Plea deal in Aspen escape case hits snag
November 16, 2010
ASPEN – Was Warren Carter in custody in the moments leading up to his alleged escape from the Pitkin County Courthouse and onto the streets of Aspen?
It’s a legal question that has frustrated a pending plea agreement Carter hatched with the District Attorney’s Office last month.
Carter, 45, had been scheduled to plead guilty Monday in Pitkin County District Court to the class-three felony charge of escape. The plea stemmed from a July incident in which he allegedly fled the courthouse after Judge James Boyd sentenced him to three years in state prison for the conviction of theft of copper wire from The Residences at The Little Nell hotel in 2008.
Police arrested him behind the Red Brick Center for the Arts about 10 minutes after he allegedly fled.
As part of the plea agreement, prosecutor Arnold Mordkin had agreed to drop five charges of habitual criminal charges – adding up to 51 years behind bars – against Carter, who’s had more than a dozen cases filed against him over the years, ranging from traffic offenses to felony forgery and burglary charges.
Instead, he faces three years in the Department of Corrections if he accepts the plea deal.
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But his court-appointed attorney, Peter Rachesky of Glenwood Springs, recently filed a motion seeking the audio transcript of Carter’s sentencing hearing that led to his alleged escape. Rachesky said the recording may reveal information pertinent to the question of whether Carter was in custody at the time he allegedly bailed.
“The sequence of events is critical in this matter,” Rachesky said.
After he sentenced Carter, Boyd instructed the defendant to sit on a courtroom bench until further notice. Instead, he “walked quickly toward the door of the courtroom,” before running down the stairs and out the west door of the courthouse, according to an arrest warrant affidavit.
Judge Gail Nichols, sitting in Monday for Boyd, said she did not have the authority to release the audio recording. Instead, she said Rachesky can review the written transcript of the proceeding in question.
“Let’s start with the transcript,” she said. “I’m not going to release the original tape because I’m not authorized to.”
Rachesky said the transcript won’t suit his purposes.
“No matter what the transcript says the defendant can’t be satisfied,” he said, arguing that the audio recording will be more revealing.
Mordkin said time is running out on the plea agreement.
“We are not willing to extend the offer into January,” he said.
Carter recently sent a letter to The Aspen Times contending that he was not in custody at the time he left the courthouse.
“A person is not in custody until an arrest, in the sense of establishing physical control over the arrestee has been effected,” he wrote. “Physical control does not [necessarily] require physical restraint; the officer presence and the suspect submission in concert may be sufficient to establish the assurance requisite to a determination of physical control, that the suspect will not leave.”
The matter has been continued until Dec. 6. Carter remains in the Pitkin County Jail.