Judge raps DA's office

STEAMBOAT SPRINGS -- A district court judge on Wednesday reduced a felony sexual assault charge against a former Craig man to a misdemeanor, citing procedural violations by the 14th Judicial District Attorney's Office.

Judge Michael O'Hara, the chief judge of the 14th Judicial District, amended the charge "as a sanction against the District Attorney's Office for flagrant and preposterous violations of rules of discovery and court orders."

O'Hara said he seriously considered dismissing the charge altogether.

The pattern of violations is inexcusable, O'Hara said. Penalties have been levied in previous cases because the District Attorney's Office failed to turn over evidence and follow court orders. The judge said such infractions give the impression that prosecutors aren't bound by the rules of due process.

O'Hara's ruling came after a lengthy motions hearing. Witnesses, including District Attorney Bonnie Roesink, testified during four separate court sessions that stretched to April 9.

The defendant, who lives in New Mexico, was charged with sexual assault, a Class 4 felony. O'Hara reduced the charge to unlawful sexual conduct, a Class 1 misdemeanor. The defendant's accuser said the man drugged and raped her after a party in September 2001.

The defense attorney, Colorado Deputy Public Defender Sheryl Uhlmann, filed a motion to impose sanctions based on about 10 factors.

Uhlmann said that on numerous occasions the prosecution had information about the case and failed to turn it over to the defense, despite an ethical obligation to do so.

In September 2003, Craig police Lt. John Forgay wrote a letter to Roesink expressing concern that the case was too weak to go to trial. He warned Roesink that he was having difficulty believing the victim's story.

The letter wasn't disclosed until March.

"There was absolutely no justification for withholding that letter," O'Hara said. "That letter opined that the complaining witness may have fabricated the whole story."

Ray Birch, an investigator for the District Attorney's Office, spoke to witnesses and discovered information that would have helped the defendant's case, Uhlmann said.

The interviews took place in December 2003 and January of this year. Uhlmann said she didn't see copies of the notes until May 6, when the trial date was only weeks away. It left the defense no time to investigate the witness statements that could help exonerate the defendant, Uhlmann said.

"I'm greatly concerned about everything to do with Mr. Birch," O'Hara said.

O'Hara said Birch is not a new hire, but rather someone with experience who knows better than to fail to disclose reports.

O'Hara said the reports contained exculpatory information and should have been turned over.

A videotape of a physical examination performed by a sexual assault nurse examiner on the alleged victim hasn't surfaced, Uhlmann said.

Police knew or should have known of the video's existence, O'Hara said. A Craig police detective signed for the "rape kit" the nurse had prepared during her examination of the victim. The paperwork noted that a video had been prepared, but the video was not entered as evidence.

Blood and urine samples collected from the alleged victim disappeared after being sent for testing. The prosecution had the samples tested for evidence of date rape drugs but not other drugs of abuse such as cocaine or methamphetamine.

Uhlmann questioned why the samples weren't tested for other drugs. Witnesses have testified that they spent a day partying with the accuser and the defendant and that all of them were smoking crack cocaine.

Burned pieces of tin foil indicative of drug use were collected at the defendant's house.

One month after the alleged incident, a witness told police that "everyone was using drugs."

The accuser denied using drugs. Uhlmann said that if the samples still exist, they could prove the accuser is lying.

"It now appears to me that there was not only good reason, but every reason for those samples to be tested for controlled substances," O'Hara said.

Anyone interested in the truth would want to know whether a witness had been smoking cocaine, O'Hara said.

The attorney who is prosecuting the case now is Chief Deputy District Attorney Amy Fitch. Fitch was assigned to the case in March. The case previously was assigned to Roesink and former Chief Deputy District Attorney Dave Waite.

Fitch asked O'Hara to consider the victim's rights in the case. Fitch conceded the mistakes on the part of the prosecution. But she said the accuser had a right to have her allegations heard by a jury.

O'Hara agreed. But he said the victim's rights did not supersede the defendant's rights to due process.

"I believe the victim's rights have been satisfied in this case," O'Hara said.

O'Hara credited Roesink for taking the blame for the mistakes made by her office. He thanked Fitch for conceding several arguments and admitting there was no excuse for some of the problems in the case.

The five-day jury trial in the case begins next week.

Jeremy Browning can be reached at 824-7031 or jbrowning@craigdailypress.com.

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