The attorney for an Aspen man who was arrested after allegedly calling two police officers “douche bags” more than a year ago is at an impasse with the district attorney’s office.
Lauren Maytin wants a judge to enforce a settlement agreement she said had been reached with Deputy District Attorney Richard Nedlin, which she said was thrown for a loop when Nedlin amended her client’s charge from disorderly conduct to obstructing a peace officer. Maytin’s motion, filed this week, also requests that a special prosecutor take over the case.
Maytin’s client, Daniel Fordham, 40, was arrested around 2 a.m. on Jan. 23, 2010, at Rubey Park. A prior motion to dismiss the case by Maytin says Fordham was trying to help Aspen police officer Adam Loudon and a Vail officer, who were investigating a coat theft, when he told the cops, “Hey douche bags, the guys you want are going that way.”
“After hearing Mr. Fordham’s criminalized words, officer Loudon ran past Mr. Fordham in the direction of Wagner Park, as Mr. Fordham had suggested,” the motion says. Loudon later returned to Fordham and told him, “I heard what you called me,” according to the motion.
The incident began when someone had their coat stolen and Fordham and the alleged victim walked off to find who had done it. Police were alerted and were also looking for the alleged coat thief.
Loudon’s version of the incident, contained in his arrest report, differs from Fordham’s account.
While following a security guard that flagged the officers down, “I heard Fordham yell at me ‘douche bag!’” Loudon’s report says.
“As I was following [the alleged victim] I passed by Fordham and told him not to call me a ‘douchebag’ and told him for a second time to leave and go home,” Loudon’s report says [Fordham was waiting for a bus, according to court documents]. “Fordham started yelling at me as I walked away.”
Aided by other officers in the coat caper, Loudon said he walked by Fordham again and was yelled at once again, the arrest report says. Fordham was then handcuffed, summonsed for disorderly conduct and taken to jail.
Then began what has turned into a nasty legal fight between Maytin and Nedlin. A plea agreement called for Fordham to plead guilty to the disorderly conduct charge, not violate his probation from a previous case, pen a letter of apology and complete 24 hours of community service.
That plea agreement was to remain on the table unless Maytin filed a motion to dismiss, according to Maytin’s recent pleading in the case, which asks that the plea arrangement be enforced and seeks a special prosecutor.
Maytin filed the motion to dismiss on July 20, 2010, citing Fordham’s right to freedom of speech. But a judge never ruled on it because in court on Aug. 17, 2010, Nedlin amended the charges from one count of disorderly conduct to one count of obstructing a peace officer, Maytin’s motion states.
“DDA Nedlin failed to honor the plea agreement,” her motion claims.
Maytin said Thursday that Nedlin’s actions left her “dumbfounded.”
“My client spent a considerable amount of time and energy to dismiss the case based on the offer,” she said, adding Fordham waived his right to a speedy trial. “This is crazy.”
Nedlin said he has a responsibility to review the arrest report and change an officer’s original charge if it does not accurately represent what happened. Yelling at an officer multiple times does not constitute disorderly conduct, but it does reflect obstruction, he said.
“I have to charge properly,” Nedlin said. “I don’t see how I angered (Maytin). I never said I will not amend the complaint.”
Prosecutors have complete discretion to amend a case, and “that’s all I did,” Nedlin said.
He bristled at the accusation that he broke the plea deal agreement.
“Ask any defense attorney. In my three years here in Aspen, I have never reneged on a deal,” he said. He added that he would support the previous plea deal.
Maytin and Nedlin did agree on one thing: Police officers had better have thick skin. Nedlin said “you can say almost anything in front of a cop” and be protected by the First Amendment.
Said Maytin, “It’s not like he doesn’t hear this commentary in his line of work. My client’s trying to help them.”
The next hearing in the case is scheduled for March 8.