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SUPREME COURT, STATE OF COLORADO

ORIGINAL PROCEEDING IN DISCIPLINE BEFORE THE


PRESIDJNGDISCIPL1NARY3UDGF
1300 Broadway, Suite 250
Denver, Colorado 80203

FILED

Complainant:
THE PEOPLE OF THE STATE OF COLORADO

JAN 212015
I

ESIDING DISCIPLINARY JuDGE


UPREME COURT OF COLORADO

ACOURT USE ONLY A

Respondent:
FRANCISCO E. RUYBALD) IV, # 18448

Case Number: 13PDJ065


(consolidated with
14PDJ064)

Erin R. Kristofco, #33100


Assistant Regulation Counsel
James C. Coyle, #14970
Regulation Counsel
Attorneys for Complainant
1300 Broadway, Suite 500
Denver, Colorado 80203
Telephone: (303) 928-7911
Fax No.: (303)501-1141
Alexander R. Rothrock, # 21201
Sara Van Deusen, #38735
Respondents Counsel
Bums Figa & Will, PC
6400 S. Fiddlers Green Cir., Suite 1000
Greenwood Village, CO 80111
Telephone: 303-796-2626
Fax No: 303-796-2777

STIPULATION, AGREEMENT AND AFFIDAVIT CON


TAINiNG THE
RESPONDENTS CONDITIONAL ADMISSION OF MIS
CONDUCT

On is
day of January, 2015, Erin R. Kristofco, Assistant Regulation
Counsel and
attorney for the complainant, Francisco E. Ruybalid, IV, the Respon
dent who is represented by
attorneys Alexander R. Rothrock and Sara Van Deusen in these
proceedings, enter into the
following Stipulation, Agreement, and Affidavit Containing
Respondents Conditional
Admission of Misconduct (Stipulation) and submit the same
to the Presiding Disciplinary

Judge for his consideration.


RECOMMENDATION: Six-month suspension with the requirement of
reinstatement
pursuant to C.R.C.P 251 29(c) and (d), all stayed upon successful completion
of a twenty..
school, and payment of costs.
1.
The Respondent has taken and subscribed to the oath of admission, was admitt
ed
to the bar of this Court on April 27, 1989, and is registered as an attorney upon
the official
records of this Court, registration no. 18448. Respondent is subject to the jurisdiction
of this
Court and the Presiding Disciplinary Judge in these proceedings.
2.
Respondent enters into this Stipulation freely and voluntarily. No promises
have
been made concerning future consideration, punishment, or lenience in the
above-referenced
matter It is Respondents personal decision, and Respondent affirms there has been
no coercion
or other intimidating acts by any person or agency concerning this matter.
3.
amended.

This matter has become public under the operation of C.R.CP. 251.31(c)
as

4.
Respondent is familiar with the rules of the Colorado Supreme Court regard
ing
the procedure for discipline of attorneys and with the rights provided by those rules. Respo
ndent
acknowledges the right to a full and complete evidentiary hearing on the
above-referenced
complaint. At any such hearing, Respondent would have the right to be represented
by counsel,
present evidence, call witnesses, and cross-examine the witnesses presented by
Complainant. At
any such formal bearing, Complainant would have the burden of proof and would be
required to
prove the charges contained in the complaint with clear and convincing eviden
ce. Nonetheless,
having full knowledge of the right to such a formal hearing, Respondent waives
that right.
5.
Respondent and Complainant specifically waive the right to a bearing pursua
nt to
C.R.C.P. 251 .22(c)(1).
6.
Respondent has read and studied the complaints in 13PDJ065 and 14PDJ
064,
copies of which are attached hereto as Exhibits A and B, and Respondent is familia
r with the
allegations therein. Respondent and Complainant stipulate to the follow
ing facts and
conclusions listed in paragraphs 7 to 253 below:
7.
During all times relevant to the matters discussed below, Respondent was
and is
the elected District Attorney for the Third Judicial District, which includes Las
Animas County
and Huerfano County.

The parties spent several days negotiating a resolution of this matter after mediat
ion with mediator Patrick Tooley.
In addition to many other legal accomplishments, Mr. Tooley serves as a Hearin
g Panel member in disciplinary
matters pending before the Presiding Disciplinary Judge.
2

People v. ScotiA. Kibiit, I1CR19R (hi disciplinary complaint I3PDJO6S)

On December 20, 2011, Respondent filed the Peoples Compl


8.
aint and
Inforrnation-Peop1e v -Scott A.Kibi# Las AnimasCounty Diftit Cu
r(il CR198 (the Kibiti
case), charging Scott Allen Kibitt with Second Degree Murder, Heat of
Passion, and Possession
of a Weapon by a Previous Offender.
9.
Crim. P. 16(l)(a)(1)(IV) and Crim. P. 16(l)(bXl) (as published in 2011)
required
the prosecutor to make available to the defense all books, papers, docum
ents, photographs or
taiigible objects held as evidence in connection with the case, within 20 days
of the defendants
first appearance.
10.
The Public Defender, Patrick McCarville, filed certain discovery Motion
s. The
court held a hearing on February 15, 2012, during which the court ordere
d that Respondent
provide the defense with notice no less than 72 hours prior to any ballisti
c or other scientific
expert testing conducted by the Cifi in the Kibitt case. Respondent was
present for the entire
hearing on February 15, 2012.
11.
On Apr11 24,2012, Respondent sent a Letter to Sergeant Santistevan of the
Las
Animas County Sheriffs Office, wherein Respondent requested that
the Sheriffs Office
expeditiously send the gun and other evidence including gunshot residue
receptacles, blood
samples, and shell casings to the CBI for laboratory and forensic testing.
12.
The April 24, 2012 letter from Respondent to Sergeant Santistevan does
not
request that the Sheriffs Office or the CBI provide any prior notice
of testing, nor does it
mention the courts order requiring that the defense be given 72 hours notice
to the defense prior
to any testing.
13.
Respondent received a copy of a letter dated May 4, 2012, from
Sergeant
Santistevan to CBI requesting forensic testing on the Kibitt case evidence.
Respondent received
a copy of the CBI evidence chain of custody form, filled out by Sergea
nt Santistevan and the
CBL
14.
On May 17,2012, Respondent received a report from Sergeant Santistevan
which
indicated the CBI would be doing testing on the firearm.
15.
At a hearing on May 30, 2012, the court again raised the issue of
CBI forensic
testing and the fact that the court had already granted defendants motion
requesting 72 hours
notice prior to any testing.

16.
Respondent admitted on the record: 1 think I forgot about the 72 hours..
. The
court specifically recommended that Respondent call the CBI again to
tell them about the courts
order. Respondent stated to the court that he would do so. Respondent
then agreed on the
record, Okay. All right. Well whenever theyre going to do the test, Ill
give [public defender]
72 hours notice.
3

17.
On May 30, 2012, Respondent called a CBI employee, Sean West, regarding the
testing in the Kibitt case. Respondent made no mention to Mr. West of the order for 72 hours
notice prior to testing.
18.
On June 6, 2012, Respondent received a report from Sergeant Santistevan with an
attached fax from the CBI. The June 6, 2012 report and attached fax stated that the CBI had the
Kibiu evidence in its possession for completion of analysis.
19.
On June 25, 2012, Respondent received a report from Sheriff Officer Navarette
stating that the CBI weapon testing results regarding the Kibitt case had been received. The CBI
weapon testing report is dated June 21. Respondent received a CBI laboratory testing report
dated July 16, 2012, containing the results of blood and stain testing performed on Mr. Kibitts
gun. Respondent stated to Office of Attorney Regulation Investigators, the results of the
forensic testing described in the preceding section were an evidentiary triumph for the defense.
On August 15, 2012, Respondent filed a Notice of Additional Discovery, which
20.
included the results of the CBI testing. At a hearing on August 21, 2012, the Public Defender
made an oral motion for sanctions against Respondent for discovery violations, noting that
Respondent had violated the courts order by failing to give the defense 72 hours notice prior to
testing.
21.
A. Kibitt.
22.

On October 16, 2012, Respondent filed a motion to dismiss the case against Scott
The court granted the motion, and issued a sanctions order on October 16, 2012,

23.
Crim. P. 16(IXb)(4) requires Respondent to ensure that a flow of information is
maintained between the investigative personnel and Respondents office, sufficient to place all
material and information relevant to the accused in Respondents possession.
24.
Respondent did not provide the defense with his experts curricula vitae, as
required by the district courts order.
25.
Respondent did not comply with Crim. P. 16(T) and 16(V) mandatory, automatic
disclosure provisions. Respondent did not provide a list of trial exhibits to the defense as the
court had ordered.
Respondent did not provide the defense with the required expert disclosures, as
26.
ordered by the court. Respondent did not inform the Sheriffs Office or the CBI that the defense
should be given 72 hours notice prior to any testing, and allowed the testing to occur without any
prior notice to the defense.
27.
By his conduct described above, Respondent did not diligently represent the
People in violation of Cob. RPC 1.3, and engaged in conduct prejudicial to the administration of
justice in violation of Cob. RPC 8.4(d).
4

People v. Jeremy Licon, 10CR154 (in disciplinary complaint 13PDJ065)

--

28.
Jeremy Licon was arrested on September 30, 2010 for domestic violence and
-trespass.- Oa-October--7, 20l0Respondentproduced-to the defense a 64-page- Trinidid Plice
Department investigation report, including four color photos and reports containing Mr. Licons
history of drug abuse and domestic violence.
29.
On October 21, 2010, Respondents Assistant District Attorney, Clay MeKisson,
filed a Complaint and Infonnation, People v. Jeremy Licon, Las Animas County District court,
10CR 154 (the Licon case), against Mr. Licon for First Degree Criminal Trespass, Theft,
Criminal Mischief; and Conspiracy to Commit Theft.
30.
On November 16, 2010, and November 23, 2010, Respondent filed Notices of
Additional Discovery, listing four additional pages of a law enforcement investigation report, the
Trinidad Police Department Supplemental Report, and incident reports regarding Mr. Licon from
the Raton Police Department in New Mexico.
31.
The investigation reports stated that law enforcement had collected evidence
regarding Mr. Licon, including photographs of the crime scene, photos of Mr. Licon on CD,
recorded interviews of Mr. Licon and the victim, Jessica Gerardo, and buccal swabs from Mr.
Licon.
32.
Under Crim. P. 16(I)(a)(1)(I), automatic disclosure by the prosecuting attorney of
all witness statements is required, whether or not the defense requests them. Respondent failed
to produce to the defense evidence in the Licon case, including photographs of the crime scene,
photos of Mr. Licon on CD, recorded interviews of Mr. Licon and the victim, Jessica Gerardo,
and buccal swabs from Mr. Licon.
33.
On February 29,2012, defense counsel filed a Motion for Sanctions for Violation
of Criin. P. 16. The Motion alleged that Respondent violated Crim. P. 16 because he had never
produced the above evidence in discovery, as is required by the Crim. P. 16(I)(b)(1) mandatory
automatic disclosure requirement.

34.
Based on Respondents failure to disclose evidence over a period of 17 months,
the defense requested as a sanction that the case be dismissed, or that the above-listed evidence
be excluded from trial. A hearing on the Motion for Sanctions was set for March 23,2012.
35.
Immediately prior to the hearing, Respondent filed a motion to dismiss the case
against Mr. Licon. The court granted the motion to dismiss.
36.
Respondent did not determine what evidence should be disclosed to the defense
during discovery in the Licon case. Respondent did not make appropriate and timely disclosures
to the defense in the Licon case.

37.
By his conduct described above, Respondent did not diligently represent the
People in violation of Cob. RPC 1.3, and engaged in conduct prejudicial to the administration of
justice in violation of Cob. RPC 8.4(d).
-

-----

38.
On September 17, 2012, Defendant Castorena was arrested for theft. Later that
day, Respondent received a police report which stated that the Trinidad Police Department had
been called by a Walmart store regarding a theft, allegedly committed by Castorena.
39.
The police report sent to Respondent discussed Walmarts surveillance system
and indicated that Officer LePlatt of the Trinidad Police Department had viewed the surveillance
videos. The surveillance video cameras had recorded defendant Castorena stealing five iPads,
and concealing them in an air mattress box.
40.
The Walmart security personnel, and officers of the Trinidad Police Department,
were able to view Mr. Castorenas identification card and confirmed the person in the Walmart
video was the defendant, Mr. Castorena.
41.
Respondent received another police report dated September 18, 2012. The report
noted relevant evidence including two compact discs containing video surveillance of the crime
allegedly committed by defendant Castorena.
42.
On September 25, 2012, Respondent filed a Complaint and Information against
Defendant, People v. Victor J Fossen Castorena, Las Animas County District Court, 12CR192
(the Castorena case).
43.
Respondent did not request a copy from the Trinidad Police Department of the
surveillance video of Mr. Castorena stealing the five IPads. Respondent did not comply with
Crim. P. 16(IXbX4) which required Respondent to ensure that a flow of information is
maintained between the investigative personnel and Respondents office, sufficient to place all
material and information relevant to the accused in Respondents possession.
44.
Respondent did not timely make available the Walmart surveillance Cl) to the
defense counsel, as is required under Crim. P. 16(IXbXI) mandatory, automatic disclosures.
45.
At a dispositional hearing on November 7, 2012, the public defender requested a
copy of the Walmart video surveillance CD. At the hearing, the court noted that failure to
produce the CD was a violation of Crim. P. 16(1) and 16(V) mandatory, automatic disclosures.
46.
The court ordered that Respondent must produce the Walmart surveillance videos
to the defense prior to November 28, 2012. Respondent assured the court he would get the CD
to the defense within two weeks, and prior to the next hearing set for November 28, 2012.
47.
On November 7, 2012, Respondent mailed a letter to the Trinidad Police
Department requesting (for the first time) a copy ofthe Walmart surveillance CD.
6

48.
At the hearing on November 28, 2012, the public defender stated he had not yet
received the surveillance CD, and he made an oral motion for discovery sanctions against
Respondent.
49.
On November 29, 2012, the court issued a written order granting the defense
counsels request for sanctions. The court barred Respondent from offering the Walmart
surveillance CD into evidence at trial, and no witness could mention the surveillance videos.
A
note in Respondents case file indicates the Trinidad Police Department sent Respondent the
surveillance Cl) on November 29,2012.
-

50.
On December 4, 2012, the Public Defender picked up the videos from the District
Attorneys Office. On December 12, 2012, the court set the case for a jury trial, to begin May
21,2013. At a dispositional hearing on February 13, 2013, Respondent made an oral motion to
dismiss the case.
51.
Respondent stated in open court that his reason for dismissal was that the
surveillance videos were the cornerstone of the case, and the discovery sanction suppressing
the surveillance video made it impossible for him to prove his case against Defendant Castorena.
The court issued a minute order approving the dismissal.
52.
Respondent did not get a copy of the Walmart surveillance CD from law
enforcement in a timely manner. Respondent did not determine what evidence should be
disclosed to the defense during discovery in the Castorena case.
53.
Respondent did not ensure that a flow of information was maintained between the
investigative personnel and Respondents office, sufficient to place all material and information
relevant to the accused in Respondents possession, as is required by Crim. P. 16W(b)(4).
54.
Respondent did not make appropriate and timely disclosures to the defense in the
Castorena case. Respondent did not comply with Crim. P. 16(l)(b)(1) and 16(V) in the
Castorena case.
55.

As a result, the resolution ofthe Castorena case was substantially delayed.

56.
By his conduct described above, Respondent did not diligently represent the
People in violation of Cob. RPC 13, and engaged in conduct prejudicial to the administration of
justice in violation of Cob. RPC 8.4(d).
People v. Joseph Rodriguez, 12CR242 (in disciplinary complaint 13PD3065)
57.
On December 14,2012, Respondent filed a Complaint and Information, People v.
Joseph Rodriguez, Las Animas County District Court, 12CR242 (the Rodriguez case), against
defendant Rodriguez for Aggravated Robbery. Criminal Attempt to Commit Aggravated
Robbery, Theft and Menacing.

