Hearing impaired Denver lawyer's lawsuit over jury duty moves forward

A Denver lawyer excused from jury duty over his hearing impairment can move forward with his lawsuit against the Denver County Court. In a ruling from Denver District Court judge Mark T. Bailey a motion to dismiss the case from the Denver City Attorney's Office, representing the County Court was denied. 

Spencer Kontnik is a lawyer with the firm Kontnik Cohen. He is deaf in one ear and impaired in the other and wears a hearing aid. Kontnik got the backing of the Colorado Cross Disability Coalition in filing suit against the court as well as the Denver District Attorney and the Public Defender's Office after attempting to serve jury duty in 2021. 

"I try jury trials, I would love to have the perspective of sitting on a jury and understanding you know what it's like to be in a deliberation room with a bunch of other jurors," said Kontnik.

He showed up with an interpreter who had what is known as a CART system, an acronym for, "Communication Access Real-time Translation." It is similar to a closed captioning system so people who are hearing impaired can follow along as difficult to hear court activities occur. 

But after a few minutes, the interpreter came out and told him he had been excused, that they had hoped to conclude the trial in a day and thought his disability might be a problem. 

The judge in the case, Judith Smith indicated that the prosecution and defense thought it would be "tough for him." The court did not talk to Kontnik about whether he believed his disability might affect his ability to follow the trial. 

"The idea that that would just slow things down and make it impossible to finish in a day is just not true," said Kontnik. "I went from being confused to kind of like a little embarrassed because I'm in front of everybody and walking out of the courtroom, to then being just like, very angry."

Courts do have court reporters writing down everything the court says. They accommodate people with hearing issues such as defendants and attorneys like Kontnik, who has been in jury trials. 

"If you're going to strike me because I'm an attorney I get that. But the idea that they were going to strike me because I have a hearing impairment, that's what really stuck with me and really hurt."

In court filings, a letter from Judge Smith to presiding Judge Theresa Spahn, judge Smith wrote, "When a defendant has asked to strike a juror and the prosecution agrees, the judge usually honors that stipulation so long as it is not unconstitutional," then went on to explain:

"Consequently, my focus was only on whether the parties' stipulation was unconstitutional under Batson v. Kentucky, 476 u. s. 79 (1986) and J.E. B. V Alabama ex rel. T. B., 114 S. Ct. 1419 (1994). Those cases held that striking potential jurors based on race or gender is unconstitutional. Colorado's Court of Appeals held that striking a person for any other reason, even a disability protected by the ADA, is not. Donelson v. Fritz (Colo. Ct. App. 2002)"

Kontnik settled with both the District Attorney and the Public Defender, who agreed to conduct training on the issue and the DA's office paid $6,250 and the State's Office of Risk Management on behalf of the Public Defender, $3,000 which Kontnik says he sent on two nonprofits, The Deaf and Hard of Hearing Bar Association and Denver Active 20-30, a fund run by the Denver Children's Foundation. But the court has continued to contest the case. Kontnik says he will move forward to the next steps.

"The whole idea is that you want a jury of your peers and if you don't have disabled jurors on the jury then you are not getting a jury of your peers."