DA’s office appeals mistrial in Aspenite’s marijuana case
An Aspen prosecutor is appealing a ruling by Pitkin County Judge Erin Fernandez-Ely that dismissed a marijuana possession case against Aspenite Trevi Burkholder.
Deputy District Attorney Katie Sullivan on Thursday filed a notice of her intent to appeal the ruling, which was handed down this week in county court.
The judge ruled Feb. 13 that trying Burkholder would violate her constitutional guarantees against double jeopardy. Burkholder had already been essentially exposed to conviction on the charges back in December 2000, when a trial started and a jury was sworn in, Fernandez-Ely ruled.
Sullivan’s notice cites “errors in the court’s ruling to dismiss the case for double jeopardy. The law is clear that if a defendant does not object to a mistrial, an analysis of manifest necessity is inappropriate. Further, there was no evidence of bad faith on the part of the court or the prosecution.”
Burkholder was charged with possession of marijuana last year after a backpack was found at The Aspen Store that contained more than two ounces of marijuana and between $1,700 and $1,800 in cash. The backpack also contained a catalog that allegedly had Burkholder’s name on the mailing label, leading to the charges against her.
During the December trial, a mistrial was called after Sullivan declared in front of the jury that Burkholder had told police the money was hers. But her lawyer responded that she had never said that to police or anyone else.
Among the issues raised in a Feb. 13 hearing on a defense motion to dismiss the case was Sullivan’s contention that Burkholder’s attorney did not object to the declaration of a mistrial, a legal technicality that she said invalidated his request for dismissal of the charges.
Sullivan’s notice also referred to the judge’s ruling that Sullivan had “acted in good faith” during the trial, and that the misstatement about Burkholder’s admission was simply a mistake.
The appeal, once all the documentation is filed by both sides, will be handed over to one of three Ninth Judicial District Court judges for a decision.
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