Appellate court remands Aspen auto-theft case to Pitkin judge |

Appellate court remands Aspen auto-theft case to Pitkin judge

ASPEN – The Colorado Court of Appeals has overturned a Pitkin County district judge’s dismissal of a car-theft case in which the alleged crime took place more than two years ago.

In a 12-page ruling delivered Thursday, the appellate court determined that Judge Gail Nichols abused her discretion in October, when she suppressed key evidence in the case. The suppression led to the judge’s dismissal of the case after the District Attorney’s Office declined to contest the defense’s motion to drop the charges.

The ruling effectively reactivates the charges against Jesus Aguilera-Pimentel, 26, Carbondale. The defendant, who was arrested in November 2010, stands accused of first- and second-degree aggravated motor-vehicle theft along with a theft by receiving offense. All counts are felonies.

The evidence suppression was the result of Nichols’ sanctioning of the District Attorney’s Office for its repeated discovery violations.

In the case of Aguilera-Pimentel, the judge said that prosecutors failed to turn over Aspen Police Officer Rick Magnuson’s videotaped interview to the Public Defender’s Office in a timely manner, which was some seven months after the fact. Prosecutors also were sluggish in delivering to the defense Magnuson’s photographs of the car and its contents and the Miranda waiver Aguilera-Pimentel signed.

Nichols noted that four other cases under the direction of Chief Deputy District Attorney Arnold Mordkin, which were unrelated to the one involving Aguilera-Pimentel, showed a “pattern of discovery violations and … these violations have occurred because the deputy district attorney has repeatedly shown that he does not accept the responsibility for insuring compliance with the discovery rules and avoiding further … violations. Rather, he just continues to assume that the system he has set up or will set up, will in all cases result in all the required discovery being produced, even through history shows that this is not the case.

“The DA simply is not checking in any way to ensure compliance.”

The three-judge appellate court panel disagreed with Nichols’ reasoning, concluding that she abused her discretion “by finding a ‘pattern’ of discovery violations based on four cases that were unrelated to the present case. We further conclude that the court erred in fashioning a sanction based on this erroneous understanding of a ‘pattern’ of prosecutorial misconduct.”

The Court of Appeals also noted that Mordkin’s “violations” were not “repeated or willful” breaches of a discovery order.

“Indeed, the ‘pattern’ did not concern the same defendant or group of individuals, the same criminal act, or even the same types of discovery violations,” the panel wrote. “Rather, the Pitkin County District Attorney’s Office was the single commonality among the four otherwise unrelated cases relied on by the District Court.”

Mordkin declined to comment about appellate court’s decision. He said that District Attorney Martin Beeson, who is based in Glenwood Springs and is seeking re-election in November, made oral arguments before the appellate judges on Aug. 28 in Denver. The Colorado State Public Defender’s Office was represented by Andrew Heher, Mordkin said.

Aguilera-Pimentel initially was questioned by Aspen police in October 2010 following the theft of a vehicle from downtown Aspen in August 2010. Aguilera-Pimentel told Magnuson that he was aware the car had been stolen when he took it from a parking lot in Snowmass, according to the appellate court’s order. Mordkin now can use that confession, once suppressed, in his renewed prosecution of Aguilera-Pimentel.

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