58.
Respondent did not comply with the mandatory, automatic disclosures required
by Crim. P. 164J)(b)(1) and 16(V), by failing to make available to the defendant, witness
statements, 911 recordings, 2012 police reports, recorded interviews of prosecution witnesses,
and criminal histories for certain prosecution witnesses.
59.
On March 26, 2013, defense counsel filed a Motion for Sanctions for Discovery
Violations. Respondent then produced some of the mandatory disclosures to the defense.
60.
On May 22, 2013, the defense filed an amended Motion to Dismiss As Sanction
for Discovery Violations.
61.
On May 24, 2013, District Court Judge Appel held a hearing on the pending
Motion and Amended Motion to Dismiss As Sanction for Discovery Violations.
62.
Judge Appel noted that Respondent had only recently produced to defense 89
pages of new discovery, and an additional CD with 911 recordings. Respondent was ordered to
flie any response to the Amended Motion to Dismiss by June 10, 2013.
63.
The court reset the hearing on the defenses Amended Motion to Dismiss and
Motion for Sanctions to August 9, 2013. Prior to any ruling on the defendants Motion for
Sanctions, Respondent agreed to a plea deal with defendant Rodriguez. Respondent amended
the Peoples complaint, dropping all felony charges, and charging Mr. Rodriquez with
misdemeanor theft only. Defendant Rodriguez pled guilty to the amended complaint for
misdemeanor theft.
64.
Respondent did not timely watch police videotapes of witness interviews, which
were in his possession, and which were potentially exculpatory evidence in People v. Joseph
Rodriguez 12CR242.
65.
Respondent did not timely determine what evidence should be disclosed to the
defense during discovery in the Rodriguez case. Respondent did not timely make appropriate
and timely disclosures to the defense in the Rodriguez case, including 911 recordings, witness
statements, December 2012 police reports; 5 CD recordings of interviews conducted with
prosecution witnesses, and criminal histories of four prosecution witnesses.
66.
Respondent did not comply with Crim. P. 16(1) and 16(V) mandatory, automatic
disclosure provisions, which caused the court to set hearings regarding discovery, the case
to
extend past the defendants statutory speedy trial date, and the court to have to continue the
trial date.
67.
By his conduct described above, Respondent did not diligently represent the
People in violation of Cob. RPC 1.3, and engaged in conduct prejudicial to the administration of
justice in violation of Cob. RPC 8.4(d).

People v. Nicole Nunez, 13CR27 (in disciplinary complaint 14PDJ064)


68.
On February 8,2013, Respondent flied a Complaint and Information against Ms.
Nunez, including three counts of distribution of a controlled substance schedule 11, C.R.S. 18-18-405(1),-(2)(a)(I)(A) -(a third-degree-felony);- People -v.Jicole Nuwe4-LaAnithas Cnty
District Court, 13CR27 (the Nunez case).

69.
On February 13, 2013, the defense counsel filed a Combined Demand for
Preliminary Hearing, Motion for Discovery, and to Reduce or Modify Bond. Respondent did not
produce evidence in his possession, including information about the confidential informant
(Travis Murphy or Cl) who assisted law enforcement in a sting operation involving Ms.
Nunez.
70.
Respondent did not comply with the Crim. P. 16(1)(aXl)(V) and 16Q)(a)(l)(Vll)
mandatory automatic disclosure requirements.
71.
On February 25, 2013, Respondent sent a letter to law enforcement asking them
to provide all identifying information about the Clfor purposes of producing that infonnation
to the defense.
72.
On June 21, 2013, Respondent sent a letter to the Trinidad Police Department
requesting that they send the Nunez suspected drug samples to CBI for testing.
73.
On September 24, 2013, the Trinidad Police Department gave Respondent a Drug
Investigation Report stating that the police department received the lab report from the CBI,
identifying the substances the Cl had received from Ms. Nunez as meth.
74.
Also on September 24, 2013, the defense filed a motion to dismiss for discovery
violations alleging failure to produce relevant evidence despite multiple motions.
75.
At the time the defense filed the Motion to Dismiss, Respondent was in
possession of some of the information related to thefts allegedly committed by the Cl, including
the Cls medical records, and the Cls relocation expenses paid to the CI by law enforcement
and/or the District Attorneys Office.

76.
Crim. P. 16(1)(aX2) and 16(V) state that disclosure of evidence which tends to
negate the guilt of the accused as to the offense charged, or would tend to reduce the punishment
therefor, is mandatory and automatic.
77.
At the September 27, 2013 motions hearing, Respondent moved to dismiss the
case against the defendant due to an inability to locate the confidential informant. On
September 30, 2013, Respondent filed a written Motion to Dismiss, citing his inability to locate
the CL On October 1, 2013 the court issued an Order Granting Prosecutions Motion to Dismiss.

78.
Respondent did not diligently represent the People in violation of Cob. RPC 1.3,
and engaged in conduct prejudicial to the administration of justice in violation of Cob RPC
8A(d).
Peop-v.-Tafoya-13C-R39-(in

dplinaiycomplaint 1-JO

79.
On February 8, 2013, Respondent flied a Complaint and Information against
Vincent Tafoya based on Mr. Tafoyas alleged sale of three narcotic pills to confidential
informant (Cr), Travis Murphy, in September 2012 during a drug sting operation.
80.
Mr. Tafiya was charged with two counts of distribution of a controlled
substance, schedule II, a class three felony, People v Vincent Tafoya, Las Animas County
District Court, 13CR39 (the Tafoya case).
81.
Law enforcement was paying the Cls living expenses, specifically the Cls rent,
during and after the drug sting operation. Respondent did not timely produce to the defense
information that was in his possession, or available from law enforcement, related to the CI,
Travis Murphy.
82.
On February 28, 2013, Respondent issued a subpoena to testify to the Cl.
Respondent intended to call the CI to testify at trial against the defendant, Mr. Tafoya. Trial in
the Tafoya case was set for August 20-21, 2013.
83.
In June 2013, the Respondent received information that CI Travis Murphy had
been investigated by law enforcement for two separate crimes but was not charged. In February
and March 2013, the Respondent had information that the District Attorneys office had paid the
Cls living expenses in 2013.
84.
Evidence related to incentives or money given to the Cl was exculpatory
evidence related to the case against defendant Robinson because the evidence may have tended
to show at trial the Cls lack of credibility, and his motive to testify favorably for the
prosecution. Crim. P. 16(I)(a)(2) and 16(V) state that disclosure of evidence which tends to
negate the guilt of the accused as to the offense charged, or would tend to reduce the punishment
therefor, is mandatory and automatic.
85.
Despite having information that the District Attorneys office had paid the Cls
living expenses in 2013, Respondent did not disclose the information regarding the Cls alleged
thefts to the defense until mid-August, 2013.
86.
On July 8, 2013, the defense filed a Motion to Compel Discovery Pertinent to
Disclosed Informant, which requested disclosure of any infonnation regarding thether the CI
had sought assistance from the District Attorney or police to resolve any criminal charges,
complaints, or personal, civil or criminal matters regarding the CI, and the CTs address and place
of employment.

10

87.
Respondent did not have the Tafoya suspected drug samples tested by CBI until
five months after Respondent filed the Complaint against defendant Tafoya. On July 19, 2013,
Respondent sent a letter to the Trinidad Police Department requesting that the suspected Tafoya
drug samples be sent to CR1 for ahalysis.
88.
At a hearing on July 26, 2013, Respondent moved to continue the trial because he
did not yet have the expert reports and laboratory results of the analysis of the drugs allegedly
given to the CI by Mr. Tafoya. Respondent told the court that law enforcement had not sent the
drugs to the CBI lab until July 2013.
89.
The court continued the trial until October 7-8, 2013, and ordered Respondent to
produce the laboratory results no later than September 3, 2013. The court also ordered
Respondent to produce the CI Travis Murphys address and employment information to the
defense.
90.
Due to a subpoena in a different case, Respondent had possession of the Cls
medical records as of June 12, 2013, but did not produce them to the defense in the Tafoya ease
until July 11, 2013.
91.
Respondent never produced to the defense the expert reports from the laboratory
analyzing the drugs allegedly given from Tafoya to the CI obtained during the drug sting.
Despite the Crim. P. 16(1)(a)(1)(V) and 16(1)(a)(1)(Vll) mandatory automatic disclosure
requirements, Respondent did not timely produce the Cls address, phone, and place of
employment until after the defense filed a motion to compel and the court ordered Respondent to
do so.
92.
On September 23, 2013, the defense filed a Motion to Dismiss or for Other
Discovery Sanctions. On September 30, 2013, before the hearing on the Motion to Dismiss of
for Other Discovery Sanctions, Respondent filed a motion to dismiss the Tafoya case.
93.
Respondents Motion to Dismiss the Tafoya case was based on Respondents
alleged inability to locate Mr. Murphy, who was a material witness in the ease. The court granted
Respondents Motion to Dismiss on October 1, 2013.
94.
Respondent did not diligently represent the People in violation of Cob. RPC 1.3,
engaged
and
in conduct prejudicial to the administration of justice in violation of Cob. RPC
8.4(d).
People v. Robinson, 13CIt24 (in disciplinary complaint 14PDJ064)
95.
On January 30, 2013, the defendant, Jefiiey Robinson, was arrested based on his
alleged involvement with a law enforcement drug sting operation. Police reports in
Respondents file indicate that on two separate occasions, Mr. Robinson sold drugs to the paid
Cl, Travis Murphy, who had worked undercover for the Trinidad Police Department during the
months of September, October, and November, 2012.

11

96.
Law enforcement and/or the Respondents District Attorneys office was paying
the Cls living expenses, specifically the Cls rent, during and after the drug sting operation.
On
February 5, 2013, Respondent flied a Complaint and Information against defend
ant Jeffrey
Robinson, and charged him with two counts of distribution of a schedule 11 controlled substa
nce,
-a-class-3- felony, -and two-counts-as a eciaFoffenderwhich is a-srejatiP
l
Robinson, Las Animas County District Court, 13CR24 (the Robinson case).

97.
Respondent did not timely produce the information regarding the Cls
involvement with two thefts: one alleged theft from the Cls mother, and one a theft from a nurse
at the hospital where the CI was receiving physical therapy. Respondent had information that
on
November 26, 2012, CI Travis Murphy allegedly stole a nurse/physical therapists
wallet.
Respondent had or should have had information that law enforcement decided not to
pursue
charges against the CI for the alleged theft of the nurse/physical therapists wallet.
98.
Crirn. P. 16(I)(bX4) requires Respondent to ensure that a flow of information is
maintained between the investigative personnel and Respondents office, sufficient to place
all
material and information relevant to the accused in Respondents possession. Evidence
of the
theft and the decision by law enforcement not to pursue charges against the CI is exculp
atory
evidence as it relates to defendant Robinson, and therefore Respondent was require
d to
immediately disclose this information to the defense pursuant to Crim. P. 16(I)(a)(2) and 16(V).
99.
Respondent also had or should have had information that the Cl stole his
mothers credit card, and used it to conduct numerous fraudulent transactions in April, 2013.
Respondent had or should have had information that on April 19, 2013, the Cls mothe
r, Ms.
Sandoval, called the police to report that her son, Travis Murphy, had charged four fraudu
lent
transactions with her credit card without her permission.
100. After communicating with law enforcement, the district attorneys office decided
not to file charges against the CI, Travis Murphy, in connection with the alleged theft and
fraud
against the Cls mother.
101. Evidence related to both alleged thefts was exculpatory evidence related to
the
case against defendant Robinson because the evidence would have tended to show at
trial the
Cls lack of credibility, and his motive to testify favorably for the prosecution given the
alleged
leniency toward Travis Murphy by the police and prosecution regarding the alleged crimes
.
102.
Respondent knew or should have known from law enforcement the information
about the Cls alleged theft from the nurse/physical therapist in November 2012. Respon
dent
knew or should have known from law enforcement the information about the Cls alleged
theft
from his mother in April 2013. Despite the fact that Respondent knew or should have
known
this information about the CI, Respondent did not disclose this exculpatory information
per
Crim. P. 16(l)(a)(2) and 16(V).
103. On June 12, 2013, Respondent and defendant Robinson entered into a
plea
agreement. After final judgment was entered and the defendant was sentenced, defens
e counsel
learned ofadditional information regarding the CI, Travis Muiphy.
12

104. On November 8, 2013, the defense filed a Motion to Withdraw Plea and Vacate
Conviction, which requested that Mr. Robinsons conviction be overturned based on new facts
discovered by the defense.
105.
On November 18, 2013, before the court could address or rule on the allegations
of discovery violations, Respondent and the defense filed a Stipulated Motion to Vacate Plea and
To Dismiss all charges against defendant Robinson. The court granted the stipulated motion,
vacated the plea, and dismissed the case against defendant Robinson.
106. Respondent did not diligently represent the People in violation of Cob. RPC 1.3,
and engaged in conduct prejudicial to the administration of justice in violation of Cob. RPC
8.4(d).
People v. Waldo, 13CR72 (in disciplinary complaint 14PDJ064)
107. On April 11, 2013, Respondent charged defendant Waldo with one count of
sexual assault, a class four felony, People v. Waldo, Las Animas County District Court, 13CR72
(the Waldo case).
108. Respondent provided the defense with a copy of a video of a police interview with
the victim, but did not produce a copy of a video of a police interview with the defendant.
109. The defendant appeared at a preliminary hearing on May 22, 2013. The case was
set for trial to occur on October 7, 2013.
110. On July 30, 2013, the defense filed a Motion for Production of Specific
Discovery: Audio-Recorded Interview and Photographs. The motion requested the audio
recording of the police interview with the defendant, Mr. Waldo, and copies of the police
photographs taken during the investigation.
111. Respondent did not determine whether the CD produced to the defense had a copy
of both videos of police interviews with the victim and the defendant. On September 18, 2013,
the court held a hearing regarding Respondents failure to turn over discovery, as well as the
defense counsels motion to suppress DNA evidence.
112. At the hearing, Respondent was adamant that he had already produced the
recorded interview with defendant to the defense counsel.
113. The court took possession of the CD produced to the defense and after opening
files on the CD, detennined Respondent had not included the video of the police interview ofthe
defendant on the CD produced to the defense.
114.
On September 20, 2013, Respondent emailed defense counsel the audio file of
the police interview of Mr. Waldo, and the crime scene photographs.

13

115. On September 23, 2013, the court issued orders granting the defenses (1) Motion
for Preservation and Production of Specific Discovery and Impeachment Information, (2) Motion
for Production of Specific Discovery: Audio-Recorded Interview and Photographs, and (3)
Motion to Suppress Evidence Obtained as a Result of Law Enforcements Execution of Search
Warrant20i3-SW-35.--

116. On September 24, 2013, the court issued an Order re: Defense Request for
Sanctions Due To Alleged Discovery Violations by the District Attorney. In the September 24,
2013 order, the court noted that Respondent had also violated the courts May 29, 2013 order by
failing to provide a witness list to the defense.
117. The court set another hearing on possible sanctions against Respondent for
September 25, 2013. On September 25, 2013, Respondent orally moved to dismiss the case
against defendant Waldo.
118.
On October 7, 2013, Respondent filed a written Motion to Dismiss on the
grounds that (1) the DNA comparison was suppressed and (2) the victim was voluntarily
intoxicated at the time of the alleged crime and had received two DUIs since that time. The
court granted Respondents motion to dismiss on October 7, 2013.
119. Respondent did not diligently pursue the Peoples prosecution of defendant in the
Nunez case because Respondent failed to request CBI testing of the suspected drug samples until
four months after Respondent filed his Complaint and Information against the respective
defendants.
120. Respondent did not diligently pursue the Peoples prosecution of defendant in the
Tafoya case because Respondent failed to request CBJ testing of the suspected drug samples until
five months after Respondent filed his Complaint and Information against the respective
defendants.
121. In the Nunez and Tafoya cases, Respondent did not properly and timely make
disclosures to the defense, including drug testing results, witness criminal histories, and
information about a confidential informant.
122. Respondent was required to provide the above items to defense counsel in a
timely manner. Respondent did not timely disclose evidence in the Nunez, Tafoya, Robinson and
Waldo cases, and thus filed to comply with Crim. P. 16(1) and 16(V) mandatory, automatic
disclosure provisions.
123.
Respondents conduct caused the courts in all four cases to set hearings and
review motions regarding discovery. Respondents conduct caused the courts to issue orders
regarding discovery and potential sanctions for discovery violations in the Waldo case.
Respondents conduct caused the resolution of the Nuaez, Tafoya, Robinson and Waldo cases to
be delayed.

