Prosecutor, defense attorney at odds in case of stolen sunglasses |

Prosecutor, defense attorney at odds in case of stolen sunglasses

Courtesy photoMalachi Jerimiah Mulcahy

ASPEN – A judge is scheduled to hear arguments Tuesday in Pitkin County Court over whether a theft charge should be dismissed against an Aspen man because of a police officer’s alleged misconduct.

Snowmass Village attorney Lawson Wills, who is defending a man arrested on suspicion of misdemeanor theft in February 2011, has accused Aspen Officer Jeff Fain of outrageous governmental conduct, an allegation deemed “specious” and “baseless” by Pitkin County prosecutor Richard Nedlin.

A motion filed by Wills asks a judge to dismiss the theft charge against Malachi Jerimiah Mulcahy, 28, of Aspen. Wills’ Dec. 13 motion questions the methods Fain used before and after the arrest of Mulcahy.

Among Wills’ contentions are that Fain confronted Mulcahy about the theft while he was having Valentine’s Day dinner with his girlfriend at a downtown sushi restaurant and the next evening “unnecessarily embarrassed” Mulcahy by arresting him after a recreational basketball game at the Aspen High School gym.

Nedlin, in a court brief filed Wednesday, argues that Fain followed proper procedure and the charge should not be dropped.

“The behavior of Fain was nothing less than respectful, thoughtful and dignified,” Nedlin wrote.

Wills and Nedlin are scheduled to make their cases Tuesday in front of Judge Erin Fernandez-Ely in Pitkin County Court. Both attorneys declined comment when contacted last week. Mulcahy pleaded not guilty to the charge in July.

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.

Fain, the lead officer on the case, was told by the employees that Mulcahy would be dining at Kenichi on Valentine’s Day. So the officer went to the restaurant and spotted Mulcahy having supper with his girlfriend, according to court papers.

In his motion to dismiss, Wills claims that Fain ordered Mulcahy outside of the restaurant so he could speak to him about the sunglasses.

“(Mulcahy) denied involvement in the crime and requested that he be allowed to return to his dinner table,” Wills wrote. “Despite this, Officer Fain stated that ‘I have enough to arrest you right now’ and thereafter insisted that (Mulcahy) telephone him right after dinner and ‘come down to the station for questioning.'”

Mulcahy did not call Fain after dinner, prompting the officer to send him a text message saying that he would start drafting a warrant for his arrest. Mulcahy then called Fain, who told him to call him no later than 4 p.m. the next day, according to Wills’ motion.

Mulcahy did call, leaving a message with Fain “that he did nothing wrong and was not coming in to the station,” Wills wrote.

That evening, Fain and two other officers went to the high school gym, watched Mulcahy play in a recreational league basketball game for 45 minutes, then “promptly confronted (Mulcahy) in front of the home crowd. (Mulcahy) was taken outside and placed in handcuffs. On the way to jail, Officer Fain stated that he ‘didn’t want to do this, but you (Mulcahy) left me no choice,'” Wills wrote.

Wills also claims Fain and Nedlin violated Mulcahy’s Fifth Amendment rights by disregarding the court’s administrative order pertaining to bonds, and did so by setting a $500 bond at the time of Mulcahy’s arrest and coercing him into posting it. Fain set the bond, Wills contended, because Mulcahy refused to answer any questions about the stolen sunglasses.

“In this case (Fain) issued threats, manipulations, and coercions in an attempt to influence (Mulcahy) to waive his constitutionally guaranteed 5th amendment right to silence,” Wills’ motion says. “When (Mulcahy) filed to waive this right, (Fain) then intentionally disregarded the rule of this court and caused (Mulcahy) to be admitted bail. Such action is highly egregious and should be heavily discouraged by this court.”

Prosecutor Nedlin, however, argued in his motion that Fain was more than fair with Mulcahy, and that the officer’s actions were “not shocking to the universal sense of justice,” a standard set by the U.S. Supreme Court regarding outrageous governmental conduct.

Nedlin also has maintained that the bond was properly set because Mulcahy had a previous criminal record including failure-to-appear violation.

“… (Mulcahy) claims that interrupting dinner, sending a text, making an arrest at a basketball game and placing a five hundred dollar bond is outrageous conduct,” Nedlin wrote. “The behavior of officer Fain was nothing less than respectful, thoughtful and dignified. Officer Fain had probable cause to make an arrest when he confronted the defendant at Kenichi. Officer Fain would have been well within his duties as a law enforcement officer to have placed handcuffs on the defendant in front of his girlfriend and a busy restaurant.

“Rather he made the decision to ask him outside to speak with him and let him finish his diner with the promise (Mulcahy) would call him. The defendant broke that promise so Officer Fain sent a text stating he would write up a warrant and immediately received a call form the defendant. Law enforcement may use trickery, deceit and many other means dealing with a suspect. That in an of itself does not mean that it is outrageous governmental conduct.”

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