Double jeopardy’ cited in drug case | AspenTimes.com
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Double jeopardy’ cited in drug case

John Colson

A judge dismissed drug charges against native Aspenite Trevi Burkholder Tuesday, ruling that guarantees against “double jeopardy” would be violated if she went to trial later this week.

Pitkin County Judge Erin Fernandez-Ely, speaking from the bench, cited a number of “errors” by the court. She said those errors contributed to confusion that led to a mistrial two months ago in the case against Burkholder.

A second trial on the charges, which was scheduled for this Friday, has been canceled.

Assistant District Attorney Katie Sullivan declined to comment on the ruling, or on whether she would be filing an appeal of the judge’s ruling.

Both Burkholder and her attorney, Chip McCrory, also declined to comment on the case, citing the possibility of an appeal. McCrory, however, quoted a line from William Shakespeare’s play, “Othello”: “Thereby hangs a tale.”

The ruling came at nearly 5 p.m. Tuesday, after McCrory and Sullivan had spent roughly an hour wrangling over the legalities of a mistrial granted by Fernandez-Ely in December.

The mistrial was prompted by Sullivan’s statement early in the trial, after a jury had been sworn in, that Burkholder had at one point admitted to ownership of a bundle of money found in a backpack last February.

The backpack also contained more than two ounces of marijuana, and a catalog with Burkholder’s name on the address label, police alleged, leading to a charge of possession of an illegal drug.

Burkholder has maintained her innocence, saying the backpack was stolen from her car. In the trial, McCrory argued that Burkholder never admitted ownership of the money to police. He said Sullivan’s statement would improperly prejudice the jury against his client.

In the hearing on Tuesday, McCrory argued that legal precedent has established that a defendant is technically exposed to the “jeopardy” of a conviction once a jury has been seated. And since the jury had been sworn in in the case against Burkholder, he said, trying her again would be a clear example of “double jeopardy,” which is prohibited by the U.S. and Colorado constitutions.

McCrory also argued that Sullivan, after realizing her mistake, tried to use the mistrial as an opportunity to repair holes in her case, which had been clearly targeted by McCrory in the early moments of the trial.

He accused Sullivan of trying to “save her case for another day,” correcting deficiencies dealing with the evidence and other issues, and thereby having a better chance at winning in a second trial.

Sullivan flatly denied his assertions, and pointed out that the judge had ruled at the end of the trial that Sullivan had “acted in good faith” and made what even McCrory conceded was “an honest mistake” in attributing the admission to Burkholder.

But Fernandez-Ely sided with Burkholder, noting in her ruling that “the case was saved for another day … and that’s really not, to me, a fair way” to conduct a trial.

“You don’t get a couple of whacks” at a defendant, she told Sullivan, musing that “maybe there was a lack of preparation” in the prosecution’s case.

She noted, however, that there was no need for a finding as to whether Sullivan “intended in her heart, in a black or mean way,” to “trigger a mistrial” and take unfair advantage of the situation, because the judge herself accepted some responsibility for confusion in the case.

“I was swept up by the moment,” the judge remarked, adding that she erred in so easily granting a mistrial after a heated exchange between Sullivan and McCrory about how to deal with the situation. She also said she had been too slow to send the jury out of the courtroom once Sullivan had made her misstatement.

Courts in general should be very hesitant to declare mistrials, she said, citing legal precedents that “society will be better served by proceeding with the trial.”


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