14

124. By his conduct described above, Respondent did not diligently represent the
People in violation of Cob. RPC 1.3, and engaged in conduct prejudicial to the administration of
justice in violation of Cob. RPC 8.4(d).
--

--

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FtETOSIWERSE

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125. For most of 2009 to 2014, Respondents district attorney office consisted of
Respondent, an Assistant District Attorney, and one other deputy district attorney (9)DA).
126. Respondent did not properly supervise and train two subordinate DDAs, Andrew
Hall and Ashleigh Wiggins, working in his office. Respondent did not make reasonable efforts to
ensure that other lawyers in his office conformed to the Rules ofProfessional Conduct.
127. Andrew Hall had limited prior county or district court trial experience, and Ms.
Wiggins bad no prior trial experience at the time Respondent hired them. During the relevant
time periods described below, neither DDA Hall nor DDA Wiggins had attended prosecutor trial
school, i.e., baby DA school.
128. Respondent hired DDA Andrew Hall in April 2011. DDA Hall immediately
began handling misdemeanor trials without reasonable training or supervision from Respondent.
129. In March 2013, Respondents former Assistant District Attorney, Clay McKissoa,
left the D.A.s office to become a probation officer. At that time, Hall had worked in
Respondents office for approximately two years. Respondent then promoted DDA Hall to the
Assistant District Attorney (ADA) position.
130. Halls training came from former ADA Clay MeKisson, and only lasted about one
week. Respondent did not reasonably supervise DDA Hall. Respondent gave Hall discretion
regarding Halls own caseload.
131. At the time Respondent promoted Hall to ADA, Hall had handled several felony
motions hearing, but had never handled a felony trial, and had never tried a felony case with
Respondent. At the time Respondent promoted Hall to ADA, Hall had not accompanied
Respondent to a felony trial or sentencing.
132. As ADA, Respondent assigned Hall the responsibility to handle most felony cases
in Huerfano County. Respondent reviewed certain of Halls files.
133. Respondent hired DDA Ashleigh Wiggins in January 2012. At the time
Respondent hired Wiggins, she had no trial experience. Respondent assigned Wiggins to handle
all misdemeanors for Huerfano County. Respondent assigned Wiggins to handle the juvenile
docket for Las Animas County.
134. When Wiggins started in January 2012, she was not trained by Respondent. DDA
Andrew Hall trained Wiggins regarding misdemeanor charges and trials.

15

135. Respondent did not train Wiggins regarding juvenile law. Respondent let
Wiggins borrow his copy of Title 19 (Colorado juvenile law) and the Rules of Juvenile Court
Procedure and told Wiggins to read them.
_136. DDA-Wiggins asked-Respondent tosend-her-toprosecutortriaischool,-i.e.; baby
D.A. School. Respondent did not send DDA Wiggins to baby D.A. School.
137. Respondent did not co-counsel any case with DDA Wiggins. Respondent did not
allow DDA Wiggins to attend or co-counsel any misdemeanor, juvenile, or felony proceeding
handled by Respondent. Mthough Wiggins was a subordinate lawyer in Respondents office,
Wiggins was not reasonably supervised by Respondent.
138. Respondent reviewed certain of DDA Wigginss case files. Respondent did not
review DDA Wigginss trial results. Respondent did not reasonably supervise or train DDA Hall
or Wiggins regarding their compliance with Crim. P. l6Q). Respondent did not assign any
competent attorney to train and/or supervise DDA Hall or DDA Wiggins.
139. Respondent did not take reasonable steps to ensure that his office practices, not
merely policies, actually complied with Colorado Rules of Professional Conduct binding all
lawyers practicing law in Colorado.
140. By way of illustration, Respondent did not make reasonable efforts to ensure that
the conduct of Deputy District Attorneys and Assistant District Attorneys woiicing in his office,
including Mr. Wasson, Mr. Hall and Ms. Wiggins, conformed to the Rules of Professional
Conduct in the following cases:
People v. Ryan Low, 09M185 (in disciplinary complaint 13PDJ065)

141. On April 27, 2009, former DDA, Geoffrey Wasson, charged Ryan Low with
Theft, Menacing, and Harassment as Acts of Domestic Violence, People v. Ryan Low, Las
Animas County Court, 09M185 (the Low case). Crim. P. 16(1)(a)(1)(IV) required the
prosecutor to make available to the defense all books, papers, documents, photographs or
tangible objects held as evidence in connection with the case.
142. Crim. P. 16 (1)(b)(1) (as published in 2009) required the D.A.s office to make
available the 911 tape to defense counsel no later than twenty calendar days after the defendants
first appearance. DDA Wasson failed to request copies of the 911 recordings from law
enforcement.
143. DDA Wasson failed to comply with Crim. P. 16(1){b)(4) which required the
prosecutor to ensure that a flow of information is maintained between the investigative personnel
and the prosecutors office, sufficient to place all material and information relevant to the
accused in the prosecutors possession.
144. On June 18, 2009, defense counsel sent a letter to the D.A.s office specifically
requesting all related dispatch recordings. DDA Wasson failed to produce any 911 recordings
16

to defense counsel in the Low case. Defendant failed to appear at a later hearing and was not
found or arrested until April 2011. In October 2011, defense counsel filed a motion, again
requesting copies of the 911 recordings. The court granted Defendant Lows motion for
discovery.
145. DDA Andrew Hall contacted the Trinidad Police Department regarding the
recordings and was informed the 911 recordings had been destroyed. At a hearing on December
5, 2011, the defense made an oral motion to dismiss lbr the prosecutors violation of Crirn. P.
16(f). The Court heard arguments from both sides and took the issue under advisement.
146. On December 16, 2011, Judge Billings issued an order sanctioning the
prosecution for violation of Crim P 16(I) The court ruled that failure to produce the 911 tapes
was a Crim. P. 16(I) violation. Because it appeared the 911 tapes may have been exculpatory
evidence for defendant, the court determined the prosecutors failure was also a Due Process
violation. The court ordered the prosecution could not make any reference at trial to the 911
calls made to or from dispatch personnel, or to the contents ofthe 911 calls.
147. DDA Wasson and DDA Hall failed to make appropriate and timely disclosures of
the 911 recordings to the defendant in the Low case.
148. With regard to the conduct in the Low case, Respondent did not reasonably
supervise and train fonner DDA Wasson and DDA Hall.
149. By his failure to train and supervise his subordinate attorneys, Respondent
violated Cob. RPC 5.1(b).
People v. Boyd Gross, IOCR2S (in disciplinary complaint I3PDJO6S)
150. On April 26, 2010, DDA Wasson filed the Complaint and Information against
Boyd Gross alleging Mr. Gross had committed attempted murder, People v, Boyd Gross,
Huerfano County District Court, 1OCR2S (the Gross case).
151. Crim. P. 16(1)(b) (as published in 2010) required the District Attorneys Office
provide expert disclosures to the defendant no later than 30 days before trial. DDA Wasson
violated Crim. P. l6(1)(b) because he failed to provide the defense with the expert disclosure or
report of the prosecutions rebuttal expert. Due to a hung jury, the court declared a mistrial. The
court ordered a new trial in the Gross case.
152. On January 27, 2011, the defense filed a Motion and Demand for Sanctions for
Failure to Disclose Exculpatory Material and Failure to Provide Timely Discovery. DDA
Wasson admitted he violated discovery rules by failing to provide defense with the disclosure
and report ofthe prosecutions rebuttal expert who testified in the first trial.
153. On February 17, 2011, the court heard the motions and argument regarding DDA
Wassons failure. The court determined the prosecutors failure warranted a sanction. Judge
Appel determined the defense was prejudiced by not receiving the report. The court ordered that
17

in the upcoming trial, the defense would be given four extra peremptory challenges during jury
selection.
154. With regard to the conduct in the Gross case, Respondent failed to reasonably
-supervise-former-DDA- Wassons-performance-of-his duties-on behalf ofthe-People ofthe-Stat
of Colorado.
155. By his failure to train and supervise his subordinate attorneys, Respondent
violated Cob. RPC 5.1(b).
People v. AshleeDiliman, 11M533 (in disciplinary complaint 13PDJ065)
156. On December 28, 2011, DDA Hall filed the Complaint and Information against
defendant Dillman for child abuse, People v. Ashlee Diliman, Las Animas County Court,
1 1M533, (the Dill,nan case).
157. Respondent and his DDA did not request the following evidence from law
enforcement or emergency dispatch until late June 2012:
a) Copy of recording of 911 phone call made on December 12, 2011;
b) Copy of dispatch logs from December 12, 2011;
c) Copy of recording of 911 phone call made on December 13, 2011; and
d) Copy of dispatch logs from December 13, 2011.

158. Contrary to the requirements of Crim. P. 16(1) and Crim. P. 16(V), the above
listed evidence was not made available by the D.A.s office to the defense until July 2, 2012.
159. DDA Hall violated Crim. P. 16(1)(b)(3) because DDA Hall did not provide birth
dates and/or criminal histories (impeachment information) on the prosecutions witnesses Cassie
Dixon and Jamie Pike, until less than 30 days prior to trial.
160. DDA Halls delay in producing impeachment information regarding prosecution
witnesses was a violation of Crim. P. 16(1)(b)(3).
161. On July 2, 2012, the Court held a hearing and addressed defense counsels
Amended Motion for Preservation and Production of Specific Discovery and Impeachment
Information. The court granted the defenses Amended Motion and ordered that DDA Hall
must produce the impeachment evidence immediately. The court also ordered that DDA Hall
must provide the prosecutions expert disclosures to the defense no later than July 5, 2012.
162. On July 30, 2012, DDA Hail still had not provided the defense with impeachment
information on prosecution witnesses Cassie Dixon and Janiie Pike.
163. DDA Hall also failed to file expert disclosures for experts Dr. Kevin McClintock,
and Dr. Barry Nelson.

18

164. The defense filed a Request for Sanctions Barring Testimony of Prosecution
Witnesses Cassie Dixon and Jamie Pike; and Request for Sanctions Barring Testimony of
Prosecution Experts Dr. Kevin McClintock, and Dr. Barry Nelson.

Apre-trial-readiness -confncehad-beensctforsmne-dayJu1y30; 2012:


Prior to any discussion in court regarding the Motions for Sanctions, DDA Hall made an oral
motion to dismiss the case against Ms. Dilhnan. The court granted DDA Halls oral motion to
dismiss the case.
-

166. DDA 1-Jail failed to make appropriate and timely expert disclosures to the defense
in the Dillman case, including witness impeachment information (criminal histories) and the
prosecutions expert disclosures.
167. With regard to the conduct in the Dillman case, Respondent failed to reasonably
supervise and train DDA Hall.
168. By his failure to train and supervise his subordinate attorneys, Respondent
violated Cob. RPC 5.1(b).
People v. Patrick Salazar, 11M302 (in disciplinary complaint 13PDJO6S)
169. July 25, 2011, DDA Hall filed a Complaint against defendant Salazar for
domestic violence, assault, child abuse, and driving without a license, People v. Patrick Salazar,
Las Animas County Court, 1 1M302 (the Salazar case).
170. The police report provided to the D.A.s office noted the arrest of the defendant
took place in the parking lot of a Walmart. Police reports noted that several people in a nearby
restaurant witnessed the alleged domestic violence and called 911 and reported what they were
witnessing.
171. Pursuant to C.R.S.
24.4.1-302 et seq, and C.R.S. 24-4.1-303 et seq, the
Victims Rights Act, DDA Hall was to contact the victim where practicable before dismissing
the Salazar case.
172.

DDA Hall did not speak to the alleged victim in the Salazar case.

173. Respondent did not train DDA Hall regarding compliance with the Victims
Rights Act. Respondent did not reasonably supervise DDA Hall to determine if DDA Hall was
complying with the Victims Rights Act.
174. Crim. P. 16(1)(a)(1)(V) and 16(I)(a)(1) (VII) required DDA Hall to make
available to the defense a list of witnesses, as well as the criminal histories of all prosecution
witnesses. DDA Hall failed to provide the defense a list ofwitnesses.
175. On December 2, 2011, defense filed a Motion for Preservation and Production of
Specific Discovery and Impeachment Information. The motion specifically requested the
19

criminal histories of all prosecution witnesses. The Court granted that motion on December 6,
2011.
176. Trial was set for March 26, 2012. DDA Hall issued subpoenas to several
witnesses-reqiurmg their-appearance at-trial-to testifrm-the Salazarcase DDAHall-failed to
obtain or disclose witness criminal histories for the witnesses he had subpoenaed for trial.
177 On March 14, 2012, DDA Hall filed an Amended Motion to Dismiss stating that
the prosecution would not be able to make a prima facie case for the charges listed.
178. DDA Hall violated Cnn. P. 16(I)(a)(1)(V) and 16(I)(a)(l)(Vfl) with regard to
disclosure of impeachment information on prosecution witnesses DDA Hall violated the courts
order with regard to disclosure ofimpeachment information on prosecution witnesses.
179.
Salazar.

The court granted Halls Amended Motion to Dismiss the case against Mr.

180. The defense filed a motion for discovery and the court set a hearing on the motion
regarding discovery. DDA Hall disobeyed the courts orders regarding witness disclosures and
production ofcriminal histories for the prosecutions witnesses.
181. With regard to the conduct in the Salazar case, Respondent failed to reasonably
supervise and train DDA Hall.
182. By his failure to train and supervise his subordinate attorneys, Respondent
violated Cob. RPC 5.1(b).
People v. Mark Camp, 12M197 (in disciplinary complaint 13PDJ065)
183. On April 27, 2012, DDA Hall filed his Complaint and Information against Camp
for Assault in the Third Degree, People v. Mark Camp, Las Animas County Court, 12M197 (the
Camp case). On August 2, 2012, DDA Hall requested all recordings, phone calls, and 911 tapes
from the Trinidad Police Department. Hall did not request copies ofthe photos of the victim.
184. Pursuant to the Victims Rights Act, DDA Hail was to contact the victim where
practicable before dismissing the Camp case. It was DDA Halls policy not to speak personally
with any alleged domestic violence victims. DDA Hall did not speak to the alleged victim in the
Camp case.
185. Respondent did not train DDA Hall regarding compliance with the Victims
Rights Act. Respondent did not supervise DDA Hail to determine if DDA Hall was complying
with the Victims Rights Act.
186. Crim. P. 16(i)(b)(1) (as published in 2012) requires that DDA Hall make available
all photos to the defense within 20 days of Mr. Camps first appearance.

20

--

187. Crim. P. 16(1)(bX4) requires the prosecutor to ensure that a flow of information is
maintained between the investigative personnel and the prosecutors office, sufficient to place all
material and information relevant to the accused in the prosecutors possession.
188. Respondent-and Hall did-not-do so-and-did-not-request-copies-ofphotos-from-theTrinidad Police Department until more than four months after Mr. Camps first appearance in
court.
189. At a hearing on August 28, 2012, defense counsel noted the prosecutions failure
to comply with Crim. P. 16(1)(b)(1) mandatory automatic requirement to disclose the photos.
Judge Billings agreed with the defense and ordered DDA Hall to get the photos to defense
immediately. Hall promised the court he would do so.
190. On August 28, 2012, DDA Hall requested (for the first time) copies of all photos
and videos in evidence from the Tnmdad Police Department. On September 13,2012, DDA Hall
filed a Notice ofAdditional Discovery, informing defense that copies of one CD with photos was
available to defense counsel.
191.
On September 20, 2012, defense filed a Motion for Sanctions based on DDA
Halls violation of Rule 16. On September 24, 2012, Judge Billings held a hearing on the
Motion for Sanctions.
192. The court determined DDA Halls failure to comply with Rule 16(1)(b) in the
Camp case was a severe violation and ordered that the photos be excluded at trial.
193. On September 25, 2012, DDA Hall appeared for trial. Defense counsel, Ms.
Abudiab, and DDA Hall began jury selection and questioned potential jurors for approximately
seven minutes.
194. Judge Billings then realized he had failed to turn on the voice recorder and noted
that the parties would need to start over again so there would be a proper record of the
proceedings. DDA Hall then became upset and asked if the defense would agree to a mistrial.
195. Ms. Abudiab declined to agree to a mistrial. Hall then asked the court to dismiss
the case. The court granted Halls oral motion and dismissed the case against Mr. Camp. DDA
Hall did not contact the alleged victim before dismissing the Camp case.

