‘Enemies list’ raises stakes in special prosecutor request
November 14, 2005
A judge delayed a decision Monday on a request for a special prosecutor, saying testimony by two ex-employees of the district attorney’s office about a “so-called enemies list” of defense attorneys “does raise the stakes” in the case.Ex-prosecutors Katherine Steers and Tony Hershey accused the office of singling out attorneys for prejudicial treatment if they had spoken out against District Attorney Colleen Truden’s office or had worked for her predecessor, Mac Myers.Testifying at a hearing on the special prosecutor request in Glenwood Springs, Steers said Assistant District Attorney Vince Felletter told her that in making decisions in plea bargains, the office wanted to reward those friendly to the office and punish those considered enemies.Steers said she attended a prosecutors meeting led by Truden, Felletter and others in which the subject came up of which attorneys were handling specific cases, “so that they could get them.”Among attorneys considered enemies of the district attorney’s office were Ted Hess, Lawson Wills “and members of the old regime,” Steers said, referring to Myers’ employees.Truden defeated Wills, a former Myers employee, in last year’s Republican primary race for district attorney. Truden’s office brought a disorderly conduct charge against Hess earlier this year after he had a verbal encounter with a deputy district attorney. He accused the district attorney’s office of bullying him by filing the charge.On further questioning from attorney Jeff Cheney Monday, Steers said Cheney, too, was on the district attorney’s enemies list – “that he was a member of the old regime, that he left the office when we needed him most.”Cheney, who resigned from the district attorney’s office earlier this year, is requesting that a special prosecutor be appointed to a case in which he is representing Ken Newton on charges of shooting a dog outside New Castle. He claims that bias against him by Truden’s office jeopardizes Newton’s ability to receive fair treatment by prosecutors.Steers said she never heard prosecutors say the Newton case should be handled differently because of Cheney’s role in it.Steers, who left the district attorney’s office in August, has since filed an ethics complaint with the state over her concerns with Truden’s office.Hershey, who has sued the district attorney’s office for allegedly forcing him from his job earlier this year, was subpoenaed by the district attorney’s office to testify Monday. He said he never saw Steers instructed to do anything unethical, or prosecutors making any plea bargain decisions based on the defense attorneys in the cases. But he said he was told he couldn’t talk to certain defense attorneys in person, including Wills and Jim Leuthauser.”That certainly hindered plea negotiations and made my job hard to do,” he said.Judge Dan Petre said the ramifications of Monday’s testimony are that other attorneys on an alleged enemies list could be in situations similar to Cheney’s. If true, “it does raise the stakes,” he said, and could open the door to other requests for special prosecutors. “Because of the stakes, the court needs to take this into careful consideration,” he said.He said he will issue a written opinion in the matter by Dec. 22, the next court date in the Newton case.Theoretically, the request could be moot before then. A recall election on Truden is scheduled for Dec. 13. However, Martin Beeson, who is seeking to replace Truden, said he thinks Petre probably will make a decision before then.”I don’t think for a minute he’s thinking about ducking his responsibility by waiting for the recall election,” said Beeson, who attended Monday’s hearing.He said that even if Truden is recalled, she may not have to leave office until days or weeks later, depending on whether the election results are certified, so the special prosecution request wouldn’t immediately become moot.Petre began Monday’s hearing by saying that he understands the special prosecution request to be “an emotion-laden matter,” involving people who worked together in the district attorney’s office. But he warned Cheney and prosecutors against “personal attacks” and “stump speeches.” Cheney has been involved in the recall campaign.Even before testimony began, several other matters of legal dispute had to be resolved: Chief Deputy District Attorney Scott Turner dropped a request to subpoena e-mails of Steers, saying he didn’t want to delay the case further. Petre rejected a motion by Steers’ attorney, Richard Dally, to sanction the prosecution for the e-mail subpoena by forcing it to reimburse fees and costs associated with the subpoena, which Dally argues was overly broad. Petre ruled that Dally had failed to make sure Turner received a copy of the motion. Petre rejected a motion by Cheney to keep Hershey from testifying. Cheney said he never received notice that Hershey had been subpoenaed, but Petre said that wasn’t legally necessary. Petre rejected a motion by Turner to keep Steers from testifying, disagreeing with Turner’s contention that in order to testify, she was required to have signed an affidavit in support of the special prosecution request.During the hearing, Petre also repeatedly dealt with the unusual circumstances of Turner and Felletter questioning witnesses about meetings and conversations of which they had been a part.”I think Mr. Felletter really, by his questions, in essence is testifying,” Cheney protested at one point while Hershey was on the stand.A little later, Petre advised Felletter, “I’m not going to allow you to essentially testify without being subject to cross-examination.”Cheney said his only interest is representing Newton and protecting the public interest, and that a special prosecutor should be appointed to avoid even the appearance of impropriety.”I’m not here to grandstand about this district attorney’s office or its performance so far,” he said.But Turner countered that Cheney “has taken a relatively simple case and turned it into a circus.” He said Cheney hasn’t proven bias against attorneys by Truden’s office.”You only have these bald-faced accusations that this was a policy,” he said.He said Steers cited only one case of favoritism in a plea bargain, and she was asked only after the fact who the defense attorney was.Steers had testified that in a case involving a “friendly” defense attorney, she agreed to a deferred sentence for a repeat drunken-driving offender. Steers said normally prosecutors won’t do that, but added that the case had issues that made it difficult to prosecute.But she said while she formulated the deal on her own, she would have gone to trial if Felletter hadn’t approved the plea bargain.Turner also said that while the law allows special prosecutors when there are concerns about receiving a fair trial, plea bargains aren’t covered by the law, and aren’t a constitutional right, he said.Recall organizer Sherry Caloia said after Monday’s hearing that the public still should be able to expect impartiality from the DA regarding the handling of plea bargains.