DENVER (CN) - Tina Peters, a former clerk and recorder for Mesa County, asked the Colorado Court of Appeals on Wednesday to overturn a jury's criminal convictions related to her role in leaking voting machine data from the 2021 Grand Junction municipal election.

"What is a clerk supposed to do when she suspects the secretary of state may be about to destroy federal election records on county computers that federal law requires her to preserve?" asked attorney John Case, who also represented Peters through her trial.

Peters has long argued the supremacy clause entitles her to immunity from her state charges since she was following a federal requirement to protect election records.

A three-judge appellate panel questioned Case on where Peters obtained a federal duty to investigate the state's handling of election records, which Case argued came baked into the job.

In the wake of the 2020 presidential election, as Donald Trump characterized Joe Biden's win as the "the Big Lie," a group of Peters' conservative constituents in western Colorado started questioning her on the results of the 2021 Grand Junction municipal election, several months later.

Peters learned a voting machine update would erase the computers' records, prompting her to instruct her deputy clerk to turn off security cameras and arrange for an unauthorized associate, Conan Hayes, to observe and photograph the trusted build process.

Following a 10-day trial in August 2024, a jury found Peters guilty of three felony counts of attempting to influence a public servant and one felony count of conspiracy to commit impersonation, plus misdemeanor counts of official misconduct, violating her duties and failing to comply with the secretary of state's requirements.

Twentieth Judicial Judge Matthew Barrett sentenced Peters to nine years in prison.

Wednesday, Colorado Court of Appeals Judge Ted Tow asked why Peters needed to conceal Hayes' identity at all, if she believed she had the authority to bring him in. Case explained that state workers would have called off the voting machine update if they knew Hayes' true identity.

"In other words she wanted to trick the secretary of state with going forward with the trusted build?" Tow asked.

Case answered affirmatively.

Case additionally questioned the state court of appeals' ability case to hear the appeal after President Donald Trump attempted to pardon Peters on Dec. 5. While it's been commonly understood that the U.S. president does not have the power to overturn state convictions, Colorado Governor Jared Polis, a Democrat, told Colorado Public Radio he is reviewing whether to grant clemency to 70-year-old Peters, due to her age and declining health.

Colorado Court of Appeals Judge Craig Welling advised Case against asking the court to bow out from reviewing the appeal.

"The problem with your argument is that if you're right, then we can't review the conviction and it stands," Welling said. "I think what you're asking us to find is that the trial court erred in its substantive duty to find her immunity."

Senior Assistant Attorney General Lisa Michaels asked the court to affirm both Peters' conviction and sentence, characterizing any errors as harmless.

Playing devil's advocate, Colorado Court of Appeals Judge Lino Lipinsky asked Michaels to consider the viable options Peters had if she had been correct about the state trying to delete or falsify election records.

"What if she was right and the secretary of state was monkeying with the election results, what was she supposed to do?" Lipinsky asked.

Michaels replied that Peters could simply backed up election records before the voting machine update, which she did. Peters, however, was neither charged nor convicted of making a copy of voting machine records - her convictions hinge on her concealing Hayes' identity so he could observe the voting machine update.

Tow pressed Michaels on the trial court's decision to limit Peters' ability to inform the jury of her motives, since the law required the misconduct to be carried out for the benefit of the official or someone else.

"If there's a specific intent crime, the prosecution has to prove that specific intent of the crime, and she says 'even if I did what I did, my intent wasn't that and here's the evidence,' the jury has to hear that evidence in order to prove the charge," Tow said.

Tow also questioned why Peters was convicted on felony conspiracy when the language presented to the jury was that of misdemeanor conspiracy, which carries a lower sentence.

"Is it your position that someone can be convicted of a crime they were never charged with and the jury was never instructed on, just because the evidence is still there?" Tow asked.

Welling also pressed Michaels defending the entering of the wrong criminal charge.

"I am baffled you are standing by that argument and aren't just saying 'we'll take the misdemeanor,'" Welling said. "It's not a position the people have to take. The jury was affirmatively misinstructed on the misdemeanor."

In December 2024, the Colorado Court of Appeals vacated a contempt citation against Peters, after finding insufficient evidence to support the claim that she violated a court prohibition on recording in the courtroom in 2022. Since the trial judge had considered the contempt citation during sentencing for her felony convictions, Case argued this also warranted she receive a new sentence with a different judge.

All three appellate judges were appointed by Democratic Governor John Hickenlooper.

At the conclusion of the hearing, Welling promised a decision in due course.

Source: Courthouse News Service