Judge Erin Fernandez-Ely: ‘The people’s judge’
Retiring after a 21-year run in Pitkin County, judge fostered culture to help defendants in more human ways
In the 21 years Pitkin County Judge Erin Fernandez-Ely has been on the bench, she has helped lead the many strides made in approaching criminal defendants in a more humanistic manner by offering them resources rather than throwing them in jail.
Fernandez-Ely, who is retiring later this year, is considered by her peers as a pioneer in creating alliances with professionals in mental health, substance abuse, law enforcement and the judicial system to create programs that are designed to help people get out of the system with the proper rehabilitation.
“Her style is born out of compassion,” said Jeff Cheney, district attorney for the Ninth Judicial District, who has worked with Fernandez-Ely since her appointment by Gov. Bill Owens in 2000. “She has a heart of gold and cares about everyone who comes before her in court.”
Fernandez-Ely said it became very clear in her first few days as county judge that mental illness, substance abuse and homelessness permeated the criminal justice system.
Pretrial services and diversion programs were established within the Ninth Judicial District and county court early in her tenure, including partnering with the Pitkin County Sheriff’s Office and a now-defunct organization called the Right Door to include mental health support services, case management and monitored abstinence.
“It was a wonderful, hands-on experience,” Fernandez-Ely said, noting that 80% of arrests and cases in her court are alcohol related, whether it’s assault, domestic violence or driving under the influence.
Working under the umbrella of problem-solving courts
There are fewer people going through the proverbial revolving door of the local criminal justice system as a result of establishing pretrial services in which a team of professionals and counselors work with defendants one on one to get to the root cause of why they are on the wrong side of the law.
“I do think a lot of people benefit from it,” said Roger Adams, who worked with Fernandez-Ely as a case manager in pretrial services for Pitkin County courts. “She is a trend-setter and responsible in some ways for the progressive stuff happening in Pitkin County.”
Problem-solving and wellness courts, such as drug court and DUI court, were established in the Ninth Judicial District in the early and mid 2000s.
Seeing a need to address the mentally ill coming through her courtroom and to reduce recidivism, Fernandez-Ely established mental health court in the Ninth Judicial District through state judicial community advisory meetings.
The idea was to disentangle the system so jail is not the solution, and a host of resources are provided as options for the defendant that involves Mind Springs Health, an Aspen counseling center that contracts with the Ninth Judicial District’s probation department, along with the public defender and the district attorney’s office and jail administrators.
Once in the program, participants receive help with medical and medication management, housing, employment, therapy and other needs.
The atmosphere of the wellness court is motivational rather than adversarial, with Fernandez-Ely often acting more like a counselor than a judge.
“She is the people’s judge,” said Lauren Maytin, an Aspen-based criminal defense attorney. “Parties in her court are treated humanely, their stories are heard … she’s had a broad spectrum of impact on people.”
Fernandez-Ely’s style is to let “people go on and on and I don’t worry about time,” she said. “I feel like there is a cathartic element to it.”
Fernandez-Ely’s colleagues describe her demeanor as engaging, neutral, fair, patient, and consistent.
She seeks to resolve conflicts using all the tools available to her, including firmness when necessary.
Abe Hutt, a Denver-based criminal defense attorney, said Fernandez-Ely is the benchmark of a good judge and he would like to clone her for the big city.
“She is ready, willing and able to be tough on people and she is ready, willing and able to be compassionate and lenient,” he said. “She has every trait you would want in a judge, especially in a county court.”
The Aspen Police Department now has dedicated officers who are trained in handling individuals with mental illnesses, which evolved from mental health court.
Pitkin County Health and Human Services expanded outreach with a grant for what’s called the Pitkin County Area Crisis Team in which a therapist rides along with an officer on 911 calls.
A different approach to misdemeanors, civil cases
Fernandez-Ely estimated that she’s seen around 30,000 people come before her in Pitkin County Court, whether it’s for small claims, civil lawsuits, restraining orders, evictions, petty offenses, domestic violence cases, assaults or DUIs.
When she first started the caseload was about 1,700 cases a year but that has been reduced by several hundred due to the programs in place that are designed to help people in crisis, along with Fernandez-Ely’s passion for making a difference in their lives.
“One of the good things about county court is that you have that connection for progressive engagement, that’s the term that really calls to me,” she said. “So much of it is addiction and mental health that it should be behavioral science, transformative justice.”
So she has worked diligently over the years to create a framework and approach for responding to violence, harm and abuse.
Progressive engagement is the practice of helping people end their homelessness as rapidly as possible.
The local system provides family information assistance and in 2008, the Aspen Homeless shelter was established, offering showers, a place to wash clothes, and access to a computer and a mailbox to help people get on their feet.
“It’s the simple things that help,” Fernandez-Ely said.
Restorative justice is a system of criminal justice which focuses on the rehabilitation of offenders through reconciliation with victims and the community at large.
Cheney said his exposure to that ethos had an indelible effect on him as a young prosecutor.
“I give credit to her for motivating me to appreciate restorative justice, having compassion for both sides,” he said. “I owe Erin a debt of gratitude of teaching me the importance of it.”
When it comes into play most often are careless driving causing death cases, which Fernandez-Ely said are the most difficult.
“You try to address the harm done and you try to honor the victim and the family,” she said, adding that she tailors useful public service based on the victim’s wishes. “It feels like they are engaged in the punishment and that’s what is so difficult about those cases because the consequences are so much more significant than the culpability.
“Those are super hard, it makes your stomach hurt, it makes your heart hurt because there is nothing you can do to bring back the person.”
Fernandez-Ely, 68, said she wanted to retire before the case in which a local woman struck and killed a 5-year-old with her SUV while she was crossing the street on Hyman Avenue came before her.
“I lose sleep over every one of those,” she said. “It’s heartbreaking.”
The defendant, Heidi Houston, avoided jail time as part of a plea deal, and part of her sentence was to come up with a plan that honors the victim, Hannah Heusgen’s love of ballet and horses at the wishes of her family.
Fernandez-Ely’s retirement goal was extended, however, due to the pandemic, which she said would not have been fair to a new judge to have to deal with virtual hearings while learning the job.
“That wasn’t the right thing to do to drop on someone,” she said.
Before and after the Pitkin County bench
Prior to replacing county judge Tam Scott, Fernandez-Ely practiced law for 20 years in Aspen.
She had been a civil practitioner and was one of the plaintiff’s attorneys in the 1982 case of Pennobscot Inc. (et al.) vs. Pitkin County, considered one of the most important land-use cases in the state. The decision limited the county’s powers in regulating development on property of 35 acres or more.
Before coming to Aspen, Fernandez-Ely was a prosecutor in South Florida, specializing in white-collar crimes and felonies.
She received her degree in philosophy from Wellesley College in Massachusetts and graduated from the University of Florida law school.
Fernandez-Ely’s official retirement date is Oct. 31.
After that, she said she’ll continue to volunteer in the areas of homelessness and mental health in the criminal justice system, as well as travel with her husband, John, garden, paint and get some projects done at home.
The job is part-time at a 55% weighted caseload and pays $93,931.
There are nine people who have applied, and a seven-person commission will meet on Tuesday to interview applicants and send two to three finalists to Gov. Jared Polis, who has 15 days to make an appointment.
“I’m keeping my fingers crossed that the governor appoints someone with the same qualities,” Hutt said.
Maytin, who serves on the commission, said there are some outstanding candidates but it will be difficult to replace Fernandez-Ely.
“She’s somewhat irreplaceable,” Maytin said. “She is truly one-of-a-kind and forever she will have a place in my heart and in this community.”
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