Prosecutors in the 9th Judicial District are appealing a judge’s ruling that dismissed two felony charges against a Glenwood Springs man accused of making a bomb threat to get into an Aspen concert.
The May 21 ruling by Judge Gail Nichols of Pitkin County District Court, part of sanctions levied against Chief Deputy District Arnold Mordkin, dropped the two most serious charges against Asa Robinson, 30.
Mordkin on Friday appealed the sanctions to the Colorado Court of Appeals.
Robinson had been charged with three felonies: two related counts of assault on a police officer and false reporting of an explosive. The assault counts are the most serious because, if convicted as a habitual offender, they would carry mandatory minimum prison sentences. Robinson, if convicted on the dismissed counts, could get 36 years in prison. If convicted of only the bomb threat charge, he would face four and a half years.
Authorities say that on Nov. 22, he called the county dispatch center and reported there was a bomb in the Belly Up during a sold-out concert. He allegedly did so because he didn’t have a ticket and was attempting to mingle in with other concert-goers when they were readmitted after being evacuated. Authorities traced the call into the communications center back to Robinson’s cell phone, and he was identified from a photo that police found in their database.
He was arrested at the concert venue and allegedly fought with the arresting officer, leading to the now-dismissed charges.
Nichols dismissed those charges as part of sanctions related to the handling of pretrial evidence, or discovery, by the prosecution’s offices in Glenwood and Aspen. An evidence custodian for the Aspen Police Department also erroneously handled discovery, Nichols found.
An interview that an Aspen police detective recorded with Robinson shortly after his arrest was belatedly given by Aspen police to Mordkin. He then gave it to Robinson’s attorney, public defender Tina Fang, in late March, months after discovery was due.
Likewise, photographs a police officer took of Robinson’s injuries that occurred when he was arrested as a result of the scuffle with the officer were not turned over in a timely fashion as required by law. Regardless, the state’s rules of criminal procedure put the onus on prosecutors, not law enforcement agencies, in handling discovery, Nichols ruled.
Nichols also sanctioned Mordkin in August over pretrial evidence, ruling that certain evidence could not be used in an aggravated motor-vehicle theft case. For that ruling, Nichols cited discovery infractions in five felony cases dating back to 2009.
District Attorney Martin Beeson appealed those sanctions to the Colorado Court of Appeals, which has yet to rule. The prosecutors are asking the appellate court to consolidate the appeals they made in the motor-vehicle theft case and in Robinson’s case.
In the former, Beeson wrote that Nichols’ examples of pretrial missteps involved only a tiny fraction of the caseload that the Aspen district attorney’s office handled correctly. The appeal of the Robinson sanctions are “substantially similar,” the filing says, and the appellate court’s ruling “in either case will in all likelihood dispose of the issues in the other.”
In other court news, Nichols praised a local man for his lack of bitterness at Aspen police over their handling of his drug-possession case.
Justin Gordon, 34, of Aspen, was sentenced to three years of supervised probation after pleading guilty in April to possessing more than 4 grams of cocaine.
He had been charged with possession with intent to distribute, a more serious charge, after Aspen police said they found 13 grams of the drug in a downtown street following Gordon’s alleged fight with a cab driver on Oct. 1, 2010. The possession count was dropped as part of a plea agreement.
Aspen attorney Jeff Wertz, who represented Gordon early in his case, spoke on his behalf at the sentencing. Gordon was represented by Fang, the public defender.
Wertz told Nichols that Aspen police never investigated the cab driver. Wertz said the cabbie punched a woman who was with Gordon in the back of the head, unprovoked, knocking her “out cold.”
“The police accepted the cab driver’s version of events and discredited anyone else,” Wertz said. “All of this over an $8 cab ride.”
Nichols agreed that the investigation was not done thoroughly, something that could have led to Gordon’s acquittal at trial.
Fang suggested that Gordon’s probationary period will be difficult, given that “nothing would please” Aspen police more than to see her client violate his three-year deferred sentence.
Because Gordon embarrassed the arresting Aspen police officer, Rick Magnuson, other officers may not want him to successfully complete his probation, Fang said. Police also may think that the cocaine was in fact Gordon’s and that he is getting a slap on the wrist, she said.
Gordon could face a two- to six-year sentence in state prison if he’s found guilty of violating probation.
When he was arrested, Gordon repeatedly questioned and disparaged Magnuson about an art project of the officer’s prior to Magnuson running for sheriff a few years ago.
“I may not appreciate his art, you may not appreciate his art,” but the officer deserves respect, Nichols said.
“I think Mr. Magnuson deserves a letter of apology,” Nichols said.
“I do too,” Gordon responded.
Nichols also disagreed with Fang about possible police retribution.
“I don’t think any officer is out to get you,” Nichols told Gordon. And she added she was impressed by his equanimity.
Besides the deferred sentence and probation, and the letter of apology, Nichols also sentenced Gordon to 24 hours of community service. She waived a $2,000 drug surcharge because of his financial status.
Gordon apologized to Nichols and the community, saying he plans “on doing what’s asked of me.”