196. The disclosure of evidence to the defense is a fundamental obligation of every


prosecutor under Crim. P. 16(1). DDA Hall failed to determine what evidence should be
disclosed to the defense during discovery in the Camp ease.
197. DDA Hall failed to ensure that a flow of information was maintained between the
investigative personnel and the prosecutors office, sufficient to place all material and
information relevant to the accused in the prosecutors possession. DDA Hall failed to timely
request photos listed in reports by law enforcement. DDA Hail failed to make appropriate and
timely disclosures of the photos to the defense in the Camp case. DDA Hall failed to contact the
21

alleged victim before dismissing the Camp case and thus failed to comply with the Victims
Rights Act.

-----

198. With regard to the above described conduct, Respondent failed to reasonably
---superve-and- i-DDA--Hal -Rspondent -failed-to-make -reasonable-efforts-to-ensure-that
Halls conduct conformed to the Rules of Professional Conduct
199. By his failure to train and supervise his subordinate attorneys, Respondent
violated Cob. RPC 5.1(b).
People v. B.S.., 12JD12 (in disciplinary complaint 13PDJ065)

200. On April 4, 2012, DDA Wiggins filed a Petition in Delinquency regarding


juvenile, B. S., related to the juveniles alleged felony intimidation of a witness or victim, People
v. B.S., Las Animas County District Court, 12JD12 (the B.S. case).
201. The juvenile was also involved in a companion case, 1231)1, for alleged
misdemeanor third degree assault. At a hearing on May 18, 2012, the court appointed a Guardian
AdLitem and ordered DDA Wiggins to provide all discovery to the Guardian Ad Litem.
202. Per Crirn. P. 16(1)(a)(1)(V) and 16(1)(a)(1)(VlI), DDA Wiggins was required to
provide the defense with a list of prosecution witnesses, as well as potential impeachment
infonnation, including any witness criminal history. DDA Wiggins failed to comply with the
Crim. P. 16(l)(a)(l)(V) and 16(I)(a)(l)(VTI) mandatory automatic disclosure requirements.
203. On May 21, 2012, the defense tiled a Motion for Preservation and Production of
Specific Discovery and impeachment Information. Judge Billings granted the Motion, which
specifically requested all prosecution witness impeachment information and witness criminal
histories.
204. On June 18, 2012, the defense flied a Motion for Sanctions, alleging that DDA
Wiggins failed to comply with Crim. P. 16(1)(a)(l)(V) and 16(1)(a)(1)(Vl1). The court set the
Motion for hearing to occur on June 21, 2012. On June 21, 2012, Respondent filed a Notice of
Additional Discovery, listing several items of evidence, including witness criminal histories, a
detailed CA]) (recorded communications) report, and a CD attached to the CAD report.
205. On June 21, 2012, before the court issued a ruling on the Motion for Sanctions,
the defense agreed to withdraw its Motion for Sanctions if DDA Wiggins agreed to dismiss case
12JD12 against defendant B.S. The defense then withdrew the Motion for Sanctions, and DDA
Wiggins dismissed the case against defendant B.S.
206. DDA Wiggins failed to detennine what evidence should be disclosed to the
defense during discovery in the B.S. case. DDA Wiggins failed to ensure that a flow of
information was maintained between the investigative personnel and the prosecutors office,
sufficient to place all material and information relevant to the accused in the prosecutors
possession.
22

207. DDA Wiggins failed to timely request prosecution witness names, addresses, and
criminal histories from law enforcement. DDA Wiggins failed to make appropriate and timely
disclosures to the defense in the B.S. case, including witness name and address information, and
---witness-impeachment informationsuch-as-criminal-histories-forthe-witnesses208.

DDA Wiggins failed to comply with the courts orders.

209. With regard to the conduct in the B.S. case, Respondent failed to reasonably
supervise and train DDA Wiggins.
210. By his failure to train and supervise his subordinate attorneys, Respondent
violated Cob. RPC 5.1(b).
People v. Harvey Quintana, 12M75 (in disciplinary complaint 13PDJ065)

211. On March 30, 2012, Respondents office filed the Peoples Complaint and
Information against Mr. Quintana, People v. Harvey Quintana, Huerfano County Court, l2M75
(the Quintana case).
212. On April 19, 2012, the defense filed a Motion for Discovery of Impeachment
Information. On June 13, 2012, all parties appeared for a jury trial. During jury selection, a
person in the gallery began shouting accusatory statements regarding the defendant and the court
therefore declared a mistrial.
213. Trial was reset for August 15, 2012. As the parties were leaving the courtroom,
the victim in the Quintana case approached DDA Wiggins. During the conversation, the victim
informed DDA Wiggins that she had been on cocaine at the time the defendant allegedly beat
her.
214. Per Crim. P. 16(1)(a)(2) the victims statement was information that tends to
negate the guilt of the accused as to the offense charged or would tend to reduce the punishment
therefor. DDA Wiggins failed to timely disclose the victims statement to the defense.
215. On August 15, 2012, all parties appeared for trial. During pre-trial discussion,
DDA Wiggins revealed to the court and the defense that the victim had made the statement
regarding cocaine use at the time of the alleged domestic violence.
216. Judge Billings ruled that the discovery violation was so severe that dismissal of
the case was the appropriate sanction. The court orally dismissed the case on the record.
217. DDA Wiggins failed to make appropriate and timely disclosures to the defendant
in the Quintana case, including the alleged victims statement which tends to negate the guilt of
the defendant.

23

218. DDA Wiggins failed to produce the victims statement in the Quintana case, until
two months after she received it, and thus failed to comply with the Crim. P. 16(1) and 16(V)
mandatory, automatic disclosure provisions.
the-court-to-prepare-for and-

--

appear for trial.


220. With regard to the conduct in the Quintana case, Respondent failed to reasonably
supervise and train DDA Wiggins.
221. By his hilure to train and supervise his subordinate attorneys, Respondent
violated Cob. RPC 5.1(b).
People v. J.M, 12JD27 (in disciplinary complaint 13PDJ065)
222. On May 30, 2012, DDA Wiggins flied a Petition for Delinquency on J. M.
alleging the juvenile engaged in disorderly conduct, People v. JM, Las Animas County District
Court, 12JD27 (the J.M. case).
223. Crim. P. 16Q)(b)(1) (as published in 2012) requires that DDA Wiggins provide
evidence, such as video, to the defense within 20 days of the juveniles first appearance. The
police report given to DDA Wiggins indicated a photo log was attached, but did not indicate
whether police had obtained a copy of the video of the fight. Neither Respondent, nor DDA
Wiggins asked law enforcement to obtain a copy of the video ofthe tight. As of July 22, 2012,
DDA Wiggins had failed to request a copy of the fight club video from law enforcement, and
failed to provide any copy of the video of the fight to the defense, in violation of the Crim. P.
I 6(f)(b)(1) mandatory automatic disclosure requirements.
224. On July 23, 2012, DDA Wiggins, for the first time, sent a letter to the Trinidad
Police Department requesting a copy of the video of the fight allegedly involving J.M.
221 DDA Wiggins failed to comply with Crim. P. 16(1)(b)(4) which required
prosecution to ensure that a flow of information is maintained between the investigative
personnel and the prosecutors office, sufficient to place all material and information relevant to
the accused in the prosecutors possession.
226. As a result of DDA Wigginss failure to obtain a copy of the video from law
enforcement, DDA Wiggins also failed to provide defense a copy of the video ofthe fight.
227. On August 31, 2012, all parties appeared for jury trial. DDA Wiggins stated on
the record that she had several witnesses to call, including three teachers and the principal from
J.M.s school, waiting outside the courtroom.
228. Defense counsel raised the discovery violation and stated that the defense never
received any video of the fight. Defense counsel asked that as a sanction, the video be excluded

24

and that no witness could testify regarding the video. The prosecutions witness testimony was
all based on their viewing ofthe fight club via video.
229.

Defense asked that all testimony based only on a viewing of the video also be

so she could dismiss her witnesses waiting outside. The court granted the request.
230. DDA Wiggins then re-entered the courtroom, and on the record requested that the
case against J.M. be dismissed. The court granted her request and dismissed the case.
231. DDA Wiggins failed to determine what evidence should be disclosed to the
defense during discovery in the JM case.
232. DDA Wiggins failed to ensure that a flow of information was maintained between
the investigative personnel and the prosecutors office, sufficient to place all material and
information relevant to the accused in the prosecutors possession. DDA Wiggins failed to
timely request a copy of the video of the fight club discussed in reports by law enforcement,
and relied on by the prosecutions witnesses.
233. DDA Wiggins failed to make appropriate and timely disclosures of the video to
the defense for the juvenile in the JM case.
234. With regard to the conduct in the .JM case, Respondent failed to reasonably
supervise and train DDA Wiggins.
235. By his failure to train and supervise his subordinate attorneys, Respondent
violated Cob. RPC 5.1(b).
People v. Gary Lensky, 12M254 (in disciplinary complaint 13PDJ065)

236. On October 17, 2012, DDA Wiggins filed a Complaint against Mr. Lensky for
alleged Third Degree Assault, Menacing, and Harassment, People v. Gary Lensky, Huerfano
County Court, 12M254 (the Lensky case.
237. Mr. Lensky represented himself, pro Se. Reports from law enforcement provided
to the prosecution indicated that the alleged assault had been recorded by another neighbor with
a camera phone.
238. On October 19, 2012, pro se Defendant Mr. Lensky made his first appearance in
court. Crim. P. 16([)(aXl)(IV) and Crim. P. 16(1)(b)(l) (as amended after July 1, 2012) required
the prosecutor to make available to the deinse all books, papers, documents, photographs or
tangible objects held as evidence in connection with the case, within 21 days of the defendants
first appearance.

25

239. Crim. P. 1 6QXbX4) requires the prosecutor to ensure that a flow of information is
maintained between the investigative personnel and Respondents office, sufficient to place all
material and information relevant to the accused in the prosecutors possession.
240.-DDAiggins-faD d-to-ensure-that-a-fiowf-infoation-wa&maintainedbetween-----the investigative personnel and the prosecutors office sufficient to place all material and
information relevant to the accused in the prosecutors possession.
241. The Lensky case was set for a juiy trial, to occur on January 22, 2013. DDA
Wiggins failed to obtain a complete copy of all law enforcement reports related to the Lensky
matter until January 16, 2013 (seven days before trial).
242. The final pm-trial motions heang occurred on January 16, 2013. DDA Wiggins
appeared for the pre-trial motions hearing and then filed a motion to dismiss the case against Mr.
Lensky because, The District Attorneys Office was unable to provide the police reports to Mr.
Lensky until January 15, 2013, 89 days after Mr. Lenskys first appearance, and 43 days after
Mr. Lenslcy requested discovery in his case.
243.

The Court granted her request and dismissed the case.

244. DDA Wiggins failed to determine what evidence should be disclosed to the
defendant during discovery in the Lensky case. DDA Wiggins failed to make appropriate and
timely disclosures to the defendant in the Lensky case, including complete copies of all law
enforcement reports.
245. With regard to the conduct in the Lensliy case, Respondent did not reasonably
supervise and train DDA Wiggins.

246. By his failure to train and supervise his subordinate attorneys, Respondent
violated Cob. RPC 5.1(b).
People v. Jeremiah D. Hall, 13CR42 (in disciplinary complaint 14PDJ064)
247. On June 5, 2013, Respondents Assistant District Attorney (ADA), Andrew
Hall, filed a complaint and information charging defendant Jeremiah Hall with theft, C.R.S. 18-.
4-401(1), (2)(c) (a class four felony), People i Jeremiah D. Hall, Huerfano County District
Court, 1 3CR42 (the JeremIah Hall case). The defendant picked up 13 pages of discovery on
June 5, 2013, including an affidavit by a Huerfano County sheriffs deputy regarding the items
stolen and the value of items, as reported by the victim.
248. The defendants attorney filed a motion for bill of particulars on July 5, 2013,
which requested more specific information related to the items stolen. The victim later called
Respondents office and provided names ofwitnesses who could confirm the theft of the items at
issue.

26

ADA Hall filed a motion to dismiss without prejudice on September 26, 2013
249.
because, the evidence at this time is insufficient to prove guilt beyond a reasonable doubt.
250. Respondents ADA dismissed the Jeremiah Hall case before responding to law
-enforcemenrto-obtain-relevantevidence-regarding-theaIleg-ed-thft251. ADA Hall failed to comply with Crim. P. 16(1)(b)(4) which required prosecution
to ensure that a flow of information is maintained between the investigative personnel and the
prosecutors office, sufficient to place all material and information relevant to the accused in the
prosecutors possession.
With regard to the above described conduct, Respondent did not reasonably
252.
supervise and train ADA Hall. Respondent did not make reasonable efforts to ensure that ADA
Halls conduct conformed to the Rules ofProfessional Conduct.
253. By his failure to train and supervise his subordinate attorneys, Respondent
violated Cob. RPC 5.1(b).

254. Through Respondents conduct described above, Respondent has engaged in


conduct constituting grounds for the imposition of discipline pursuant to C.R.C.?. 251.5.
Respondent has violated Cob. RPC 1.3, which requires a lawyer to act with reasonable diligence
and promptness in representing a client; 5.1(b), which requires that a supervising lawyer make
reasonable efforts to ensure that subordinate lawyers conform to the Rules of Professional
Conduct; and 8.4(d), which prohibits a lawyer from engaging in conduct that is prejudicial to the
administration of justice. None of Respondents violations of Cob. RPC 8.4(d), were done
willfully or intentionally.
255. Counts two, three, four, five, eight, nine, ten, thirteen, fourteen, fifteen, eighteen,
nineteen, twenty, twenty-two, twenty-three, twenty-four, twenty-five, twenty-six, and twentyeight, in case 13PD3065, and Counts one, three, four, and five in case 14PDJ064 also charge
Respondent with violation(s) of Cob. RPC 1.1; 3.4(a); 3.4(c); 3.4(d); 3.8(d); and 5. 1(c)( 1). As a
compromise and as part of this Stipulation and agreement containing Respondents conditional
admission of misconduct, Complainant moves that these alleged violations ofthe Colorado Rules
ofProfessional Conduct be dismissed.
256. Pursuant to C.R.C.?. 251.32, Respondent agrees to pay costs in the amount of
$23,043.65 (a copy of the statement of costs is attached hereto as Exhibit C) incurred in
conjunction with this matter within thirty-five (35) days after acceptance of the Stipulation by the
Presiding Disciplinary Judge, made payable to Colorado Supreme Court Attorney Regulation
Offices. Respondent agrees that statutory interest shall accrue from the date that the Presiding
Disciplinary Judge accepts this Stipulation. Should Respondent fail to make payment of the
aforementioned costs and interest within thirty-five (35) days, Respondent specifically agrees to
be responsible for all additional costs and expenses, such as reasonable attorney fees and costs of
collection incurred by Complainant in collecting the above stated amount. Complainant may
amend the amount of the judgment for the additional costs and expenses by providing a motion

27

and bill of costs to the Presiding Disciplinary Judge, which identifies this paragraph of the
Stipulation and Respondents default on the payment.
257, This Stipulation represents a settlement and compromise of the specific claims
-and defenses pled-by-the-parties,-and itshall-have-no-meanmg-or-effect--m any-other lawyerregulation case involving another respondent attorney.

258. This Stipulation is premised and conditioned upon acceptance of the same by the
Presiding Disciplinary Judge. If for any reason the Stipulation is not accepted without changes
or modification, then the admissions, confessions, and Stipulations made by Respondent will be
of no effect. Either party will have the opportunity to accept or reject any modification. If either
party rejects the modification, then the parties shall be entitled to a full evidentiary hearing; and
no confession, Stipulation, or other statement made by Respondent in conjunction with this offer
to accept discipline of a six-month suspension, stayed upon successful completion of a 23-month
probation, and other conditions, may be subsequently used. Ifthe Stipulation is rejected, then the
matter will be heard and considered pursuant to C.R.C.P. 251.18.
259. The Office of Attorney Regulation Counsel has notified or will notify shortly after
the parties sign this agreement, the complaining witnesses in the matters of the proposed
disposition.

