Inside the district attorney’s defense

A cornerstone of District Attorney Colleen Truden’s political defense is the fostering of what she says is a better relationship with law enforcement.So how do the valley’s police officials feel about her? And do they think their relationship with the district attorney’s office has improved?Two said yes, one said no, two others declined to comment, and Pitkin County Sheriff Bob Braudis said there hasn’t been enough crime to know the answer.Loren Ryerson, Aspen’s police chief, cited the tension surrounding the Dec. 13 recall election in declining to talk about his department’s relationship with the prosecutor.”The circumstances are such that I’m going to decline to answer,” he said. “I may have to work with her, or not, and I don’t want to prejudice that relationship.”Ryerson did agree to discuss district attorneys in general terms. The Aspen Police Department has usually maintained good ties with prosecutors in obtaining search warrants, for instance, or working on misdemeanors, he said.Police discuss the merits of a case with prosecutors after the suspect has been arrested, and “hopefully they take all the information that’s provided to them,” Ryerson said. “We try to get them to discuss cases and dispositions with us prior to them making [the decisions], so we can help them make an informed decision.”There has been only one trial so far this year in Pitkin County. Seventeen-year-old Cinthia Romero, tried as an adult, was found guilty of attempted murder and assault with a deadly weapon for her part in the beating of another girl.Aspen’s deputy district attorney, Andrew Heyl, prosecuted the case. But other than that, “We haven’t had an awful lot of experience with Andy Heyl,” Braudis said.So Truden’s claims of a better relationship with law enforcement “doesn’t mean anything to me. I had a good relationship with Mac Myers,” he said of Truden’s predecessor. But then, the sheriff’s office has maintained amicable ties with district attorneys for the past two decades, Braudis said.”Prosecutorial discretion, in my experience, has not been wielded as much as I would like to see it,” he said. “But that [changes] from one DA to the next DA to the next DA. They’re elected in a three-county district that’s not as left-leaning as Pitkin County is.”Rocky relations in BasaltFarther downvalley, Basalt Police Chief Keith Ikeda said his department’s relationship with prosecutors has deteriorated since Truden took over.”We’re having a harder time filing cases with the Pitkin County DA’s office. We don’t have a good line of communications with that office that we’ve had in the past,” he said.Ikeda mentioned two juvenile cases that Basalt investigators tried to file as felonies. Prosecutors decided to try the cases as misdemeanors in municipal court.There are, of course, times when district attorneys and police differ on how a case should be handled. Ikeda noted the different standards between police and prosecutors.”We’re held to probable cause just to make an arrest. Their standard is ‘beyond a reasonable doubt’ if it goes to trial. We understand those concerns,” he said.But “generally we do agree. We usually work with them to alleviate those concerns, so that they would move forward with the filing and prosecution of those cases,” Ikeda said.”However, with the new staff, because they don’t have a lot of experience in criminal prosecutions, I think there is hesitancy in filing these cases; whereas before, we had an experienced staff that we would be able to work with and get those cases filed.”As for poor communication between Truden’s office and his department, some of that is explainable by the fact that she has been in office only about 11 months, he said.”A lot of it is [because] we haven’t had enough time to establish a working relationship with them,” Ikeda said. “I write it off to that, but I do have concerns that we do not have a good working relationship with our DA’s office. It’s been throughout this year.”Another perspectiveIn the next county over, things couldn’t be more different. The top police officials in Carbondale and Garfield County say Truden has established better lines of communication than Myers. (Glenwood Springs Police chief Terry Wilson said he is “strictly a nonpolitical animal” and declined to comment further.)Carbondale Police Chief Gene Schilling cited improved cooperation and a better attitude in Truden’s office. Previously, “We [would] submit cases, and it seemed like instead of reviewing the cases to see if they were prosecutable, they would review the cases to find out which ones they could get rid of so they could lower their caseload,” he said.Asked if Schilling was saying previous prosecutors were simply neglecting their sworn duties in exchange for less work, he said, “Well, who knows? Who can tell? I’m just telling you what it felt like on our end.”Schilling and Garfield County Sheriff Lou Vallario both agreed that arrests and prosecutions should be based on the merits of the case, not relationships between law enforcement agencies.”I absolutely agree with that,” said Vallario, who, like Schilling, supported Truden during last August’s primary election. “Unfortunately when relationships go south, there’s not that interaction.””