Defense argues for dismissal of Aspen rape case |

Defense argues for dismissal of Aspen rape case

ASPEN – Attorneys for an Aspen rape suspect want the case dismissed on the grounds that blood evidence is contaminated, the alleged victim lacks credibility, and the suspect was too intoxicated to realize what he was doing the morning in question, among other claims.

Over the course of a nearly seven-hour hearing Wednesday in Pitkin County District Court, Judge James Boyd heard testimony concerning a motion by public defenders Tina Fang and Stephen McCrohan, who are seeking that either the case be thrown out, or the remaining evidence destroyed.

Their motion argues that blood drawn from Emanuel Gonzalez-Loujun, 22, of Carbondale, is contaminated because the Aspen Police Department failed to properly maintain it. And because of that, Fang and McCrohan contend they can’t employ the defense that Gonzalez-Loujun was under the influence of alcohol and drugs the morning of Jan. 17, 2009, when he allegedly raped an Aspen woman three times outside of the Centennial Apartments complex.

The attorneys for Gonzalez-Loujun, whose jury trial is scheduled March 29 through April 6, say in a motion that they plan to use “multiple defenses in this case. Several of the defenses he asserts relate to the voluntary ingestion of alcohol, involuntary intoxication based on prescription medication, and intoxication due to the ingestion of cocaine.”

Some six hours after his arrest, Gonzalez-Loujun’s blood-alcohol content registered a 0.076 reading on a portable breath test, the motion says. On average, males typically burn off 0.015 every hour since their last drink.

“Based on the destruction of Mr. Gonzalez’ blood sample, he will be precluded from effectively defending his case on the grounds of intoxication voluntary or involuntary,” the motion says.

The motion also argues that because the alleged victim was not tested for either drugs or alcohol after the alleged rape, the suspect “will be unable to confront his accuser with evidence of her intoxication, despite her denials that she used cocaine that night.”

In Wednesday’s hearing, defense lawyers pried away at Pitkin County Jail Administrator Don Bird, Aspen police Detective Chris Womack, sexual assault nurse examiner Carol Began, Assistant Police Chief Linda Consuegra, and Michelle McClinton, the custodian of evidence for the Aspen Police Department.

At the heart of the testimonies was the methods of evidence collection. At one point, Womack, the lead investigator at the time of the alleged crime, testified it was an “error on my part” when he sent the suspect’s blood, on Jan. 20, 2009, to the Colorado Bureau of Investigations for a toxicology test. The CBI no longer conducts toxicology tests, and the sample should have been sent to the Colorado Department of Health lab in Denver, Womack said.

McClinton also testified she failed to keep the blood sample refrigerated, including after it was returned from the CBI, to preserve its integrity, which the defense team hinted led to its contamination. Public defenders received the blood last month, and were told Jan. 26 by Chematox Laboratory Inc. that it could not be tested because it was contaminated.

During questioning of the witnesses, the defense team also suggested that the alleged victim was intoxicated when she encountered Gonzalez-Loujun. Their most recent motion contends that the alleged victim’s “credibility and ability to remember and perceive events is at issue in this case.”

Near the end of the hearing, Fang said she plans to file a motion seeking the criminal histories of every police officer involved in the arrest of Gonzalez-Loujun.

“At least one officer endorsed by the People has a criminal history,” she said.

Fang also argued for the release of details of an investigation into the Aspen Police Department by the 9th Judicial District Attorney’s Office.

The recently conducted audit focused on the police department’s protocol for handling evidence, Fang alleged. Prosecutor Arnold Mordkin countered the investigation revealed no incompetence on the police department’s behalf when it came to the handling of evidence in the Gonzalez-Loujun case.

Even so, Judge James Boyd ordered the district attorney’s office to release any information it obtained regarding the police department’s handling of evidence in the case.

“Given the history of this case and others in this court,” Boyd said, “[the investigation] is a good response to criticism, not a bad one. If an audit was performed and it has [details] of this case, that portion of the audit needs to be disclosed.”

So far, Boyd has suppressed several pieces of evidence in the Gonzalez-Loujun case, ranging from police videos to blood samples from the suspect. In January, Boyd ruled that authorities failed to provide police vehicle video evidence of the arrest of Gonzalez-Loujun in a timely manner. Additionally, both the prosecution and police apparently stymied efforts by the public defender’s office to collect blood samples obtained from the suspect.

Since his arrest, Gonzalez-Loujun has been in the Pitkin County jail on a $250,000 bond. If convicted, he faces a lifetime in state prison.

He originally was arrested – the same morning – for allegedly assaulting a police officer and drug distribution charges, after cops encountered him walking away from the apartment complex when they were responding to a report that a rape had occurred.

In their motion, public defenders contend that because the suspect’s blood sample is ruined, they cannot “demonstrate to a jury that he had cocaine in his system, a fact tending to support a claim of possession for personal use as opposed to the People’s theory that he possessed a controlled substance with intent to sell it.”

Police say they found 13 bindles, each containing cocaine, at the time of Gonzalez-Loujun’s arrest.

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