260. Respondents counsel, Alexander R Rothrock, hereby authorizes Respondent,


Francisco E. Ruybalid IV, and the non-lawyer individual in the Office of Attorney Regulation
Counsel who is responsible for monitoring the conditions set forth herein to communicate
directly concerning scheduling and administrative issues or questions. Respondents counsel
will be contacted concerning any substantive issue which may arise.
261. If Respondent violates any Rules of Professional Conduct, or any provision of this
Stipulation during his 23-month probation, the six month suspension will no longer be stayed.
Respondent will be suspended and must petition for reinstatement pursuant to C.R.C.P.
251 .29(c) and (d). The parties stipulate that as part of any reinstatement hearing, Respondent
will not object or raise any defense to the condition of a practice audit and monitor. Specifically,
the condition(s) are as follows:
If Respondent is reinstated and returns to practice, he shall have a practice audit, and a
practice monitor for a period of two years after he resumes his practice. The practice
monitoring shall be in accord with the attached practice monitoring agreement, which is
incorporated into and made a part of this Stipulation and agreement. The parties stipulate
that these are material terms and conditions of this Stipulation and agreement, and
complainant would not have entered into this Stipulation and agreement unless
Respondent agreed not to object to these terms. If Respondent objects to these conditions
at the reinstatement hearing, the parties agree that this is a violation of the terms and
conditions of the Stipulation and agreement.
PRIOR DISCIPLINE
28

262.

None.
ANALYSIS OF DISCIPLINE

------

--261-- --Pursuant--to American Bar-Association-Standards for-Imposing-L yer-Sanctions


1991 and Supp. 1992 (ABA Standards), 3.0, the Court should consider the following factors
generally:

--

a.

The duty violated: Respondents misconduct violated duties owed to the legal
system, the profession and the public.

b.

The lawyers mental state: Respondents mental state varied among the cases,
from negligent, to reckless, to knowing.

c.

The actual or potential injury caused by the lawyers misconduct: The harm that
resulted from Respondents misconduct is both actual and potential. His
misconduct caused actual harm to the administration ofjustice.
The potential injury resulting from the misconduct is that defendants, possibly
guilty of crimes charged against them, received no punishment and were not
deterred from committing similar crimes in the future.

d.

The existence of aggravating or mitigating factors: Factors in aggravation which


are present include: a pattern of misconduct; multiple offenses; and substantial
experience in the practice of law, ABA Standards 9.22(c), (d), and (i).
Factors in mitigation include: absence of prior disciplinary record, absence of a
dishonest or selfish motive, full and free disclosure to disciplinary board and
cooperative attitude toward proceedings, ABA Standards 9.32(a), (1,), (e),.

264. Pursuant to ABA Standards 5.22, 5.23, and 7.2, suspension is appropriate.
The ABA Standards provide guiding authority for selecting the appropriate sanction to impose
for lawyer misconduct.
ABA Standard
officials, provides:

5.22, which applies to misconduct by lawyers who serve as public

Suspension is generally appropriate when a lawyer in an official or governmental


position knowingly fails to follow proper procedures or rules, and causes injury or
potential injury to a party or to the integrity of the legal process.
ABA Standard
officials, provides:

5.23, which applies to misconduct by lawyers who serve as public

Reprimand is generally appropriate when a lawyer in an official or governmental


position negligently falls to follow proper procedures or rules, and causes injury
or potential injury to a party or to the integrity ofthe legal process.

29

ABA Standard
provides:

7.2 which applies to all lawyers who violate duties to the profession,

Suspension is generally appropriate when a lawyer knowingly engages in


_conductthaLisvio1ationof-adutyowedas-aprofessional,-and-causesinjury or potential injury to a client, the public, or the legal system.

-----------

265. in support of the sanction stipulated by the parties in this matter, the following
cases are similar and support the agreed upon sanction. Some of the cases below are opinions
and findings of a hearing board, or discipline imposed by the Presiding Disciplinary Judge after a
accepting a Conditional Admission of Misconduct. The parties cite these cases fully cognizant
of the Supreme Courts language in In re Roose, 63 P.3d 43, 47 (Cob. 2003) in which Justice
Coats wrote for the Court,
[E]very case proceeds before a different panel and the outcome of that case cannot
logically be controlled by cases decided by a previous Hearing Board. On the other hand,
opinions issued by the Hearing Boards are officially published for the benefit of the
profession in order to advise and instruct practicing attorneys of conduct that has resulted
in discipline, the basis for and severity of the discipline, and the reasoning of the Hearing
Board. In addition, the opinions of the Hearing Boards serve to instruct and guide, but not
bind, future Hearings Boards in their decisions; and serve to inform the public of the
proceedings.
...

The rationale of the Hearing Board in a particular case can neither serve as stare decisis
precedent for future cases nor constitute the law of the jurisdiction. This court, and only
this court, has the power to determine the law of this jurisdiction as applied in disciplinary
proceedings. In the event a Hearing Board decision is not appealed to us, or for any other
reason we do not address a legal interpretation of the board, this courts silence cannot be
understood as an implicit adoption of the Hearing Boards conclusions of law so as to be
entitled to stare decisis effect in future proceedings.
Prior decisions of hearing boards and the PDJ are not cited herein in any way as being binding on
the PDJ; rather they are cited as being helpful to determine the proportionality of the agreed upon
sanction in this case. And, Justice Coats made an additional point in Roose:
The purpose behind the creation of these [ABA] Standards [for Imposing Lawyer
Sanctions] was to enhance the consistency of sanctions imposed in attorney disciplinary
proceedings. See ABA Standards, Preface.
Id
Consistency is important in attorney discipline matters and it is important to gauge
consistency by what both the PDJ and the Office of Attorney Regulation have done in the past.
For that reason and to ensure proportionality in the sanction agreed upon in this matter, the
parties cite the following cases.
A prosecutors duty under Crim P. 16(1) is to disclose material information in the
possession or control of persons who have participated in the investigation or evaluation of the
30

------

case and who either regularly report or with reference to the particular case have reported to the
prosecutors office. People v. District Court, 793 P.2d 163, 166 (Cob. 1990). Further, a
prosecutor must take steps to ensure that a flow of infonnation is maintained between
investigative personnel and her office sufficient to place within her possession or control all
mformation relevant-to the -accusedandtheof nsechargd z(dThep ectttortiisF
promulgate and enforce rigorous and systematic procedures with the purpose of preservmg all
discoverable evidence gathered in the course of a criminal investigation. Id. Even though a
prosecutor may have no actual knowledge of evidence that was not disclosed, that is not a
defense to a discovery violation, but is relevant to a trial courts determination of a remedy in a
criminal trial. Id.
The Supreme Court noted in People v. Bloom, 577 P.2d 288, FN 6 (Cob. 1978):
Nonetheless we stress that the district attorney must make diligent
efforts to find requested documents of which he is not aware and
must ensure that a flow of information is maintained between his
office and his investigating agencies.
As stated in People v. Perryman, 859 P.2d 263, 271 (Cob. App. 1993), a prosecutors
duty to disclose extends to material in possession or control of those reporting to the prosecutor,
and prosecutors are required to maintain conditions adequate to obtain such material from
various investigative personnel, including police officers. See Chambers v. People, 682 P.2d
1173 (Cob. 1984); People v. Cevallos-Acosta, 14 P.3d 116, 125 (Cob. App. 2005)
(prosecutors disclosure obligation extends to material and information in the possession or
control of law enforcement).
The following cases are relevant to Respondents failure to follow discovery rules and
court orders. See People v. Rosenfel4, 180 P.3d 448,460 (Cob. O.P.D.J. 2007) (lawyer
suspended six months for discovery violations and failing to follow court order); People v. Sega!,
40 P,3d 852 (Cob. OP.D.J. 2002) (18-month suspension for attorneys five instances of neglect,
two instances of falling to communicate with clients, and engaging in conduct prejudicial to the
administration ofjustice, among other rule violations); Committee on Professional Ethics v.
Ramey, 512 N.W.2d 569, 572 (Iowa 1994)(indeflnitely suspending prosecutor for failing to
disclose police reports to the defense by arguing that the reports were not material and making a
material misrepresentation to the court concerning evidence); Office ofDisciplinary Counsel v.
Jones, No. 9232, slip op. at 46 (Ohio Misc. Dec. 4, 1992), 66 Ohio St.3d 369,613 N,E.2d 178,
178 (l993Xsuspending the prosecutor for six months for knowingly failing to disclose during the
course of a trial the existence of evidence that tended to negate guilt, mitigate the degree of the
offense or reduce the punishment).
Colorado precedent also suggests that a sanction of suspension is warranted. In re
Bobbin 980 P.2d 538,540 (Colo.l999Xcriminal defense attorney suspended for one year and
one day for failing in two separate appeals to file opening brief; causing dismissal of clients
appeals, and misrepresenting to trial court the reasons for clients failure to appear at sentencing
hearings).

31

The following cases are relevant to Respondents failures to supervise his subordinate
attorneys. The cases suggest suspension is warranted. See Matter of Yacavino, 494 Aid 801,
803 (NJ. 1985) (lawyer suspended for three years, in part due to his failure to supervise a new
attorney over a period of one year); Attorney Grievance Commn of Maryland v. Kimmel, 955
--&-2d--269-294& 2008-)-(lawyer
than 90 days after the effective date of the suspension, based on failure to supervise young
lawyer and failure to implement procedures or mechanisms to supervise subordinate lawyer); In
re Phillips, 244 P.3d 549, 557 (Ariz. 2010) (lawyer suspended for six months for his failure to
supervise subordinate lawyers); In re Trahant, 108 So. 3d 67, 76 (La. 2012), rehg denied (Jan.
25, 2013) (lawyer suspended for six months in part due to his failure to supervise subordinate
lawyers in his office).
266.
Private attorneys have received sanctions more severe than a six-month stayed
suspension, for conduct similar to Respondents conduct. In Respondents cases, his conduct
was not corrected by the judges sanction orders. Considering all of the factors described above,
as applied to this case, a six-month suspension, all stayed upon successful completion of a
twenty-three month probation, with conditions including a practice audit and monitor, ethics
school, and payment of costs, is the appropriate sanction.
Respondent meets the eligibility requirements for probation set forth in C.R.C.P. 251.7(a).
CONDITIONS
267. Probation. The parties stipulate that Respondent is eligible for probation
pursuant to C.R.C.P. 25 1.7(a). Successful completion of all these terms shall stay the imposition
of the six month suspension.

a. Respondent shall be on probation for a 23-month period of time.


b. Mandatory Rule Condition. During the period of probation, Respondent shall
not engage in any further violation of the Colorado Rules of Professional
Conduct. See C.R.C.P. 251.7(b) (The conditions [of probation]... shall
include no further violations of the Colorado Rules of Professional Conduct).
c. Respondent shall attend and successfully pass the one-day ethics school
sponsored by the Office of Attorney Regulation Counsel within one year of the
date this Stipulation is approved. Respondent shall register and pay the costs
of ethics school within thirty-five (35) days of the date this Stipulation is
approved. Attendance at ethics school will count as 8 general CLE credits,
including 7 ethics credits. Respondent may obtain the registration form for the
ethics school online at w v
Ethics School.
Instructions for registering are on the registration form.
d. Respondent shall abide by the practice audit and monitoring conditions
outlined in Exhibit D, attached hereto, for so long as Respondent is a District
Attorney.
32

Respondent shall also be responsible for all costs of evaluation, and supervision incurred as
part of any conditIon of this probation. Failure to pay these costs prior to termination of
probation shall constitute a violation of the probation.
--

268. Violation of Conditions. If, during the period of probation, the Office of
Attorney Regulation Counsel receives information that any condition may have been violated,
the Regulation Counsel may file a motion with the Presiding Disciplinaiy Judge speczfrmg the
alleged violation and seeking an order that requires the attorney to show cause why the stay
should not be lifted and the sanction activated for violation of the condition. See C.R.C.?.
251.7(e). The filing of such a motion shall toll any period of suspension and probation until final
action Id Any hearing shall be held pursuant to C R C.P 251 7(e) When, in a revocation
hearing, the alleged violation of a condition is Respondents failure to pay restitution or costs, the
evidence of the failure to pay shall constitute prima fade evidence of a violation. Id If
Respondents probation is revoked and the balance of the suspension is activated, the
Respondent shall be required to file a petition for reinstatement of hislher license to practice law
and prove a case for reinstatement pursuant to C.R.C.?. 251.29 (c) and (d).
269. Successful Completion of Conditions. Within twenty-eight (28) days and no
less than fourteen (14) days prior to the expiration of the period of probation, Respondent shall
file an affidavit with the Regulation Counsel stating that Respondent has complied with all terms
of probation and shall file with the Presiding Disciplinary Judge notice and a copy of such
affidavit and application for an order showmg successful completion of the period of probation
See C.R.C.P. 251.7(f). Upon receipt of this notice and absent objection from the Regulation
Counsel, the Presiding Disciplinary Judge shall issue an order showing that the period of
probation was successfully completed. Id. The order shall become effective upon the expiration
ofthe period ofprobation. Id.
RECOMMENDATION FOR AND CONSENT TO DISCIPLINE
Based on the foregoing, the parties hereto recommend that a six-month suspension with
the requirement of reinstatement pursuant to C.R.C.P. 25 1.29(c) and (d), all stayed upon
successful completion of a twenty-three month probation, with conditions as described above, be
imposed upon Respondent. Respondent consents to the imposition of discipline of a six month
suspension, stayed upon successful completion of a twenty-three month probation, with
conditions including a practice audit and monitor, ethics school, and payment of costs. The
parties request that the Presiding Disciplinary Judge order that the effective date of such
discipline be immediate,
Francisco E. Ruybalid IV, Respondent; Alexander R. Rothrock, attorney for
Respondent; and Erin Robson Kristofco, attorney for the Complainant, acknowledge by signing
this document that they have read and reviewed the above and request the Presiding Disciplinary
Judge to accept the Stipulation as set forth above.

33

Francisco E. RuybalidJV
200 E. First Si. #302
-

----

Telephone: (719) 846-9224


Respondent

STATE OF COLORADO
)ss:
COUNTY OFShM,4S-)
Subscribed and sworn to beforerne this
the Respondent.

2/

day of January. 2015, by

Witness my hand and official seal.


My commission expires:

_L_Q
4
_JL

rj

ILL444.Ltki
Notary Public

Alexander R. Rothrock, #21201


Sara Van Deusen, #38735
Burns Figa & Will PC.
6400 S. Fiddlers Green Cir.. Suite 1000
Greenwood Village, CO 80111
Telephone: 303-796-2626
Attorney for the Respondent

Erin ft. Kristofco, #33100


Assistant Regulation Counsel
1300 Broadway, Suite 500
Denver, CO 80203
Telephone: (303) 928-791 1
Attorney for the Complainani

34

--

SUPREME COURT, STATE OF COLORADO


ORIGINAL PROCEEDING IN ISCIPLINE BEFORE
1PRESIDING DISCIPLINARY JUDGE
1300 Broadway, Suite 250
Denver, Colorado 80203

1IUED
JUN 1 22014
PRESIDING DISCIPLINARY JUDGE
SUPREME COURT OF COLORADO

Complainant:
THE PEOPLE OF THE STATE OF COLORADO

A COURT USE
ONLY A

Respondent:
FRANCISCO E. RUYBALID W, #18448

Case Number: 13PDJ065

Erin Robson Kristofco, #33100


Assistant Regulation Counsel
James C. Coyle, #14970
Regulation Counsel
Attorneys for Complainant
1300 Broadway, Suite 500
Denver, Colorado 80203
Telephone: (303) 928-7911
Fax No.: (303) 501-1141
Email: eJcristofco@csc.state.co.us

SECOND AMENDED COMPLAI]4T


THIS SECOND AMENDED COMPLAINT is filed purs
uant to the authority of
C.R.C.P. 251.9 through 251.14, and it is alleged as follows:
Jurisdiction
1. Respondent has taken and subscribed the oath of adm
ission, was admitted to
the bar of this Court on. April 27, 1989, and is registered upon
the official records of this
Court, registration no. 18448. He is subject to the juris
diction of this Court in these
disciplinary proceedings. Respondents registered busi
ness address is 200 B. First St.
#302, Trinidad, CO 81082.

