Prosecutor may be called to testify about record-keeping
The judge presiding over a man’s felony case involving an alleged bomb threat concerning a Belly Up concert urged the attorneys for both sides on Tuesday to come to an agreement on pretrial evidence issues.
Otherwise, public defender Tina Fang, representing Asa Robinson, 30, of Glenwood Springs, may call Aspen prosecutor Arnold Mordkin to testify about record-keeping matters in a motion-to-dismiss hearing set for Monday.
Custodians of evidence in the Aspen Police Department and the Aspen office of the 9th Judicial District Attorney may also be called to the stand. Judge Gail Nichols of Pitkin County District Court said that, in order for her to rule on the motion, she needs to rely on statements that are only made under oath unless Fang and Mordkin can agree on matters involving certain evidence.
Among the issues is when a detective’s recorded interview with the defendant was turned over by Aspen police to the district attorney’s office, and when the prosecutor’s office either gave a copy of the interview to Fang or alerted her to its existence.
Robinson is charged with false reporting of an explosive, assault on a police officer and assault on a police officer while in custody. He could face at least 21 years in prison if convicted and if he’s found to be a habitual offender.
Fang on April 13 filed the motion to dismiss, alleging that Mordkin’s office failed to timely turn over a copy of the interview Aspen police Detective Ian MacAyeal conducted with Robinson shortly after his arrest Nov. 22. Prosecutors are expected to turn over evidence to defense attorneys 20 days after the filing of charges to allow them and their clients to prepare for trial. After that, when new evidence comes to a prosecutor’s attention it must be turned over to the defense as soon as is practical, according to the Colorado Rules of Criminal Procedure.
Fang’s motion says the district attorney’s office didn’t turn over a copy of the interview until March 22, which the defense attorney says is another example of miscues involving pretrial evidence, or discovery, committed by the Aspen prosecutor’s office.
Nichols last summer sanctioned Mordkin for similar missteps in five cases, ordering that he could not use key evidence in a motor-vehicle theft case. Mordkin soon after filed to have the case dismissed, saying he could not expect a successful prosecution without that evidence.
But he and District Attorney Martin Beeson have appealed Nichols’ ruling to the Colorado Court of Appeals, where it is pending, and defended the Aspen office’s handling of discovery. Nichols’ ruling cites a handful of cases in which prosecutorial discovery errors were made out of the nearly 2,700 that the Aspen office handled between 2008 and 2011, meaning the vast majority of cases were handled correctly, the appeal says. Mordkin has also said in court motions that his office and evidence custodians of the local law enforcement agencies have rectified the issues that led to the mistakes.
But for the latest alleged infraction, Nichols “should make it clear that the blame rests with [Mordkin] and his office — alone,” Fang wrote. Dismissing Robinson’s case is the only way the court can be assured that its authority to enforce procedural rules will be respected, the motion says.
In opposing the motion to dismiss, Mordkin chose a similar tack as before. He contends in an April 26 filing that his office, between 2008 and February 2012, handled more than 3,400 cases involving everything from felonies to traffic matters. Assuming the contention that errors occurred in five cases is correct, “we did it right 99.9985 percent of the time,” Mordkin’s motion says.
Nichols apparently wants that statement under oath, saying Tuesday she has no way to verify it. Mordkin indicated to Nichols that, if called to testify, he will simply reiterate what is in his motion. That would presumably allow the judge to refer to the court record before she rules.
Both Fang and Mordkin declined comment after the hearing.
Fang’s dismissal motion goes further than asking for the prosecutor to be sanctioned. The case should also be dismissed because
MacAyeal’s report on Robinson’s interview that was provided to Fang omitted “highly exculpatory statements,” or statements that are favorable to defendant, that Robinson made to the detective, the motion says.
Those statements involve what Robinson thought was happening during his arrest at the Belly Up on Nov. 22.
That night, a caller allegedly told the county communications center that there was a bomb inside the Belly Up. Police say Robinson was denied entry to what was a sold-out show and made the threat so he could try to get in when ticket-holders, who were evacuated as the venue was searched, were let back in.
The communications center’s call log allowed police to look up the cell-phone account, get Robinson’s name, obtain his photograph from an earlier case and arrest him at the concert, a police report says.
Fang’s dismissal motion alleges that photographs of injuries Robinson suffered in scuffling with a police officer during the arrest also were not provided in a timely fashion. Robinson allegedly told MacAyeal he thought he was taken into custody for resisting arrest, not assaulting a police officer, because “the cop had his f---ing boot on the back of my head,” Fang’s motion says.
The case should further be dismissed because the photographs were not provided in a timely fashion; had the photos been handed over on time, an investigator for the defense could have documented them. Now that opportunity is lost forever, Fang wrote.
Robinson’s trial is set for Aug. 21.