[District attorneys] also need to be able to work with you,” Schilling added. “The district attorney’s office needs to review those cases and say, ‘This is what you need to do different or you don’t have enough to do it.'”We didn’t have that much of a give-take relationship with the previous district attorneys.”Communication between the Garfield County Sheriff’s Office and the district attorney’s office are such that “more [cases] are being filed in court with more of the charges than previously,” Vallario said. “We had a lot of cases that were being dismissed, or we might charge somebody with four charges and the DA may turn around and charge one.”So does Truden have a better relationship with law enforcement? Like so many things in this recall campaign, it depends on who you ask. Perhaps the most important thing is that citizens are entitled to cooperative and competent officials deciding who is arrested, who is prosecuted and who goes free, law enforcement officials say.”I think the citizens, for whom both law enforcement and prosecutors work for, expect a good relationship. I’ve had problems over the years with each and every prosecutor, but they were resolvable through dialogue,” Braudis said. “I would assume any professional prosecutor would relish a dialogue with law enforcement people with whom she works.” Sides dispute conviction numbersStatistics: The only science that enables different experts using the same figures to draw different conclusions. – Evan EsarDistrict Attorney Colleen Truden on Wednesday said her felony conviction rate through October is 40 percent higher than her predecessor’s during the same period in 2004.A former deputy prosecutor under Truden said the embattled district attorney’s conviction rate is only 24 percent, compared to the former district attorney’s 40 percent rate in 2004.Comparing conviction rates between years is difficult. A variety of factors, such as a judicial district’s population, whether a suspect received a deferred prosecution, and a district attorney’s aggressiveness in pursuing cases, can play a part in the number of convictions.”It’s extremely difficult to place any sort of substantial credibility in this [process of] comparing one year with [another] year,” said a person who has many years of experience with the judicial system. The source wished to remain anonymous.In Colorado, there is a case outcome known as a deferred prosecution. Prosecution is postponed for two years, and if the suspect performs satisfactorily during that probationary period, his or her record is wiped clean. It is a wild card in determining conviction rates.”The person is informed that if he is subsequently asked [after two years] if he has been convicted of a felony, he can legitimately answer no,” the source said.So does that count as a conviction? Former deputy district attorney Gail Nichols said such cases count as convictions during the two years of probation. After that time, if the person stays out of trouble and gets a clean record, it is not a conviction.Nichols spent part of the past several days looking at numerous Pitkin County criminal cases from 2004 and 2005 in reaching what she says is a conviction rate of 24 percent for Truden. Nichols, former head of the criminal division of the U.S. Attorney’s Office in New Jersey, readily agreed that comparing one district attorney’s conviction rate to another’s is taxing.”This is very, very tricky,” she said.Her comparison tracked 92 felony cases filed from when Truden took office in January through Nov. 11, 2005, and 92 cases filed in all of 2004. Nichols said the discrepancy between the dates shouldn’t affect the overall conviction rate.”It’s true that there are additional felony filings [in 2005],” she said. “But that means that the convictions should be up [this year], and you can see that convictions aren’t even close to what we did last year. The rate should be about the same, and it’s nowhere near.”To arrive at her conviction rates, Nichols said she “took all felony filings and divided it into the felony convictions, plus the felony deferred [cases].”According to Nichols’ comparison, of the 92 felony cases in 2005, 12 people pleaded guilty to or were convicted of felonies, 16 pleaded guilty to misdemeanors or petty offenses, and 11 pleaded guilty under deferred sentences.In the 92 cases of 2004, before Truden, 28 people pleaded guilty to or were convicted of felonies, 10 pleaded guilty to misdemeanors or petty offenses, and 10 pleaded guilty under deferred sentences.”That’s a huge difference,” Nichols said.The rest of the cases from both years is a mishmash of outstanding warrants, fugitives from other states and dismissals. The final conviction rates do not include cases from 2003 that were handled in 2004, nor 2004 cases handled in 2005.”If you asked me, I’d say, ‘Look, I can’t tell what [Truden] did is wrong.’ It all depends on the facts of the cases,” she said. “The thing that offends me is she’s saying she’s so much tougher on crime. You talk to any defense attorney, and they’re getting gifts. Everybody’s saying, ‘We don’t want her to change because she’s giving us great deals.'”The findings, she said, are a rough estimate that nevertheless “is not that far off” from reality.Truden dismissed Nichols’ analysis, saying she didn’t know where her former employee obtained her statistics.”She provides no information, so I can’t comment on what she says,” Truden said. “What I can tell you is the information I’ve got from the Colorado District Attorneys’ Council is that our conviction rate for felonies is up 40 percent through the end of October [compared with] 2004.”When asked for the 2004 conviction figure that she has exceeded by 40 percent, she said she did not have that information.And then there is the population question. Whether an influx of oil and gas workers in western Garfield County is leading to her claim of increases in felony filings and convictions is an issue that keeps coming up, she said.”It’s as I told the commissioners during our workshop up there in Pitkin County [in early November]: I don’t have any statistics or information that correlates between the increase [of oil and gas workers],” Truden said. “Anecdotally, there seems to be an increase in population, and therefore it would make sense to think that there’s some increase [in crime]. But predominantly that’s not what I’m sensing.”We’re just filing more, we’re working more with [police] and filing and addressing the cases that would otherwise have gone unaddressed.”At any rate, the source familiar with the courts said, there is a larger ideal for prosecutors: “The district attorney, it is often said, doesn’t have any duty to convict – the district attorney has a duty to see that justice is done.”Chad Abraham’s e-mail address is chad@aspentimes.com