DENVER — A Colorado appeals panel on Wednesday appeared skeptical that a trial judge could use former county clerk Tina Peters’ insistence on spreading election conspiracy theories as part of the reason to sentence her to nine years in prison for orchestrating a data breach involving election equipment.
The three-judge panel dismissed many arguments Peters’ attorneys made in her appeal, but it focused heavily on comments District Court Judge Matthew Barrett made during sentencing and whether those comments went beyond the specific crimes the jury convicted Peters of, according to court arguments described at the hearing.
Appeals Judge Craig Welling pressed the state lawyer on the limits of sentencing, saying, “The court cannot punish her for her First Amendment rights.” The remark came as the panel questioned how Barrett treated Peters’ public statements about elections when he imposed the term.
The panel’s attention also reflected the broader political backdrop around Peters’ case. President Donald Trump has embraced Peters as he has continued to claim, without evidence, that fraud cost him the 2020 presidential election. Trump has threatened Colorado with “harsh measures” if the state does not release her, and he issued a pardon last month, though prosecutors said the underlying state convictions cannot be erased by the president.
Peters’ attorneys did not center the pardon argument during oral arguments because, as one legal team member described, they did not have time within the 30 minutes allotted. In court, Peter Ticktin said the legal team had limited time to address that issue and added that he thinks Gov. Jared Polis will consider clemency, describing Peters’ sentence as “harsh.”
In describing what the panel viewed as potentially improper in Barrett’s sentencing, prosecutors argued that Barrett was responding to a presentation Peters had just concluded during the sentencing hearing and that her arguments about election fraud were part of what she placed before the court. Senior Assistant Attorney General Lisa Michaels told the judges Barrett “made clear” he was imposing a sentence tied to the crimes of conviction and said Peters had brought a “slideshow” with extensive pages about the debunked election claims.
Michaels said, of Peters’ submission, “She made it relevant,” describing the length and detail of the materials. But the judges also raised concerns about specific language Barrett used when addressing elements of one offense. The panel expressed alarm, prosecutors said, that one of the elements—criminal impersonation—had been presented to the jury with language that matched the misdemeanor version rather than the felony one, an issue the panel said affected how Barrett incorporated the court’s findings in sentencing.
Peters’ appeal comes from a conviction tied to her role in a Mesa County election system breach. Prosecutors said she used another person’s security badge to allow a former surfer affiliated with Mike Lindell, Conan Hayes, to observe a software update of the county’s election management system, and that Hayes made copies of the system’s hard drive both before and after the update. Investigators later found partially redacted security passwords online; prosecutors said Hayes was not charged with wrongdoing.
At sentencing, Peters did not deny the deceptive conduct but argued she acted to preserve election records and that she should not have been prosecuted because she had a duty under federal law to preserve them. Wednesday’s panel appeared sharply skeptical of that contention as well.
Peters’ lawyers also argued that she is entitled to at least a new sentencing hearing because Barrett based part of the term on a contempt conviction in a related case that an appeals court threw out last year. Prosecutors told the panel that Barrett appropriately tied his sentencing reasoning to the crimes the jury convicted Peters of, but the judges’ questions left open whether the appeals court will find reversible problems.
It was unclear when the panel might issue a ruling. If the appeals court concludes there were errors in how Peters was sentenced, it could send the case back for resentencing. Until then, Peters remains in prison in Pueblo, where she is serving her nine-year sentence after being convicted in 2024 in her home county, a Republican stronghold that supported Trump.
The case has also become a cause célèbre among election conspiracy supporters. Trump has criticized both Polis and the Republican district attorney, Dan Rubinstein, who brought the charges, and the Federal Bureau of Prisons tried unsuccessfully to move Peters to a federal facility.
Some supporters have also sought immediate release through public pressure. Jake Lang, who had been charged with assaulting an officer during the Jan. 6, 2021, attack on the U.S. Capitol and was later pardoned by Trump, announced on social media that “January 6er Patriots” and U.S. Marshals would storm a Colorado prison to release Peters unless she is freed by the end of the month. After the post, Peters’ own account said she was not affiliated with any demonstration or event at the prison and denounced any use of force.