Original Proceeding Pursuant to C.A.R. 21 District Court,
City and County of Denver, Case No. 17CR20001 Honorable
Kenneth M. Laff, Judge.
Attorneys for Plaintiff: Beth McCann, District Attorney
Johanna G. Coats, Deputy District Attorney Denver, Colorado
Attorneys for Defendant: Appeal to Justice, LLC Amy D.
Trenary Broomfield, Colorado
CHIEF JUSTICE does not participate.
After being charged with first degree murder as an adult in
district court, Brandon Brown exercised his statutory right
to request a "reverse transfer" to juvenile court.
In doing so, he asks us to address whether he may temporarily
waive privilege as to certain information at the
reverse-transfer hearing without suffering a continued waiver
We hold that he may not. Nothing in the reverse-transfer
statute gives Brown the ability to make such a limited
waiver. And, neither common law scope-of-waiver limitations
nor constitutional principles regarding impermissibly
burdening rights changes that result. By disclosing otherwise
privileged information in open court during a
reverse-transfer hearing, Brown would waive privilege as to
any such information at trial. Because we agree with the
trial court's ruling to the same effect, we discharge our
rule to show cause.
Facts and Procedural History
Brandon Brown was charged as an adult in district court for
crimes alleged to have taken place in 2012, when he was
seventeen years old. The district attorney charged Brown with
one count of first degree murder, eight counts of attempted
first degree murder, and one count of conspiracy to commit
aggravated robbery. Brown exercised his statutory right to
seek a reverse transfer, a process that could result in his
case being transferred from district court, where he would be
tried as an adult, to juvenile court, where he would face
prosecution under the Children's Code. See
§ 19-2-517(3)(a), C.R.S. (2018) (outlining the
procedures for transferring a case from district court to
Before the reverse-transfer hearing, however, Brown sought a
protective order, requesting that the district court prohibit
the prosecution from using at trial "[a]ny evidence
presented at the reverse-transfer hearing, and/or in briefs
related to the issue of reverse-transfer." In addition
to this wide-ranging request, Brown specifically singled out:
• expert reports;
• medical, dental, mental health, and/ or psychological
evaluations, screenings, or treatment, and any records
underlying such evaluations or records upon which such
evaluations are based;
• school records;
• Department of Human Services records;
• records of dependency and neglect proceedings;
• confidential records maintained by agencies of the
judicial department or executive branch; and
• any other confidential records.
The district court denied the request for the protective
order altogether. It found that it was "unlikely that
the type of evidence generally presented at a reverse
transfer hearing would be relevant and admissible at a
trial." But, in any event, it held that "neither
case law nor statute" empowers a defendant at a
reverse-transfer hearing to introduce privileged information
without waiving privilege as to that information.
We granted Brown's petition for a rule to show cause
pursuant to C.A.R. 21. He argues that the district court
abused its discretion by refusing to issue the protective
We first address why jurisdiction is appropriate under C.A.R.
21. Because this is a question of first impression as to
which a remedy on appeal could prove inadequate, we choose to
exercise our original jurisdiction. Second, we identify the
standard of review. Third, we analyze whether Brown can
partially waive privilege during the reverse-transfer
hearing. We conclude that ...