of relevant law and 51% 27% 11% 5% 3% 3% 3.20 rules. 5b.Doing the necessary homework and being prepared for 55% 25% 9% 4% 2% 5% 3.34 his/her cases. 5c.Being willing to handle cases on the docket even when 54% 19% 7% 3% 2% 15% 3.42 they are complicated and time consuming. Overall Diligence 3.32 Overall Average Grade: 3.32 2010 Judicial Performance Survey Report 29 ## Page 33 Survey of Attorneys Regarding Trial Judges Average All District Judges Grade Sample Size = 2555 Would you say the judge is: Very biased in favor of the prosecution 11% Somewhat biased in favor of the prosecution 27% Completely neutral 47% Somewhat biased in favor of the defense 9% Very biased in favor of the defense 2% Don't know or not sure 4% 8. How strongly do you recommend that the Judge be retained in office, or not be retained in office? [Percentages excluding undecided responses.] Strongly recommend retain 74% Somewhat recommend retain 15% Somewhat recommend not retain 5% Strongly recommend not retain 6% Total Retain 89% Total Not Retain 11% [Percentages including undecided responses.] Strongly recommend retain 70% Somewhat recommend retain 14% Undecided or Don't Know 4% Somewhat recommend not retain 5% Strongly recommend not retain 6% Total Retain 84% Undecided/Don't Know 4% Total Not Retain 11% 2010 Judicial Performance Survey Report 30 ## Page 34 Survey of Non-Attorneys Regarding Trial Judges All District Judges Average Sample Size = 10232 A B C D Fail DK/NA Grade 1. Demeanor: 1a.Giving court proceedings a sense of dignity. 78% 15% 4% 1% 1% 1% 3.68 1b.Treating participants in the case politely and with respect. 80% 12% 3% 2% 2% 1% 3.68 1c.Conducting court in a neutral manner. 78% 13% 4% 2% 3% 1% 3.63 1d.Having a sense of compassion and human understanding 73% 15% 4% 2% 3% 2% 3.57 for those who appear before the court. Overall Demeanor 3.64 2. Fairness: 2a.Giving participants an opportunity to be heard. 78% 13% 3% 2% 2% 1% 3.66 2b.Treating those involved in the case without bias. 77% 13% 3% 2% 3% 2% 3.61 2c.Treating fairly people who represent themselves. 49% 8% 2% 1% 2% 38% 3.62 2d.Giving each side enough time to present his or her case. 76% 13% 3% 2% 2% 4% 3.65 Overall Fairness 3.64 3. Communications: 3a.Making sure participants understand the proceedings, and 80% 13% 4% 1% 1% 1% 3.70 what is going on in the courtroom. 3b.Using language that everyone can understand. 79% 15% 3% 1% 1% 1% 3.71 3c.Speaking clearly so everyone in the courtroom can hear 81% 13% 3% 1% 1% 1% 3.73 what is being said. Overall Communications 3.71 4. Diligence: 4a.Beginning court on time 65% 22% 7% 2% 2% 2% 3.50 4b.Maintaining appropriate control over proceedings. 80% 13% 3% 1% 1% 1% 3.73 4c.Setting reasonable schedules for cases. 67% 16% 4% 1% 2% 10% 3.61 4d.Being prepared for cases. 75% 13% 3% 1% 2% 6% 3.68 4e.Managing court proceedings so that there is little wasted 69% 20% 6% 2% 2% 2% 3.55 time. Overall Diligence 3.61 5. Application of Law: 5a.Giving reasons for rulings. 69% 15% 4% 2% 3% 7% 3.57 5b.Willing to make decisions without regard to possible 64% 11% 3% 2% 3% 18% 3.60 outside pressure. 5c.Being able to identify and analyze relevant facts. 71% 13% 3% 2% 3% 8% 3.59 Overall Application of Law 3.59 Overall Average Grade: 3.64 2010 Judicial Performance Survey Report 31 ## Page 35 Survey of Non-Attorneys Regarding Trial Judges Average All District Judges Grade Sample Size = 10232 6. How biased do you think the Judge is toward the defense or prosecution? [Please see the questionnaire at the end of report for question wording.] Biased in favor of the prosecution total 10% Competely neutral 84% Biased in favor of the defense total 7% Average 0.08 7. How lenient or harsh do you think the sentences generally handed down by Judge are? [Please see the questionnaire at the end of report for question wording.] Harsh sentencing total 10% Competely neutral 80% Lenient sentencing total 11% Average 0.07 10. How strongly do you recommend that the Judge be retained or not retained in office? [Percentages excluding undecided responses.] Strongly recommend retain 87% Somewhat recommend retain 6% Somewhat recommend not retain 2% Strongly recommend not retain 4% Total Retain 93% Total Not Retain 6% [Percentages including undecided responses.] Strongly recommend retain 82% Somewhat recommend retain 6% Undecided or Don't Know 6% Somewhat recommend not retain 2% Strongly recommend not retain 4% Total Retain 88% Undecided/Don't Know 6% Total Not Retain 6% 2010 Judicial Performance Survey Report 32 ## Page 36 Survey of Appellate Judges Regarding District Judges All District Judges DK/ Sample Size = 27 A B C D Fail NA All district judges eligible to stand for retention in 2010. 