Judge: DA discovery mistakes 'epidemic'

It was in the thick of a pre-trial district court hearing that defense attorney Erick Nordstrom realized he hadn't received a report that prosecutors were using to build a case against his client -- a report, he said, that was critical.

Because of the oversight, the judge granted Nordstrom's request to suppress some key evidence in the case as well as statements from a Craig police officer who had testified on the stand only minutes before.

"The judge could see that the defense was impaired," Nordstrom said. "Prosecutors have the ammunition and they're supposed to share it. I thought the (judge's) remedy was appropriate."

But the early December hearing wasn't the first time the 14th Judicial District Attorney's Office and local law enforcement officers have failed to transfer information to defense teams, according to District Judge Paul McLimans' verbal reprimand in court.

"It's an epidemic," he said to Chief Deputy District Attorney Amy Fitch who was prosecuting the case. "The court has far too many times been sanctioned for late or nondisclosure on criminal cases. For whatever reason, it seems to be an ongoing problem."

According to rule 16 of the Colorado Rules of Criminal Procedure, the court can dismiss, continue or prohibit either side from using evidence or "discovery" if all the information in a case hasn't been shared.

During the hearing, Nordstrom pressed the judge to dismiss the case but was denied. Dismissal of the case for nondisclosure of discovery is "the most serious sanction abuse of the court," McLimans said.

But this case, which started in 2003, is an example of barriers that come with a number of different law enforcement agencies sharing criminal cases. In this example, officers from the Grand, Routt and Moffat Narcotics Enforcement Team compiled a report that wasn't passed onto the District Attorney's Office. Officials are now filing reports from the Moffat County Sheriff's Office and the Craig Police Department under the same numbers to reduce confusion, Fitch said.

"All of these police agencies from time to time work together," she said. "It can be positive for the community, but not so good for discovery."

But Gus Guarino, executive director of the Colorado Criminal Defense Bar said that district attorneys usually should have their cases ready at the time charges are filed. The lawyer of 15 years said "there's nothing more frustrating than the day before a trial to have a new report. ... There are rules that they have to turn everything over," he said. "If (prosecutors) are springing new stuff on us for the first time, it makes you wonder what else they're hiding."

Guarino said prosecutors on the Front Range rarely have been cited for discovery violations in cases he's handled.

In another example, Judge McLimans dismissed two felony charges against a Craig man. In that case, a Craig police officer testified that he had taped a witness implicating the defendant, but the officer later admitted there was no tape because it couldn't be found and he said prosecutors never asked him for it.

"It seems that there is little in the way of any established and reliable means of forwarding such materials to the prosecuting attorney's office," Judge McLimans wrote in a report. "The court also notes that this is certainly not the only case in which such issues have arisen. In fact it is an area of frequent concern. The records reflects that the efforts were somewhere in the less-than-exemplary area that exists between a half-hearted effort and a nonexistent effort."

Fitch said that she currently doesn't have enough time to cross-reference all the materials in each case file.

That may change if the department fills another D.A. position as expected.

"It would be great if I could look over every file," she said. Fitch said she's noted similar discovery problems in three other D.A. offices in which she's worked.

"We're all humans and we make errors from time to time," she said.

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