Judge blames former Aspen bartender for his sex assault conviction, denies new trial
Nardi sought new trial after 2014 conviction alleging ineffective assistance of counsel
The person who caused the most harm to Peter Nardi during his trial seven years ago was not one of his defense lawyers, but Nardi himself, a District Court judge ruled Friday.
With the exception of an unethical fee agreement that ended up not having an affect on Nardi’s legal representation, the two defense lawyers in the case actually did a good job, said Pitkin County District Judge Chris Seldin, who denied Nardi’s request for a new trial because of ineffective assistance of counsel.
“In the end, clearly it was Mr. Nardi’s own testimony that was most detrimental to him during the trial,” Seldin said. “(The prosecution) effectively used all the evidence to disassemble his story and it clearly convinced the jury.”
A Pitkin County jury convicted Nardi in April 2014 of felony sexual assault, felony attempted sexual assault, two counts of misdemeanor assault, one count of misdemeanor false imprisonment and a final felony violation of bail bond conditions. He is currently serving a sentence of nine years to life in Colorado prison.
Seldin’s ruling capped three-and-a-half days of testimony that occurred Jan. 12-14 and Friday during which Denver-based attorney Nancy Holton attempted to convince the judge that Nardi’s defense lawyers, John Van Ness of Carbondale and Colleen Scissors of Basalt, erred so badly during his trial that he deserved a new one.
Holton alleged the lawyers should have allowed Nardi’s friends to testify about his character during the trial. Seldin, however, said the testimony he heard from those friends earlier this month was “biased” and irrelevant and could have allowed prosecutors to bring up Nardi’s prior felony conviction and domestic violence history.
Holton also said Van Ness — who has since died — and Scissors should have retained an investigator and an expert witness to testify in Nardi’s defense. Seldin ruled that the lack of an investigator was not prejudicial to Nardi. The judge also said the lawyers did try to hire an expert and the trial judge in the case properly applied a directive from the Colorado Supreme Court chief justice about how to pay for the expert.
Holton criticized the lawyers for not pursuing a plea deal in the case. But, again, Seldin cited Nardi’s own behavior — he sought out local newspaper reporters and police and steadfastly maintained his innocence — undermined any such efforts, he said.
And despite implications that Van Ness might have had issues with alcohol during the trial, Seldin praised Van Ness’s motions filed in the case, saying they were of higher quality than he’s seen in other criminal cases and demonstrated a “depth of detail I don’t usually see in criminal motion filings.”
“The hapless Mr. Van Ness can’t even defend himself because he’s deceased,” Seldin said.
The only area of the defense that was unethical was a fee agreement between Van Ness — who took the case for free — and Nardi that said the lawyer would get most of any civil lawsuit settlement in the case once Nardi was acquitted, Seldin said.
“I’m going to assume the fee agreement here did create a conflict,” the judge said.
Still, it did not produce an adverse effect on Nardi’s representation, so it was not grounds for a new trial based on ineffective assistance of counsel, he said.
Nardi caused his conviction, Seldin said. His testimony was “devastating” “incredibly prejudicial” and likely “sank him,” the judge said.
Scissors — who was undoubtedly lead counsel in the case — thought Nardi was going to make an excellent, charming witness, but when he got on the stand it didn’t take long before she realized what was happening, he said. In an “incredibly bold” move, Scissors attempted to stop the cross-examination of Nardi and get him off the witness stand, but former District Judge Gail Nichols rightfully allowed the cross to continue, Seldin said.
“She saw her client getting killed and she did everything she could to stop it,” he said. “She was about as bold as a defense attorney could be.”
In fact, Nardi’s testimony was so bad for his case, Seldin wondered allowed Friday whether Van Ness and Scissors decided not to call an expert witness during trial in order to create the basis for an ineffective assistance of counsel motion for a new trial later.
Seldin said he expects Nardi’s case to be appealed to the Colorado Court of Appeals.
“I’m sure this is step one with this motion,” he said.
All participants in Friday’s hearing, including Nardi, attended virtually. The case was supposed to finish Jan. 18, though Nardi was unable to attend because the Colorado Department of Corrections said he tested positive for COVID-19.
On Friday, Nardi said he never positive for the virus, though he’d been kept in quarantine.
Nardi has served eight years in prison and cannot be released until he admits to the sexual assault and completes an intense sex-offender rehabilitation program. His former public defender said Nardi, who has maintained his innocence, will have to stay in prison for life or lie about his true feelings, though completing the treatment program requires passing a lie detector test.
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