28% 15% 3% 0% 0% 54% 2010 Judicial Performance Survey Report ## Page 37 QQuueessttiioonnnnaaiirreess ## Page 38 Colorado Judicial Performance Attorneys Regarding Trial Judges Survey Questions _ Which of the following types of cases have you observed Judge (Last Name)’s performance? Please circle all that apply. (Only respondents who indicate they have observed the judge in “criminal other than traffic” cases will be asked question 2c and question 6.) Civil . 1 Criminal other than traffic . 2 Traffic . 3 Domestic . 4 Juvenile . 5 Probate . 6 Other . 9 1. Case Management: a. Promptly issuing a decision on the case after trial. A B C D F DK/NS b. Maintaining appropriate control over proceedings. A B C D F DK/NS c. Promptly ruling on pre-trial motions. A B C D F DK/NS d. Setting reasonable schedules for cases. A B C D F DK/NS 2. Application and Knowledge of Law: a. Being able to identify and analyze relevant facts. A B C D F DK/NS b. Basing decisions on evidence and arguments. A B C D F DK/NS c. Willing to reconsider error in fact or law. A B C D F DK/NS d. [Criminal only] Issuing consistent sentences when the circumstances are similar. A B C D F DK/NS 3. Communications: a. Makings sure all participants understand the proceedings. A B C D F DK/NS b. Providing written communications that are clear, thorough and well reasoned. A B C D F DK/NS 4. Demeanor: a. Giving proceedings a sense of dignity. A B C D F DK/NS b. Treating participants with respect. A B C D F DK/NS c. Conducting his/her courtroom in a neutral manner. A B C D F DK/NS d. Consistently applying laws and rules. A B C D F DK/NS 5. Diligence: a. Using good judgment in application of relevant law and rules. A B C D F DK/NS b. Doing the necessary “homework” and being prepared for his/her cases. A B C D F DK/NS c. Being willing to handle cases on the docket even when they are complicated and time consuming. A B C D F DK/NS 1 ## Page 39 Having observed Judge (Last Name) in a criminal case, would you say the judge is: (This question is asked only if respondent indicated at the beginning of the survey he/she observed the judge in a criminal case.) Very biased in favor of the prosecution . 1 Somewhat biased in favor of the prosecution . 2 Completely Neutral . 3 Somewhat biased in favor of the defense . 4 Very biased in favor of the defense . 5 Don’t Know/Not Sure . 9 6. What would you say are Judge (Last Name)’s strengths? _ _ _ 7. What would you say are Judge (Last Name)’s weaknesses? _ _ _ 8. Keeping in mind your responses to each of the previous questions, how strongly do you recommend that Judge (Last Name) be retained in office, or not retained in office? Strongly recommend he be retained in office . 5 Somewhat recommend he be retained in office . 4 Undecided or don’t know enough to make recommendation . 3 Somewhat recommend he not be retained in office . 2 Strongly recommend he not be retained in office . 1 2 ## Page 40 9. And what would you say are Judge [Last Name]’s weaknesses? ___________________________________________________________ ___________________________________________________________ ___________________________________________________________ ___________________________________________________________ Commission on Judicial Performance ___________________________________________________________ ___________________________________________________________ Evaluation of 10. Keeping in mind your responses to each of the previous questions, how JUDGE [FULL NAME] strongly do you recommend that Judge [Last Name] be retained in office, or not retained in office? Strongly recommend he/she be retained in office ................................ 5 Somewhat recommend he/she be retained in office ............................ 4 Undecided or don’t know enough to make recommendation ............. 3 If we have made a mistake and you either were not in Judge [Last Somewhat recommend he/she not be retained in office ..................... 