._A.
S

General Allegations
2. During all times relevant to the matters pled below, Respondent was and is the
elected District Attorney for the Thd Judicial District which inchades Las Animas
dIanoCounty.

People v. ScotiA. Kibitt, IICRI9S


3. On December 13, 2011, Respondent received a Colorado Bureau of
Investigation (CBI) Report of a homicide.
4. On December 20, 2011, Respondent ified the Peoples Complaint and
Information, People v. Scott A. Kibitt, Las Aninias County District Court, 1 1CR198 (fthe
Kibitt case), charging Scott Allen Kibitt with Second Degree Murder, Heat of Passion,
and Possession of a Weapon by a Previous Offender.
5. Crim. P. 16(1)(a)(1)(1V) and Crim. P. 16(I)(b)(1) (as published in 2011)
required the prosecutor to produce to the defense all books, papers, documents,
photographs or tangible objects held as evidence in connection with the case, within 20
clays of the defendants first appearance.

6. A, photo, video, or recording of a 911 call is a tangible object held as evidence.


7. The Public Defender, Patrick McCarville, filed certain discovery Motions. The
court held a hearing on February 15, 2012, during which the court ordered that
Respondent provide the defense with notice no less than 72 hours prior to any ballistic or
other scientific expert testing conducted by the CBI in the KibitS case.
8. Respondent was present for the entire hearing on February 15, 2012.
9. On April 24, 2012, Respondent sent a letter to Sergeant Santistevan of the Las
Animas County Sheriffs Office, wherein Respondent requested that the Sheriffs Office
expeditiously send the gun and other evidence including gunshot residue receptacles,
blood samples, and shell casings to the CBI for laboratory and forensic testing.
10. The April 24, 2012 letter from Respondent to Sergeant Santistevan does not
request that the Sheriffs Office or the CBI provide any prior notice of testing, nor does it
mention the courts order requiring that the defense be given 72 hours notice prior to any
testing.
11. Respondent received three notices that consumptive testing was about to take
place on the evidence in the Kibitt case.

12. Respondent received a copy of a letter dated May 4, 2012, from Sergeant
Santistevan to CBI requesting forensic testing on the Kibitt case evidence.
13. -Respondent-received-a-copy-ofthe GBI-evidence-chain-of-custodyform fllled
out by Sergeant Santistevan and the CBI.
14. On May 17, 2012, Respondent received a report from Sergeant Santistevan
which stated that evidence was sent to the CBI on May 4, and that the CBI had thereafter
asked Santistevan to collect saliva and blood samples from Scott Kibitt for testing.
15. The May 17, 2012 report also indicated the CBI would be doing testing on the

firearm.

16. Respondent did not contact either the Sheriffs office or the CBI to notify them
of the courts order that defense counsel receive 72 hours notice prior to any testing.
17. The Public Defender filed a motion for sanctions against Respondent for
valious discovery violations in the Kibitt case.
18. At a hearing on May 30, 2012, the court again raised the issue of CBI forensic
testing and the fact that the court had already granted defendants motion requesting 72
hours notice prior to any testing.
19. Respondent admitted on the record: I think I forgot about the 72 hours..
20. The court specifically recommended that Respondent call the CBI again to tell
them about the courts order.
21. Respondent stated to the court that he would do so.
22. Respondent then agreed on the record, Okay. All right. Well whenever
theyre going to do the test, Ill give [public defender] 72 hours notice.
23. On May 30, 2012, Respondent called a CBI employee, Sean West, regarding
the testing in the Kibitt case. Respondent made no mention to Mr. West of the order for
72 hours notice prior to testing.
24. Respondents conversation with Mr. West was only about the extension of the
trial date to October 15, 2012.
25. Respondent told Mr. West that he wouldnt need the Kibitt testing results
until
September 15, 2012.

26 O
an attache n June 6, 2012,
Res
d fax from
the CBI. pondent received
a report f
rom Serg
27 TheJ
eant San
une6, 2
eviden
tistevan
012 repo
ce in its p
with
rt and at
ossession
tached f
for comp
ax s
letion of
analysis. tated that the C
28. Resp
BI had t
onden
the court
he Kzbit
s order fo t did not contact
t
r 72 hour
t
h
e
CBI or t
s notice t
h
eS
o the def
29. On Ju
ense prio heriffs Office to
n
r to any t
e2
notify th
stating th
esting.
em of
at the CB 5, 2012, Respon
dent rece
I weapon
ive
testing re
sults rega d a report from S
30. The
rding the
h
CBI wea
Kibitt ca eriff Officer Na
pon testi
varette
s
e
had been
ng report
r
e
c
i
s
e
i
31. R
dated Jun
ved.
e 21.
containin espondent recei
v
g the resu
lts of blo ed a CBI labora
od and st
ain testin tory testing repo
32. The C
g perform
rt
BI testing
ed on Mr dated July 16,
results w
. Kibitt s
2012,
ere excul
gun.
33. Respo
patory ev
nde
idence.
of the for
ensic tes nt stated to Offic
ting desc
the defen
ribed in e of Attorney Re
se.
the prece
g
ding sect ulation Investig
at
ion were
34. Rega
an evidea ors, the results
r
d
tiary triu
ing
Regulatio
mph for
n Investi the CBI testing
gators,
supporte
r
e
s
u
lts,
the conc
d the defe
lusions o Respondent stat
nse.
ed
f the pros
ecutions to Office of A
35. On A
ttorney
forensics
ugust 15
which in
l
a
b
, 2
[1 strongly
cluded th
e results 012, Responden
of the CB
t
I testing. filed a Notice
36. At a
of Addit
hearing
ional D
motion f
o
iscovery,
n Augus
or sanctio
t
22, 2012
ns agains
bad viola
, th
tR
ted the c
ourts or espondent for d e Public Defend
testing.
is
der by f
e
ailing to covery violation r made a secon
s,
d,
give the
defense noting that Resp oral
37. The c
o
7
n
2 hours
ourt gra
notice p dent
shortly.
nted the
r
i
or to
motion,
stating th
e sanctio
ns order
38. On O
ctober 16
would b
sanctions
, 2012, t
e issued
. The co
h
e court is
urt found
orders, a
s
ued
nd
s
The cour determined ther everal violation an order grantin
g
s
e had be
ts sancti
ons inclu
en will of Crina. P. 16, the defense mot
ded:
ful misco
io
violation
nduct by
s of the n for
c
the pros
ecutors ourts
office.
4

a) All results of scientific testing shall be excluded from admission at


trial. Additionally, no witness shall be allowed to testify in regards
to the testing.
b)Thetreesseswhcli[publicdefender]alleges- rnay--have-----criminal convictions are barred from testifying.
c) Mr. Ruybalid may not admit any exhibits that were not tendered to
[public defender] 30 days prior to trial.
d) Mr. Ruybalid may not call expert witnesses unless he provided the
information ordered by this Court on May I, 2012.
e) [Public Defender] may have an extra 4 peremptory challenges.
39. Crim. P. 16(lXb)(4) requires Respondent to ensure that a flow of information
is
maintained between the investigative personnel and Respondents office, suffici
ent to
place all material and information relevant to the accused in. Respondents posses
sion.
40. Respondent failed to provide the defense with his experts curricula vitae,
as
required by the district courts order.
41. On October 16, 2012, Respondent filed a motion to dismiss the case agains
t
Scott A. Kibitt.
42. Following the courts October 16, 2012, order finding willful miscon
duct by
the prosecutors office, Respondent failed to institute any reform of office
policies or
procedures to remedy the breaches of Crim. P 16(I) that occurred during the Kibitt
case.
CLAIM I
[Failure to Provide Competent Representation to a Client Cob.
RPC 1.1]
-

43. Paragraphs 1 through 42 are incorporated herein as if fully set forth.


44. Cob. RPC 1.1 states that competent representation require
s the legal
knowledge, skill, thoroughness and preparation reasonably necess
ary for the
representation.
45. Respondent represented the People of the State of Colorado
in all cases he
handled as District Attorney.

46. Respondent failed to properly and timely make disclosures to


the defense,
including scientific testing results, witness criminal histories, exhibits,
and expert witness
disclosures.
47. Respondent also failed comply with court orders regarding 72
hours notice to
the defense prior to testing by the CBL
5

48. Respondent failed to timely provide to defense counsel the testing reports
received from the CBL
49. Respondent was reed to provide these test reports to defense counsel in a
timely manner.
50. By such conduct, Respondent violated Cob. RPC 1.1.
WHEREFORE, the complainant prays at the conclusion of this Complaint.
CLAIM II
[Unlawfully Obstructing Another Partys Access to Evidence Cob. RPC
3.4(a)1
-

51. Paragraphs I through 50 are incorporated herein as if fully set forth.


52. Cob. RPC 3.4(a) states that a lawyer may not unlawfully obstruct anothe
r
partys access to evidence or unlawfully alter, destroy or conceal a document, or counsel
others to do so.
53. Respondent instructed the Sheriffs Office to have the Kibitt case eviden
ce

testing done expeditiously.

54. Respondent failed to inform the Sheriffs Office or the CBI that the court
had

ordered the defense be given 72 hours notice prior to any testing.

55. Despite three additional notices from the Sheriffs Office and/or the CBI
that

Kibitt case evidence had been received by the CBI and testing was about
to occur,

Respondent failed to direct that notice be given to the defense 72 hours prior to
the
testing.
56. Respondent allowed the testing to occur without the defendant,
defense

counsel, or the defense expert being notified, in violation of the courts prior orders.

57. Respondent thereby unlawfully obstructed the defendants access to


evidence,

in violation of Cob. RPC 3.4(a).

58. In addition, by failing to timely disclose the CBI test reports to


defense
counsel, Respondent unlawfully obstructed the defendants access to eviden
ce in a
second, independent, violation of Cob. RPC 3,4(a).
59. By such conduct, Respondent twice violated Cob. RPC 3.4(a).

WHEREFORE, the complainant prays at the conclusion of this Complaint.

[Knowingly Disobeying an Obligation under the Rules of a Tribunal


3.4(c)]

Cob. RPC

60. Paragraphs I through 59 are incorporated herein as if fully set forth.


61. Cob. RPC 3.4(c) states that a lawyer shall not knowingly disobey an
obligation under the rules of a tribunal.
62. Respondent failed to disclose the witness criminal histories, and thus
Respondent knowingly failed to comply with Crim. P. 16(I) and 16(V) with regard to
discovery in the Kibiit case.
63. Respondent failed to inform the Sherrif?s Office or the CBI of the courts
order requiring 72 hours notice to the defense prior to testing. Thus, Respondent
knowingly failed to comply with the courts orders regarding discovery in the Kibitt case.

64. By such conduct, Respondent violated Cob. RPC 3.4(c).


WHEREFORE, the complainant prays at the conclusion of this Complaint.
CLAIM IV
[Failure to Make a Reasonably Diligent Effort to Comply with a Legally Proper
Discovery Request Cob. RPC 3.4(d)]
-

65. Paragraphs 1 through 64 are incorporated herein as if fully set forth.


66. Cob. RPC 3.4(d) states that in pretrial procedure, a lawyer shall not
fail to
make a reasonably diligent effort to comply with a legally proper discovery reques
t.
67. Defense counsel requested that their defense expert to be present
during
forensic testing.

68. Defendant Kibitts discovery request was legally proper and was granted
by
the court.
69. The court ordered Respondent to provide 72 hours notice to the defense
prior
to any testing by CBL

70. Despite the order, Respondent insiructed the Sheriffs Office to have the Kibiu
evidence testing done expeditiously.
7LRpQn4entIailonfontheSberiffs-Offlce-or--the-CBI-that-the-defense--should be given 72 hours notice prior to any testing.
72. Despite receiving three additional notices from the Sheriffs Office and/or the
CBI that the evidence had been received by the CBI and that testing of the Kibitt
evidence was to occur, Respondent failed to make a reasonable diligent effort to ensure
that testing would not occur unless the defense had previously received 72 hours notice.
73. As a result of Respondents failure to make reasonably diligent efforts to
ensure that the defense received timely notice, the defense did not receive any prior
notice of the CBI testing.
74. By such conduct, Respondent violated Cob. RPC 3.4(d).
WHEREFORE, the complainant prays at the conclusion of this Complaint.
CLAIM V
EProsecutors Failure to Timely Disclose to the Defense all Evidence which Tends
to Negate the Guilt of the Accused or Mitigate the Offense Cob. RPC 3.8(d)]
-

75. Paragraphs I through 74 are incorporated herein as if fully set forth.


76. RPC 3.8(d) requires that a prosecutor must make timely disclosure
to the
defense all evidence which tends to negate the guilt of the accused or mitigates
the
offense.
77. Respondent received the CBI weapon testing results in the Kibitt case on
June
25, 2012.
78. Respondent received the CBI laboratory testing results in the Kibia ease
on
July 16, 2012.
79. The testing results were evidence which tends to negate the guilt
of the
accused or mitigates the offense.
80. Crini. P. 1 6(I)(a)(2) and 16(V) state that disclosure of evidence which
tends to
negate the guilt of the accused as to the offense charged, or would tend to
reduce the
punishment therefor, is mandatory and automatic.

81. Respondent intentionally delaye


d 50 days before providing the
results to defense.
weapon testing
82Rdt ritenrionally del
ayed 29 days before providing
results to defense.
the lab testing
83. Respondent intentionally fai
led to timely disclose eviden
ce which tends to
negate the guilt of the accused or
mitigates the offense.
84; By such conduct, Responde

nt violated Cob. RPC 3.8(d).

WHEREFORE, the complainant


[Engaging in Conduct that is

prays at the conclusion of this

Complaint.

CLAIM IT
Prejudicial to the Administra
tion of Justice Cob.
PC 8.4(d)]
-

85. Paragraphs 1 through 84 are


incorporated herein as if ful

ly set forth.

86. Cob. RPC 8.4(d) prohibits


a lawyer from engaging in
prejudicial to the administration
conduct that is
of justice.
87. Respondent failed to disclose
the witness criminal histories,
comply with Crim. P. 16(I) and
and thus failed to
16(V) mandatory, automatic dis
closure provisions.
88. Respondent failed to timely
produce the results of scient
defense, and failed to provide
ific testing to the
copies of trial exhibits to the
def
ordered.
ense as the court had
89. Respondent failed to provid
e the defense with the requir
as ordered by the court.
ed expert disclosures,
90. Respondent failed to inform
the Sheriffs Office or the
should be given 72 hours notice
CBI that the defense
prior to any testing, and all
owed the testing to occur
without any prior notice to
the defense, and failed to
timely disclose exculpatory
evidence.
91. By such conduct, Respondent
WHEREFORE, the complainant

violated Cob. RPC 8.4(d).

prays at the conclusion of thi

s Complaint.

People v. Jeremy Licon, 10CR1


54
9

92. Jeremy Licon was arrested on September 30, 2010 for domestic violence arid
trespass.
Police Department investigation report, including four color photos and reports
containing of Mr. Licons history of drug abuse and domestic violence.
94. Although Respondent had not yet filed charges against Mr. Licon, on October
8, 2010, Respondent ified a Notice of Additional Discovery listing Page 6 of a law
enforcement investigation report.
95. On October 21, 2010, Respondents Assistant District Attorney, Clay
McKisson, filed a Complaint and Information, People v. Jeremy Licon, Las Animas
County District court, 10CR154 (the Licon case), against Mr. Licon for First Degree
Criminal Trespass, Theft, Criminal Mischief, and Conspiracy to Commit Theft.

96. On November 16, 2010, and November 23, 2010, Respondent filed Notices of
Additional Discovery, listing four more pages of a law enforcement investigation report,
the Trinidad Police Department Supplemental Report, and incident reports regarding Mr.
Licon from the Raton Police Department in New Mexico.
97. The investigation reports stated that law enforcement had collected evidence
regarding Mr. Licon, including photographs of the crime scene, photos of Mr. Licon on
CD, recorded interviews of Mr. Licon and the victim, Jessica Gerardo, and buccal swabs
from Mr. Licon.
98. Under Crim. P. 16(I)(a)(l)(I), automatic disclosure by the prosecuting attorney
of all witnes& statements is required, whether or not the defense requests them.
99. Respondent intentionally failed to produce to the defense evidence in the Licon
case, including photographs of the crime scene, photos of Mr. Licon on CD, recorded
interviews of Mr. Licon and the victim, Jessica Gerardo, and buccal swabs from Mr.
Licon.
100.

