Not ready to rule, judge leans in Aspen officer’s favor in stolen shades case |

Not ready to rule, judge leans in Aspen officer’s favor in stolen shades case

ASPEN – A judge said Tuesday that she did not believe an Aspen police officer’s handling of a misdemeanor theft case rose to the level of outrageous governmental conduct, but she was not ready to make her ruling official.

Pitkin County Judge Erin Fernandez-Ely listened to nearly four hours of testimony and arguments Tuesday in a motion-to-dismiss hearing, including that of arresting officer Jeff Fain and the defendant, Malachi Jerimiah Mulcahy, 28, of Aspen.

During testimony, Mulcahy said he feared that Fain had been out to get him as far back as 2008; the defendant even once referred to Fain as a “snake.” For his part, Fain said he was simply doing his job in an effort to collect information on the lead suspect in a sunglasses heist.

Whatever the case, the judge appeared to be leaning in Fain’s favor.

“Was Officer Fain outrageous? At first blush, I don’t think so,” Fernandez-Ely said, noting she would take the matter under advisement and rule at a later date.

Mulcahy’s defense attorney, Lawson Wills, of Snowmass Village, said Fain’s tactics during and after the arrest ran counter to the community policing approach to which Aspen residents are accustomed.

“Aspen is different than what you might find in Denver or Fort Collins,” he said. “And I believe that law enforcement can do their job and still be honest with people and be fair.”

However, prosecutor Richard Nedlin countered that Fain’s tactics were hardly “outrageous,” as Wills alleged. And, reading from a motion he filed last week, Nedlin said that a “dismissal based upon a due-process violation of outrageous governmental conduct must be so egregious that it violates fundamental fairness and is shocking to the universal sense of justice.”

The case dates back more than one year, when Mulcahy’s supervisors at Koto Aspen, a Hyman Avenue gift shop, told police that he had stolen a $275 pair of Gucci sunglasses. Mulcahy also confessed to his co-workers that he took the glasses, police said.

But Mulcahy has pleaded not guilty to the charge, and Wills said that the culmination of events that led to Fain’s arrest of Mulcahy on Feb. 15, 2011, showed a troubling pattern of police work. Wills contended that Fain was overly aggressive in his pursuit of Mulcahy and tried to trick Mulcahy into confessing to a crime he did not commit by threatening to draft a warrant for his arrest.

Wills argued that although the sunglasses were in the custody of the Aspen Police Department – Mulcahy’s co-workers turned the glasses over to police after they found them stashed behind the Koto building – Fain first approached Mulcahy about the theft allegation at Kenichi restaurant, where Mulcahy was having a Valentine’s Day dinner with a woman and another couple. The two went outside, and Mulcahy denied having any knowledge of the sunglasses. Fain told Mulcahy to telephone him after he finished dinner so they could discuss the issue more. He didn’t.

Around midnight, Fain texted Mulcahy to call him back, and the officer eventually arrested him after a basketball game at the Skier Dome at Aspen High School. Mulcahy said Fain was accompanied by three other officers, who acted like a “SWAT team” when they positioned themselves by the gymnasium’s exit doors with about two minutes remaining in the game.

Fain also testified that he did not believe he had probable cause to arrest Mulcahy at Kenichi, but more evidence surfaced that legitimized his warrantless arrest after the game. Fain also said he could have arrested Mulcahy in the middle of the game but elected not to out of respect for the players and those in attendance.

“I thought it would be disrespectful to walk out on the court and arrest him,” said Fain, who detained Mulcahy outside of the gym after the game.

Wills, however, had difficulty accepting that, saying that Fain deliberately tried to embarrass and harass Mulcahy.

“I believe that law enforcement can do their job and still be honest with people and fair,” Wills said. “My problem here is that (Fain) was forcing a bargain by threatening an arrest warrant to get people to waive their statutory and constitutional right to silence. … Why is Fain in such a huff to get this guy prosecuted? Why is it OK for him to lie?”

If anything, Fain was patient with Mulcahy and gave him ample opportunity to turn himself in or, at the very least, explain himself, Nedlin said. And the judge noted that it’s not unusual – and in many instances not illegal – for police to try to coerce a suspect into a confession.

Nedlin also said that Fain rightfully set a $500 bond on Mulcahy after he was arrested. The reason, Nedlin said, was that Mulcahy had three prior failure-to-appear violations, though Wills said those infractions actually stemmed from his nonpayment of traffic fines and court costs, which he later paid.

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