2 Name]’s courtroom in the past 18 months, or you feel that you do not Strongly recommend he/she not be retained in office ......................... 1 have sufficient experience with Judge [Last Name] to have an opinion the judge’s judicial performance, please just return this questionnaire, unanswered, in the enclosed postage-paid envelope, to stop any further requests to evaluate Judge [Last Name]. Thank you for taking the time to complete this questionnaire. Please place it in the self-addressed, postage-paid envelope provided and place it in the mail. Your participation in this survey is very much appreciated. Using a grade scale, where an “A” is excellent along with B, C, D or F for fail, please grade the judge on the following. (If you feel that you don’t have experience with the judge in a specific area, or just don’t know, please circle the number corresponding to “Don’t Know/Not Applicable”—DK/NA). DK 1. Demeanor: A B C D F N/A a. Giving court proceedings a sense of dignity. 4 3 2 1 0 9 b. Treating participants in the case politely and with respect. 4 3 2 1 0 9 c. Conducting his/her courtroom in a neutral manner. 4 3 2 1 0 9 d. Having a sense of compassion and human understanding for those who appear before him/her. 4 3 2 1 0 9 ## Page 41 DK 6. [If you were in [Last Name]’s courtroom during a criminal case or 2. Fairness: A B C D F N/A cases please answer this question, otherwise skip to the next a. Giving participants an opportunity to be heard. 4 3 2 1 0 9 question.] On the scale below, please indicate by circling the appropriate b. Treating those involved in the case without bias. 4 3 2 1 0 9 number how biased you think Judge [Last Name] is toward the defense or c. Treating fairly people who represent themselves. 4 3 2 1 0 9 the prosecution. If you feel Judge [Last Name] is completely unbiased, circle “0.” d. Giving each side enough time to present his or her case. 4 3 2 1 0 9 Bias toward Completely Bias toward Defense Neutral Prosecution DK 5 4 3 2 1 0 1 2 3 4 5 3. Communications: A B C D F N/A a. Makings sure participants understand the 7. [If you were in [Last Name]’s courtroom during a criminal case or proceedings, and what’s going on in the cases please answer this question, otherwise skip to the next courtroom. 4 3 2 1 0 9 question.] On the scale below, please indicate by circling the appropriate b. Using language that everyone can understand. 4 3 2 1 0 9 number how lenient or how harsh you think the sentences generally handed c. Speaking clearly so everyone in the courtroom down by [Last Name] are. If you feel Judge [Last Name] generally hands can hear what’s being said. 4 3 2 1 0 9 down appropriate sentences, circle “0.” DK Sentences Appropriate Sentences 4. Diligence: A B C D F N/A Too Light Sentences Too Harsh a. Beginning court on time. 4 3 2 1 0 9 5 4 3 2 1 0 1 2 3 4 5 b. Maintaining appropriate control over proceedings. 4 3 2 1 0 9 c. Setting reasonable schedules for cases. 4 3 2 1 0 9 d. Being prepared for his/her cases. 4 3 2 1 0 9 Though your name will never be associated with your answers, because the judge will e. Managing court proceedings so that there is see a typed transcript of the comments that you and others write, it is important that little wasted time. 4 3 2 1 0 9 you do not include information in the comments below that would unintentionally identify you as the author. 8. What would you say are Judge [Last Name]’s strengths? DK ___________________________________________________________ 5. Application of Law: A B C D F N/A ___________________________________________________________ a. Giving reasons for rulings. 4 3 2 1 0 9 ___________________________________________________________ b. Willing to make decision without regard to ___________________________________________________________ possible outside pressure. 4 3 2 1 0 9 ___________________________________________________________ c. Being able to identify and analyze relevant facts. 