The recorded interviews with police were exculpatory evidence.

101. On February 29, 2012, defense counsel filed a Motion for Sanctions for
Violation of Crim. P. 16. The Motion alleged that Respondent violated Crini. P. 16
because he had never produced the above evidence in discovery, as is required by the
Crim. P. 16(I)(b)(1) mandatory automatic disclosure requirement.

10

102. Based on Respondents failure to disclose evidence over a period of 17


months, the defense requested as a sanction that the case be dismissed, or that the abovelisted evidence be excluded from trial.
103.

A hearing on the Motion for Sanctions was set for March 23, 2012.

104. imniediateiy prior to the hearing on the motion for sanctions set for March
23, 2012, Respondent ified a motion to dismiss the case against Mr. Licon.

105.

The court granted the motion to dismiss.


CLAIM VII
[Failure to Provide Competent Representation Cob. RPC 1.11
-

106.

Paragraphs I through 105 are incorporated herein as if fully set forth.

107. Cob. RPC 1.1 states that a lawyer shall provide competent representation
to a client. Competent representation requires the legal knowledge, skill, thoroughness
and preparation reasonably necessary for the representation.
108. Respondent represented the People of the State of Colorado in all cases he
handled as District Attorney.
109. The disclosure of evidence to the defense is a fundamental obligation of
every prosecutor under Crim. P. 16(1).
110. Respondent failed to determine what evidence should be disclosed to the
defense during discovery in the Licon case.
111. Respondent failed to make appropriate and timely disclosures to the
defense in the Licon case.
112.

Respondents failures were incompetent.

113.

By such conduct, Respondent violated Cob. RPC 1.1.

WHEREFORE, the complainant prays at the conclusion of this Complaint.


CLAIM VIII
[Unlawfully Obstructing Another Partys Access to Evidence Cob. RPC 3.4(a)]
-

114.

Paragraphs 1 through 113 are incorporated herein as if fully set forth.

11

115. Cob. RPC 3.4(a) states that a lawyer may not unlawfully obstruct another
partys access to evidence or unlawfully alter, destroy or conceal a document, or counsel
others to do so.
116. As discussed above, Respondent failed to produce evidence to defense
counsel for Mr. Licon, including photographs of the crime scene, photos of Mr. Licon on
CD, recorded interviews of Mr. Licon and the victiir, Jessica Gerardo, and bucoal swabs
from Mr. Licon.
117. Respondent failed to comply with the Crim. P. 16(I)(b)(1) mandatory
automatic disclosure requirement.
118.

Respondent thereby unlawfully obstructed defendants access to evidence.

119.

By such conduct, Respondent violated Cob. RPC 3.4(a).

WHEREFORE, the complainant prays at the conclusion of this Complaint.


CLAJM IX
[Knowingly Disobeying an Obligation under the Rules of a Tribunal Cob. RPC
3.4(c)I

120.

Paragraphs 1 through 119 are incorporated herein as if fully set forth.

121. Cob. RPC 3.4(c) states that a lawyer shall not knowingly disobey an
obligation under the rules of a tribunal.
122. Respondent knew that he had not produced the above referenced evidence
to the defense, including photographs of the crime scene, photos of Mr. Licon on CD,
recorded interviews of Mr. Licon and the victim, Jessica Gerardo, and buccal swabs from
Mr. Licon.
123.
Respondent knew that he was obligated to do so per the Crim. P.
16(I)(b)(1) mandatory automatic disclosure requirement.
124.

Respondent thereby knowingly disobeyed the rules of the tribunal.

125.

By such conduct, Respondent violated Cob. RPC 3.4(c).

WHEREFORE, the complainant prays at the conclusion of this Complaint.


CLAIM X
[Prosecutor Failed to Timely Disclose to the Defense AU Evidence Which Tends
12

4.

to Negate the Guilt of the Accused or Mitigated the Offense Cob. RPC 3.8(d)]
-

126.

Paragraphs 1 through 125 are incorporated herein as if fully set forth.

127. Cob. RPC 3.8(d) requires that a prosecutor must make timely disclosure to
the defense all evidence which tends to negate the guilt of the accused or mitigates the
offense,
128. Crim.. P. 16(1)(b)(I) required Respondent to make evidence available to the
defense within 20 days of the defendants first appearance.
129. Respondent admitted in his motion to dismiss that the evidence discussed
above was evidence which tends to negate the guilt of the accused or mitigates the
offense.
130. For 17 months after the filing of the Licon case, Respondent failed to
produce to the defense evidence which tends to negate the guilt of the accused or
mitigates the offense.
Respondent intentionally failed to make timely disclosure of the evidence
131.
per the Crim. P. 16(l)(b)(l) and 16(V) mandatory automatic disclosure requirement.
132. Thus, the disclosure of evidence which tends to negate the guilt of the
accused or mitigates the offense was not timely.
133.

By such conduct, Respondent violated Cob. RPC 3.8(d).

WHEREFORE, the complainant prays at the conclusion of this Complaint.


CLAIM Xl
[Engaging in Conduct that is Prejudicial to the Administration of Justice Cob.
RPC 8.4(d)]
-

134.

Paragraphs 1 through 133 are incorporated herein as if fully set forth.

135. Cob. RPC 8.4(d) prohibits a lawyer from engaging in conduct that is
prejudicial to the administration ofjustice.
136. As discussed above, Respondent failed to timely disclose exculpatory
evidence to the defense in the Licon case.
137.

As a result, the resolution of the Licon case was substantially delayed.

13

138. The defense had to file a Motion for Sanctions and the court had to set a
hearing on the Motion for Sanctions.
yJayandiaiIureto prothceevif1enceRespondentvio1ated-Colo
RPC 8.4(d).
WHEREFORE, the complainant prays at the conclusion of this Complaint
People v. Victor J Fossen Castorena, 12CR192
140.

On September 17,2012, Defendant Castorena was arrested for theft.

141. Later that day, Respondent received a police report which stated that the
Trinidad Police Department had been called by a WahllRrt store regarding a theft,
allegedly committed by Castorena.
142.
system.

The police report sent to Respondent discussed Walmarts surveillance

143. The police report stated that Officer LePlatt of the Trinidad Police
Department had viewed the surveillance videos.
144. The surveillance video cameras had recorded defendant Castorena stealing
five iPads, and concealing them in an air mattress box.
145. The Walmart security personnel, and officers of the Trinidad Police
Department, were able to view Mr. Castorenas identification card and confirmed the
person in the Waimart video was the defendant, Mr. Castorena.
146.

Respondent received another police report dated September 18,2012.

147. The report noted relevant evidence including two compact discs containing
video surveillance of the crime allegedly committed by defendant Castorena.
148. Respondent did not direct law enforcement to conduct any further
investigation, or gather any additional evidence.
149. Respondent failed to ask law enforcement to search the defendants
apartment or to otherwise attempt to recover the five stolen iPads.
150. On September 25, 2012, Respondent filed a Complaint and Information
against Defendant, People v. Victor J Fossen Costorena, Las Animas County District
Court, 12CR192 (the Castorena case).
14

151. Respondent did not reaest a copy from the Trinidad Police Department of
the surveillance video of Mr. Castorena stealing the five iPads.
152. Respondent failed to comply with Crim. P. 16(I)(b)(4) which required

Respondent to ensure that a flow of information is maintained between the investigative


personnel and Respondents office, sufficient to place all material and information
relevant to the accused in Respondents possession.
153. Respondent did not timely make available the Walmart surveillance CD to
the defense counsel, as is required under Crim. P. 16(I)(b)(1) mandatory, automatic
disclosures.
154. At a dispositional hearing on November 7, 2012, the public defender

requested a copy of the Walmart video surveillance CD.


155. At the hearing, the court noted that failure to produce the CD was a violation
of Crim. P. 16(I) and 16(V) mandatory, automatic disclosures.
156. The court ordered that Respondent must produce the Walmart surveillance
videos to the defense prior to November 28, 2012.

157, Respondent assured the court he would get the CD to the defense within two
weeks, and prior to the next hearing set for November 28, 2012.
158. On November 7, 2012, Respondent mailed a letter to the Trinidad Police
Department requesting (for the first time) a copy of the Walmart surveillance CD.
159. At the hearing on November 28, 2012, the public defender stated he had not

yet received the surveillance CD, and he made an oral motion for discovery sanctions
against Respondent.
160. Respondent argued the Walmart surveillance videos must not be that
important because defense hadnt called him about it earlier in the week.
161. On November 29, 2012, the court issued a written order granting the defense
counsels request for sanctions.
162. The court barred Respondent from offering the Walmart siirvefflance CD into
evidence at trial, and no witness could mention the surveillance videos.
163. A note in Respondents case file indicates the Trinidad Police Department
sent Respondent the surveillance CD on November 29, 2012.
15

164. On December 4, 2012, the Public Defender picked up the videos from the
District Attorneys Office.
21, 2013.

(iii 1Tto begin May

166. At a dispositional hearing on February 13, 2013, Respondent made an oral


motion to dismiss the case.
167. Respondent stated in open court that his reason for dismissal was that the
surveillance videos were the cornerstone of the case, and the discovery sanction
suppressing the surveillance video made it impossible for him to prove his case against
Defendant Castorena.
168. The court issued a minute order approving the dismissal.
CLAIM XII
[FiIure to Provide Competent Representation Cob. RPC Li]
-

169.

Paragraphs 1 through 168 are incorporated herein as if fully set forth.

170. Cob. RPC 1.1 states that a lawyer shall provide competent representation
to a client. Competent representation requires the legal knowledge, skill, thoroughness
and preparation reasonably necessary for the representation.
171. Respondent represented the People of the State of Colorado in all cases he
handied as District Attorney.
172. Among the fundamental duties of a prosecutor is the fundamental duty to
gather the evidence and timely disclose the evidence to the defense.
173. The disclosure of evidence to the defense is a fundamental obligation of
every prosecutor under Crim. P. 16(I).
174. Respondent failed to get a copy of the Walmart surveillance CD from law
enforcement.
175. Respondent failed to request that law enforcement gather additional
evidence, e.g., by searching Mr. Castorenas apartment to attempt to recover the stolen
iPads.

16

176. Respondent failed to determine what evidence should be disclosed to the


defense during discovery in the Costorena case.

between the investigative personnel and Respondents office, sufficient to place all
material and information relevant to the accused in Respondents possession, as is
required by Crim. P. 16(lXb)(4).
178. Respondent failed to timely request a copy of the Walmart surveillance CD
from the Trinidad Police Department.
179. Respondent failed to make appropriate and timely disclosures to the defense
in the Castorena case.
180. Respondents failures were incompetent.
181. By such conduct, Respondent violated Cob. RPC 1.1.
WHEREFORE, the complainant prays at the conclusion of this Complaint.
CLAIM X[ll
[Unlawfully Obstructing Another Partys Access to Evidence Cob. RPC 3.4(a)I
-

182.

Paragraphs 1 through 181 are incorporated herein as if fully set forth.

183. Cob. RPC 3.4(a) states that a lawyer may not unlawfully obstruct another
partys access to evidence or unlawfully alter, destroy or conceal a document, or counsel
others to do so.
184. Respondent failed to comply with Crim. P. 16(l)(b)(4) which required
Respondent to ensure that a flow of information is maintained between the investigative
personnel and Respondents office, sufficient to place all material and information
relevant to the accused in Respondents possession.
185. Respondent failed to obtain the Walmart surveillance CD from law
enforcement so that Respondent could make it available to defense counsel for Mr.
Castorena.
186. Respondent failed to comply with the Crim. P. 16(l)(b)(1) mandatory,
automatic disclosure requirement by failing to make available to the defense the Walmart
surveillance CD.

17

187. Respondent thereby unlawfully obstructed the defendants access to


evidence.
J$&

WHEREFORE, the complainant prays at the conclusion of this Complaint.


CLAIM XIV
[Knowingly Disobeying an Obligation under the Rules of a Tribunal Cob. RPC
3.4(c)]

189. Paragraphs 1 through 188 are incorporated herein as if fully set forth.
190. Cob. RPC 3.4(c) states that a lawyer shall not knowingly disobey an
obligation under the rules of a tribunal.
191. Respondent knew that he had not timely requested a copy of the surveillance
video from the Trinidad Police Department.
192. Respondent knew that he was obligated to do so per the Crim. P. 16(l)(b)(4)
communication requirements.

193. Respondent knew that he had not produced the above referenced surveillance
video to the defense.
194. Respondent knew that he was obligated to do so per the Crim. P. 16(I)(b)(l)
mandatory automatic disclosure requirement.
195. Respondent thereby knowingly disobeyed the rules of the tribunal.

196. By such conduct, Respondent violated Cob. RPC 3.4(c).


WHEREFORE, the complainant prays at the conclusion of this Complaint.
CLAIM XV
[Failure to Make a Reasonably Difigent Effort to Comply with a Legally Proper
Discovery Request Cob. RPC 3.4(d)]
-

197. Paragraphs 1 through 196 are incorporated herein as if fully set forth.
198. Cob. RPC 3.4(d) states that in pretrial procedure, a lawyer shall not fail to
make a reasonably diligent effort to comply with a legally proper discovery request.

18

199. The court ruled that defendants discovery request was legally proper and
ordered that Respondent must produce the surveillance videos to the defense prior to
November 28,2012.
--

200. Althou Respondent could have requested a copy of the surveillance CD


from the Trinidad Police Department any time after September 17, 2012, Respondent
.L..1

--------._

f%

i1Lcu r-eqLie3-c a Wj3 UUtLI J.UViui3i I, LULL.


-

_.

201. Even in the faGe of a court order, Respondent failed to call law enforcement
or go to the office of law enforcement between the date of the order and the date of the
next hearing, set November 28, 2012, to obtain a copy of the surveillance CD.
202. Therefore, Respondent failed to make a reasonably diligent effort to comply
with a legally proper discovery request.
203.

By such conduct; Respondent violated Cob. RPC 3.4(d).

WHEREFORE, the complainant prays at the conclusion of this Complaint.

CLAIM XVI
[Engaging in Conduct that is Prejudicial to the Administration of Justice Cob.
RPC 8.4(d)1
-

204.

Paragraphs 1 through 203 are incorporated herein as if fully set forth.

205. Cob, RPC 8.4(d) prohibits a lawyer from engaging in conduct that is
prejudicial to the administration ofjustice.
206. As discussed above, Respondent failed to comply with Crim. P. 16(I)(b)l)
and 16(V) and failed to timely disclose evidence to the defense in the Castorena case.
207.

As a result, the resolution of the Castorena case was substantially delayed.

208. The court had to set a hearing regarding discovery and had to order
Respondent to produce the surveillance video by the next hearing on November 28, 2012.
209. Respondent disobeyed court orders and failed to produce the surveillance
video to the defense by November 28,2012.
210. By his delay and failure to produce evidence, Respondent violated Cob.
RPC 8.4(d).
WHEREFORE, the complainant prays at the conclusion of this Complaint.
19

People v. Joseph Rodriguez, 12CR242

arrest and his court advisement regarding alleged domestic violence, felony harassment,
felony theft, and armed robbery.
212. On December 14, 2012, Respondent ified a Complaint and Information,
People v. Joseph Rodriguez, Las Animas County District Court, 12CR242 (the
Rodriguez case), against defendant Rodriguez for Aggravated Robbery, Criminal
Attempt to Commit Aggravated Robbery, Theft and Menacing.
213. Respondent failed to comply with the mandatory, automatic disclosures
required by Crim. P. 16(IXb)(1) and 16(V), by failing to make available to the defendant,
witness statements, 911 recordings, 2012 police reports, recorded interviews of
prosecution witnesses, and criminal histories for certain prosecution witnesses.
214. On March 27, 2013, defense counsel filed a Motion for Sanctions for
Discovery Violations.
215. Respondent then produced some of the mandatory disclosures to the defense.
216. On April 24, 2013, the defense filed an amended Motion to Dismiss As
Sanction for Discovery Violations.
217. The motion noted certain items of evidence Respondent still had not
produced in discovery, including:
a) Evidence of a witness statement made five months earlier, likely
exculpatory evidence, described in a report from Officer Gillis dated Nov.
3, 2012, not produced to defense until April 2013;
b) December 2012 police reports;
c) 6 CD recordings of interviews conducted with prosecution witnesses,
several of which were potentially exculpatory;
d) A police report of an interview and/or a recorded interview of witness Ms.
Dunn; and;
e) The criminal history of four prosecution witnesses (Crim. P. 16 requires
that Respondent disclose this information prior to trial).

