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A rush to judgment

Thomas Simmons is one lucky young man.

With a virtual pharmacy of illicit drugs once at his disposal – cocaine, Ecstasy, mushrooms and LSD – the Aspen man faced some serious time, up to decades, behind bars.

But Monday, the 23-year-old pleaded guilty to possession of more than 4 grams of cocaine as part of a plea deal with prosecutors calling for no prison time.



We understand why the District Attorney’s Office was agreeable to this arrangement, which still awaits the blessing of Pitkin County District Judge Gail Nichols at a hearing set for April 15. Prosecutor Andrea Bryan’s case, which she inherited from outgoing Chief Deputy District Attorney Arnold Mordkin, was rife was issues.

Chief among them was a gaffe by Aspen Police Officer Jeff Fain, whose miscue came when he misidentified a person as Simmons in a Belly Up nightclub surveillance video as part of an evidence-tampering probe. Armed with the identification, Fain obtained a warrant to arrest him, which happened Feb. 4, 2012, at Belly Up.




Police found enough drugs on Simmons at the time to get a search warrant to inspect his apartment and car. There, they hit the mother lode, which, combined with what they found on Simmons at Belly Up, equated to a formidable haul – 134.7 grams of MDMA; 21 hits of LSD; more than 27 grams of psilocybin mushrooms; 4.4 grams of hash; 46.5 grams of cocaine; a ledger identifying Simmons’ customers and how much they owed him; nearly $10,000 in cash, of which $7,900 was found in his sock drawer; and pills, scales and cylinders, among other items.

Fain’s misidentification significantly weakened the case because, as Simmons’ attorney Garth McCarty argued, all of the evidence that police subsequently collected constituted fruit from the poison tree. Bryan realized the obstacles presented by the misidentification and opted for a plea deal for Simmons.

The Aspen Police Department does fine work, but the methods used to make this arrest showed that room for improvement remains. Yes, mistakes happen, but Fain could have taken more time to correctly identify the person in the Belly Up video. Even the Belly Up worker who showed Fain the video told the officer she was not sure it was Simmons.

But that didn’t stop Fain, who also was aware that his department had been building a case against Simmons starting back in November 2011, when it received a letter from an anonymous father who accused Simmons of selling illegal narcotics to his teenage daughter.

We don’t know if Fain’s misidentification was a good-faith mistake or intentional, but it’s clear he made a rush to judgment, which compromised the entire investigation that led to what was said to be one of the Aspen Police Department’s biggest drug busts.

If Nichols approves this deal, Simmons will have four years of probation to think about how lucky he was. And the Police Department will remember him as the one who got away.


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