Public defender to challenge indictment in Aspen assault case
November 3, 2009
ASPEN – A district court judge will review whether a prosecutor acted improperly while presenting a case in front of a grand jury, which earlier this year indicted an Aspen man on sexual assault charges.
Public defender Stephen McCrohan, who is representing Jacob Frutin, intends to file a motion challenging the indictment, arguing that he has no way of knowing whether the grand jury was tainted or if members were selected prejudicially because it’s a secret proceeding.
“Mr. Frutin has an absolute right to have a jury of his peers,” McCrohan argued in district court Monday. “We need to know whether people were selected because of race or something else.”
McCrohan requested that the master list of jurors and those who were seated on the grand jury be made available to him and his client.
He also said he wants to make sure members of the grand jury didn’t form an opinion of his client before indicting him as a result of media coverage in the case. McCrohan noted that one grand jury member, whose son had gone to school with Frutin, may have had a conflict as a result.
“I have concerns about how the grand jury was selected in this case,” he told Judge James Boyd of the Ninth Judicial District.
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McCrohan also argued that Assistant District Attorney Mordkin on several occasions answered for witnesses and gave his opinions in front of the grand jury while seeking probable cause for indicting Frutin.
Frutin, who has been incarcerated in Pitkin County Jail since March, is charged with sexual assault of a victim under the age of 15 and the transfer or dispensing of marijuana to a person under 15. He also is accused of a second sexual assault count and unlawful distribution of psilocybin mushrooms.
The alleged incidents took place in November 2007. The victim was younger than 15 years old at the time, according to court records.
Mordkin said the court selected the jurors and no improper conduct occurred.
“To suggest that this court excluded jurors is ludicrous,” Mordkin said, adding it’s irrelevant what he said to the grand jury because it is limited to only hearing witness testimony in determining probable cause.
Boyd said it’s appropriate for the court to review the transcript from the grand jury proceedings to determine if there was enough evidence to support probable cause and whether the prosecution did something to initiate it.
The grand jury is the same one that has convened to hear evidence regarding last November’s carbon monoxide poisoning deaths of a Denver family of four. The grand jury also indicted a local homeless man, Landin Smith, on four felony counts of contributing to the delinquency of a minor – after a judge ruled in June there was not sufficient evidence to prosecute him on the same charges.
Smith on Monday pleaded guilty to assaulting a police officer as part of a plea bargain; the other charges were dismissed.