EAGLE — Eagle County Sheriff James van Beek made his first court appearance Friday on petty-offense charges that he used funds from a reserve account without proper authorization.
No charges were read and no pleas were entered regarding the second-degree official misconduct indictment at the center of the case. That’s largely because not enough information has been made available to the defense, maintained David Kaplan, van Beek’s Denver-based attorney.
Although the charge was brought by the 5th Judicial District, via a grand jury, in July, it’s the Office of the District Attorney, 9th Judicial District — which usually counts Garfield, Pitkin and Rio Blanco counties among its jurisdiction — that is handling it as an appointed special prosecutor.
Unlike in a preliminary hearing to establish probable cause for a charge — which is open to the public and involves both the prosecution and defense with the judge — a grand jury is a closed-door proceeding, and the only lawyer in the room is the prosecutor, who provides jury instructions, explains the law and how much probable cause is required for an indictment. Prosecutors also help gather witness testimony and procure any relevant physical evidence to present to the grand jury.
The transcripts from the grand jury in van Beek’s case have not yet been fully provided to the defense, which is why the next court appearance was set for Dec. 13. That way, both sides have an opportunity to review the grand jury transcriptions and communicate about how to move forward, Judge Edward Cassius said.
Kaplan said several times in court that he hopes the path forward leads to resolution before that court date.
“We are really desirous of both reviewing the grand jury so we can talk more educatedly about this petty offense having been presented,” he told Cassius. “Perhaps, we can seek a resolution to the case even prior of the next court setting.”
That is, of course, if there is even a case to resolve in the future. Kaplan filed a motion to dismiss the case outright Friday morning, though that filing had not made its way to the clerk’s office by the end of the hearing.
“I have just provided to Mr. [Deputy District Attorney Steve] Mallory defendant’s motion to dismiss,” he said. “In the material that I have reviewed to date, it has already become apparent to me that there is a conflict, in my opinion, with how this prosecution began.”
That beginning, he continued, was when Eagle County District Attorney Bruce Brown presented evidence to the grand jury, then on Aug. 9 filed a motion requesting a special prosecutor.
“Prior case law countenances the appointment of a special prosecutor at the earliest possible time,” Brown wrote in that motion. He continued by citing said case law: “‘The proper course of conduct, when the prosecutor knows in advance, as he did in this case, that he is going to appear as a witness, is to secure a replacement and withdraw as prosecutor.’”
Kaplan agreed with that assertion in court — but he also asserted that Brown, knowing in advance that he would likely appear as a witness, should have requested the special prosecutor from the outset of the investigation.
“I think based on the information I have, it was inappropriate for Mr. Brown to present testimony in front of the grand jury, and I think enough so that it results in an inappropriate true bill being presented,” Kaplan said. “He was a conflicted individual because it was clear even from his own statements that he was a witness, and knew he was a witness at the time when he presented that information. I think the motion to dismiss will undoubtedly be supplemented after we review the remaining testimony.”
Cassius seemed less than enthused to hear about the new motion in the courtroom.
“The court will also note that at this time, the defense appears to have filed some motions — or at least one — that I have not yet seen and certainly don’t have all the transcripts that are part of this case,” he said. “I would ask that in the future, you file in writing and address in writing. To stand at the podium to talk about a motion that the other party hasn’t had a chance to address is unnecessary.”
To that point, Mallory declined to comment, citing that the prosecution hadn’t yet reviewed the motion. Additionally, Assistant District Attorney Ben Sollars, who is the lead prosecutor now handling the case from the 9th Judicial District, was not present in the courtroom Friday.
Brown, too, had little to say on the matter.
“These special prosecutions present an issue where I’m not the prosecutor anymore,” he said Friday evening. “I would just say that … the custom is disfavored for me to make any comment at this time; it would be like me stepping on the 9th Judicial District Attorney’s toes.”
Van Beek’s office released a media statement in August following the indictment. In it, he maintains his innocence regarding the allegation that he misused state-confiscated monies from a reserve fund by not acquiring proper approvals.
“The allegations cited include 14 previously approved expenditures from the reserve fund, made in 2019,” the statement reads. “The charge comes from a misinterpretation by the district attorney about the review process of confiscated monies, and specifically when a committee needs to be convened for additional approval.”
The indictment claims that van Beek failed to seek the approval of a committee that, according to the allegations, is required to approve any such spending of confiscated funds.
According to Eagle County Attorney Bryan Treu in an August interview with the Aspen Daily News, none of the funds spent were state-confiscated, or forfeitures, and so are not subject to the state statute cited in the indictment.
A few of the reasons advocates point to in supporting grand juries is that witnesses may speak freely without fear of retaliation and that, should a grand jury decide not to indict, a would-be defendant’s reputation is preserved.