4 3 2 1 0 9 ___________________________________________________________ Continued on Back Page ## Page 42 Using a grade scale, where an “A” is excellent along with B, C, D or F for fail, please grade the following district judges in terms of each one’s overall performance as a judge by circling the appropriate letter grade. If you feel that you don’t have enough information about a judge to mark a specific grade, please put a check in the box under “No Grade.” If there are any judges you would like to add a comment about, please do so by filling out comment section on pages 3 and 4, or by enclosing a separate sheet with your comments when you return this questionnaire. Please start each comment with the judge’s name and district. Thank you. 1st Judicial District No Grade 4th Judicial District (continued) No Grade Dennis Hall .................... A B C D F James P. Kelly .............. A B C D F Philip J. McNulty ............ A B C D F Gilbert Martinez ............. A B C D F Stephen M. Munsinger .. A B C D F G. David Miller .............. A B C D F 2nd Judicial District 5th Judicial District Edward D. Bronfin ......... A B C D F R. Thomas Moorhead ... A B C D F Norman D. Haglund ...... A B C D F Karen A. Romeo ........... A B C D F William W. Hood, III ....... A B C D F Michael A. Martinez ....... A B C D F 6th Judicial District .... William D. Robbins ....... A B C D F Gregory G. Lyman ........ A B C D F Donna J. Schmalberger A B C D F Jeffrey R. Wilson ........... A B C D F Herbert L. Stern, III ........ A B C D F 7th Judicial District C. Jean Stewart ............. A B C D F Jeff B. Herron ................ A B C D F Brian Whitney ................ A B C D F 8th Judicial District David B. Woods ............ A B C D F Jolene C. Blair ............... A B C D F 3rd Judicial District Terence Gilmore ........... A B C D F Leslie J. Gerbracht ........ A B C D F Daniel J. Kaup ............... A B C D F 4th Judicial District Gregory M. Lammons ... A B C D F David A. Gilbert ............. A B C D F Stephen J. Schapanski . A B C D F Deborah J. Grohs .......... A B C D F 9th Judicial District Barney Iuppa ................. A B C D F Gail Nichols ................... A B C D F 1 ## Page 43 10th Judicial District 20th Judicial District No Grade No Grade Thomas B. Flesher ........ A B C D F Lael E. Montgomery ...... A B C D F Jill S. Mattoon ................ A B C D F 21st Judicial District Larry C. Schwartz .......... A B C D F Dick Gurley ................... A B C D F 11th Judicial District Valerie J. Robison ......... A B C D F Stephen A. Groome ...... A B C D F 22nd Judicial District 12th Judicial District Sharon L. Hansen ......... A B C D F Martin A. Gonzales ........ A B C D F Douglas S. Walker ........ A B C D F 13th Judicial District (None) 14th Judicial District Please use the following pages or attach a sheet Mary C. Hoak ................ A B C D F for comments you would like to make about any 15th Judicial District of these district Judges. Stanley A. Brinkley ........ A B C D F 16th Judicial District Michael A. Schiferl ........ A B C D F Thank You. 17th Judicial District John T. Bryan ................ A B C D F C. Scott Crabtree .......... A B C D F Katherine R. Delgado .... A B C D F Thomas R. Ensor .......... A B C D F F. Michael Goodbee ...... A B C D F Patrick T. Murphy .......... A B C D F C. Vincent Phelps, Jr. .... A B C D F Jill-Ellyn Straus .............. A B C D F 18th Judicial District Angela Arkin .................. A B C D F Richard B. Caschette .... A B C D F Timothy L. Fasing .......... A B C D F Jeffrey K. Holmes .......... A B C D F Carlos Armando Samour,Jr. A B C D F William B. Sylvester ...... A B C D F Elizabeth Ann Weishaupl A B C D F 19th Judicial District Julie C. Hoskins ............ A B C D F Daniel Maus .................. A B C D F Thomas J. Quammen .... A B C D F 2 ## Page 44 Though your name will never be associated with your answers, because each district judge will see a typed transcript of the comments people wrote about him or her, it is important that you do not include information in the comments below that would unintentionally identify you as the author. Judge Name Comments _:_ _ _ _ _ _ _:_ _ _ _ _ _ _:_ _ _ _ _ _ _:_ _ _ _ _ _ 3 ## Page 45 Though your name will never be associated with your answers, because each district judge will see a typed transcript of the comments people wrote about him or her, it is important that you do not include information in the comments below that would unintentionally identify you as the author. Judge Name Comments _:_ _ _ _ _ _ _:_ _ _ _ _ _ _:_ _ _ _ _ _ _:_ _ _ _ _ _ 4
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- 2016 evaluation on OJPE · scraped Apr 17, 2026
- 2010 evaluation on OJPE · scraped Apr 17, 2026