20

218. On May 8, 2013, Respondent filed a response to the Amended Motion to


Dismiss As Sanction for Discovery Violations.
discovery had been produced timely as requiredbyCrim. P. 16(1)(b)(1) and 16(V).
220. As of May 10, 2013, Respondent had failed to provide discovery to the

defense including police reports, 911 recordings, and recordings of witness interviews.

221. On May 24, 2013, District Court Judge Appel held a hearing on the pending
Motion and Amended Motion to Dismiss As Sanction for Discovery Violations.
222. Defense counsel stated be had recently received a large volume of the
requested discovery, and that it would be impossible for the defense to review (prior to
the June 3, 2013 trial date) all of the documents and other evidence recently produced by
Respondent.
223. Judge Appel noted that Respondent had only recently produced to defense 89
pages of new discovery, and an additional CD with 911 recordings.
224. Although the Defendants constitutional speedy trial date expired on July 11,
2013, defendant waived his right to speedy trial and the court agreed to continue the trial
date.
225. Respondent was ordered to ifie any response to the Amended Motion to
Dismiss by June 10, 2013.
226. On June 11, 2013, at a motions hearing in a different case, 12CR232, People
v. William Marquez, Respondent admitted in open court that he had many videotapes
(recorded from November 2, 2012) in his office, related to two separate convenience
store robberies, which he bad not yet been able to watch.
227. Respondent stated that one of the convenience store robberies discussed in
the videotapes was allegedly committed by Rodriguez, whereas the other convenience
store robbery discussed in the videotapes was allegedly committed by William Marquez,
and may be at issue in the 12CR232, People v. William Marquez case.
228. Respondent admitted in the June 11, 2013, 12CR232 (People v. William
Marquez) motions hearing that he had not watched the videos, or disclosed them in the
Marquez case, because my understanding is they have to do with [the Rodriguez case]
and that case doesnt go to trial for another couple months. So, you know, I have no, I
have not sat and watched them.

21

229. The court reset the hearing on the defenses Amended Motion to Dismiss and
Motion for Sanctions to August 9, 2013.

Prior
agreed to a plea deal with defendant Rodriguez.
231. Respondent amended the Peopl&s complaii dmpping all felony charges,
and charging Mi. Rodriquez with misdemeanor theft only.
theft.

232. Defendant Rodriguez pled guilty to the amended complaint for misdemeanor
CLAIM XVII
[Failnre to Provide Competent Representation Cob. RPC 1.1]
-

233.

Paragraphs 1 through 232 are incorporated herein as if frilly set forth.

234. Cob. RPC 1.1 states that a lawyer shall provide competent representation to
a client. Competent representation requires the legal knowledge, skill, thoroughness and
preparation reasonably necessary for the representation.
235. Respondent represented the People of the State of Colorado in all cases he
handled as District Attorney.
236. The disclosure of evidence to the defense is a fundamental obligation of
every prosecutor under Crim. P. 16(I).
237. Respondent failed to watch police videotapes of witness interviews, which he
admitted were in his possession, and which were potentially exculpatory evidence in both
cases--People v. Joseph Rodriguez 12CR242, and People v. William Marquez 12CR232.
238. Respondent failed to determine what evidence should be disclosed to the
defense during discovery in the Rodriguez case.
239.
Respondent failed to make appropriate and timely disclosures to the defense in
the Rodriguez case, including 911 recordings, witness statements, December 2012 police
reports; 6 CD recordings of interviews conducted with prosecution witnesses, and
criminal histories of four prosecution witnesses.
240.

Respondents failures were incompetent.

241.

By such conduct, Respondent violated Cob. RPC 1.1.

22

WREREFORE, the complainant prays at the conclusion of this Complaint.


CLAIM XVIII

_nlawfuIlyObscdng
242. Paragraphs I through 241 are incorporated herein as if fully set forth.
243. Cob. RPC 3.4(a) states that a lawyer may not unlawfully obstruct another
partys access to evidence or unlawfully alter, destroy or conceal a document, or counsel
others to do so.
244. As discussed above, Respondent failed to timely produce evidence to
defense counsel for Mr. Rodriguez, including 911 recordings, witness statements,
December 2012 police reports; 6 CD recordings of interviews conducted with
prosecution witnesses, and criminal histories of four prosecution witnesses.
245. Respondent failed to comply with the Crim. P. 16(lXb)(1) mandatory
automatic disclosure requirement.
246.
evidence.
247.

Respondent thereby unlawfully obstructed the defendants access to


By such conduct, Responient violated Cob. RPC 3.4(a).

WHEREFORE, the complainant prays at the conclusion of this Complaint.


CLAIM XIX
[Knowingly Disobeying an Obligation under the Rules of a Tribunal Cole. RPC
3.4(c)]

248. Paragraphs 1 through 247 are incorporated herein as if fully set forth.
249. Cob. RPC 3.4(c) states that a lawyer shall not knowingly disobey an
obligation under the rules of a tribunal.
250. Respondent knew that he had not produced the 911 recordings, the complete
2012 police reports, and the recorded witness interviews with prosecution witnesses, to
defense counsel for Mr. Rodriguez.
251. Respondent knew that he was obligated to do so per the Crim. P. 16(I)(b)(l)
mandatory disclosure requirement.
252. Respondent thereby knowingly disobeyed the rules of the tribunal.
23

253. By such conduct, Respondent violated Cob. RPC 3.4(c).

pJpystecluskm ofsComplaint.
CLAIM XX
[Prosecutor Failed to Timely Disclose to the Defense All Evidence which Tended
to Negate the Guilt of the Accused or Mitigated the Offense Cob. RPC 3.8(d)1
=

254. Paragraphs 1 through 253 are incorporated herein as if fully set forth.
255. Cob. RPC 3.8(d) requires that a prosecutor must make timely disclosure to

defense all evidence which tends to negate the guilt of the accused or mitigates the
offense.
256. Respondent received the police recordings of witness interviews on or about
November 2, 2012.
257. The recorded witness interviews were evidence which tends to negate the

guilt of the accused or mitigates the offense.

258. Crim. P. l6(1)(a)(2) and 16(V) state that disclosure of evidence which tends
to negate the guilt of the accused as to the offense charged, or would tend to reduce the
punishment therefor, is mandatory and automatic.
259. Respondent intentionally delayed five months, until April 2013, before
providing to the defendant videotapes and certain other discovery, including evidence
which tends to negate the guilt of the accused or mitigates the offense.

260. Respondent intentionally failed to timely disclose evidence which tends to


negate the guilt of the accused or mitigates the offense.
261.

By such conduct, Respondent violated Cob. RPC 3.8(d).

WHEREFORE, the complainant prays at the conclusion of this Complaint.


CLAIM XXI
[Engaging in Conduct that is Prejudicial to the Administration of Justice Cob.
RPC 8.4(d)]
-

262. Paragraphs 1 through 261 are incorporated herein as if fully set forth.

24

263. Cob. RPC 8.4(d) prohibits a lawyer from engaging in conduct that is
prejudicial to the administration of justice.
.

recorded by police, and thus failed to comply with Crim. P. 16(1) and 16(V) mandatory,
automatic disclosure provisions.
265. Respondents failures caused the court to set hearings regarding discovery.
266. Respondents failures caused the case to extend past the defendants
constitutional speedy trial date which expired on July 11,2013.
267. Respondents failures caused the court to have to continue the trial date.
268. By such conduct, Respondent violated Cob. RPC 8.4(d).

WHEREFORE, the complainant prays at the conclusion of this Complaint.


People v. William Marquez, 12CR232
269. On October 26, 2012, Mr. Marquez, was arrested for alleged second degree
kidnapping, aggravated robbery, robbery, second degree assault, and theft.
270. November 20, 2012, Respondent filed a Complaint and Information in
People v. William Marquez, Las Animas County District Court, 12CR232 (the Marquez
case), charging defendant Marquez with Second Degree Kidnapping, Aggravated
Robbery, Robbery, Assault in the Second Degree, and Theft.
271. On February 28, 2013, the court set the case for a jury trial to begin on July
8, 2013.
272. On April 24, 2013, the defendant filed a Motion for Preservation and
Production of Evidence, which included requests for the photo lineup used for
identification of the defendant, the victim ambulance treatment report, and the criminal
histories of all prosecution witnesses.
273. The court granted the Motion for Preservation and Production of Evidence on
April 25, 2013, and ordered that Respondent produce the requested evidence within 21
days of the order, i.e., by May 16, 2013.
274. Respondent did not request any additional time to comply with the April 25,
2013 order.

25

275. On May 6, 2013, the defendant filed a Motion to Suppress Identification


which alleged that Respondent failed to provide a photo lineup to the defense in
discovery.

276. On June 11, 2013, the court held a motions hearing. During the hearing
Respondent admitted that he had not produced the photo lineup to defense counsel in the
Marquez case.
277. At the June 11, 2013 hearing, Respondent also stated to the court that he had
provided the victim/witness Gambo&s criminal history to the defense.
278. Respondent later admitted (in the same hearing) that in fact Respondent had
not provided the defense with the criminal history of victim/witness Gamboa.
279. At the June 11, 2013 hearing, Respondent realized that he did have a signed
medical release from victim/witness Garnboa in his ifie.
280., Although he already had a signed medical records release from Gamboa,
Respondent failed to obtain the victim ambulance treatment report or produce it to the
defense in discovery.
281. At the same hearing, defense counsel noted that in speaking with a potential
witness, defense counsel had learned that police had videotape of a November 2, 2012
interview with witness Melissa Edwards.
282. Respondent admitted in the June 11, 2013 motions hearing that he had a copy
of the videotapes at his office, but that he had not watched the videos, or disclosed them
in the Marquez case, because my understanding is they have to do with [the Rodriguez
case] and that case doesnt go to trial for another couple months. So, you know, I have
no, I have not sat and watched them.

283. Respondent admitted on the record but that he was not sure if he had watched
the entire video of Melissa Edwards, or all of the videotapes in his possession.
284. Respondent admitted that he had not disclosed or produced the videotaped
interview of Melissa Edwards to counsel for defendant Mr. Marquez.
285. On June 17, 2013, the court issued an order regarding the defenses request
for sanctions for discovery violations.

286. The court determined Respondent had either purposely failed to produce
the photo lineup, witness criminal histories, ambulance treatment records, and videotapes

26

a.

of witness interviews, or Respondent is demonstrating a level of incompetency that is


troubling for an elected District Attorney.
28-7
in People v. Scott A. Kthitt, 11 CR198.
288. The court concluded that Respondents repeated discovery violations are a
pattern of behavior and appears to the Court to be a deliberate attempt to frustrate the
discovery process contemplated by Rule 16, which depends on the good faith of the
parties to be self-executing without judicial involvement.
289. The court found a willful pattern of discovery violations by Respondent
and set the Marquez matter for an additional hearing to determine the sanctions to be
imposed.
290. On June 19, 2013, Respondent appeared at the hearing in the Marquez case
and immediately made an oral motion to dismiss the case against defendant Marquez.
291. The court granted the motion and dismissed the case.
CLAIM XXII
[Failure to Provide Competent Representation Cob. RPC Li]
-

292. Paragraphs 1 through 291 are incorporated herein as if fully set forth.
293. Cob. RPC 1.1 states that a lawyer shall provide competent representation to
a client. Competent representation requires the legal knowledge, skill, thoroughness and
preparation reasonably necessary for the representation.
294. Respondent represented the People of the State of Colorado in all cases he
handled as District Attorney.
295. The disclosure of evidence to the defense is a fundamental obligation of
every prosecutor under Crim. P. 16(I).

296. Respondent failed to watch police videotapes of witness interviews, which he


admitted were in his possession, and which were potentially exculpatory evidence in both
cases--People v. Joseph Rodriguez 12CR242, and People v. William Marquez 12CR232.
297. Respondent failed to determine what evidence should be disclosed to the
defense during discovery in the Marquez case.

27

298. Respondent failed to make appropriate and timely disclosures to the


defense in the Marquez case, including the photo lineup used for identification of the
defendant, the victim ambulance treatment report, the criminal histories of all prosecution
wiinesses,nd thevideointerviewofMelissaEdwards.
299.

Respondents failures were incompetent.

300.

By such conduct, Respondent violated Cob. RPC 1.1.

WHEREFORE, the complainant prays at the conclusion of this Complaint.


CLAIM XXIII
[Unlawfully Obstructhag Another Partys Access to Evidence Cob. RPC 3.4(a)1
-

301. Paragraphs 1 through 300 are incorporated herein as if fully set forth.
302. Cob. RPC 3.4(a) states that a lawyer may not unlawfully obstruct another
partys access to evidence or unlawfully alter, destroy or conceal a document, or counsel
others to do so.
303. As discussed above, Respondent failed to produce certain evidence to
defense counsel for Mr. Marquez, including the photo lineup used for identification of the
defendant, the victim ambulance treatment report, and the criminal histories of all
prosecution witnesses, and the video interview of Melissa Edwards
304. Respondent failed to comply with the Crim. P. 16(I)(b)(l) mandatory
automatic disclosure requirement.
305. Respondent thereby unlawfully obstructed defendant Marquez access to
evidence.
306.

By such conduct, Respondent violated Cob. RPC 3.4(a).

WHEREFORE, the complainant prays at the conclusion of this Complaint.


CLAIM XXIV
(Knowingly Disobeying an Obligation under the Rules of a Tribunal
3.4(c)]

Cob. RPC

307. Paragraphs 1 through 306 are incorporated herein as if fully set forth.
308. Cob. RPC 3.4(c) states that a lawyer shall not knowingly disobey an
obligation under the rules of a tribunal.
28

309. Respondent knew that he had not produced the above referenced evidence
including a photo lineup, witness criminal histories, ambulance treatment records, and
-

the defense.
310. Respondent knew that he was obligated to do so per the Crim. P. 16(iXb)(i)
mandatory automatic disclosure requirement.
311. Respondent thereby knowingly disobeyed the rules ofthe tribunal.
312.

By such conduct, Respondent violated Cob. RPC 3.4(c).

WHEREFORE, the complainant prays at the conclusion of this Complaint.


CLAIM XXV
[Prosecutor Failed to Timely Disclose to Defense All Evidence which Tended
to Negate the Guilt of the Accused or Mitigated the Offense Cob. RPC 3.8(d)1
-

313. Paragraphs 1 through 312 are incorporated herein as if fully set forth.
314. Cob. RPC 3.8(d) requires that a prosecutor must make timely disclosure to
defense all evidence which tends to negate the guilt of the accused or mitigates the

offense.
315. Respondent received the police recordings of witness interviews on or about
November 2, 2012.
316. The recorded witness interviews, including the video interview of Melissa
Edwards, was evidence which tends to negate the guilt of the accused or mitigates the
offense.
317. Crirn. P. 1 6(I)(a)(2) and 16(V) state that disclosure of evidence which tends
to negate the guilt of the accused as to the offense charged, or would tend to reduce the
punishment therefor, is mandatory and automatic.
318. Respondent intentionally delayed five months, until April 2013, before
providing the defendant videotapes and certain other discovery, including evidence which
tends to negate the guilt of the accused or mitigates the offense.
319. Respondent intentionally failed to timely disclose evidence which tends to
negate the guilt of the accused or mitigates the offense.
29

320. Respondent never did produce to the defense all of the recorded police
interviews which was evidence which tends to negate the guilt of the accused or mitigates
-----thoffense.
-

321. By such conduct, Respondent violated Cob. RPC 3.8(d).

WHEREFORE, the complainant prays at the conclusion of this Complaint.


CLAIM XXVI
Conduct
that
is
Prejudicial
to the Administration of Justice Cob.
[Engaging in
RPC 8.4(d)]
-

322. Paragraphs I through 321 are incorporated herein as if fully set forth.
323. Cob. RPC 8.4(d) prohibits a lawyer from engaging in conduct that is
prejudicial to the adminilration ofjustice.
324. Respondent failed to disclose the witness interviews recorded by police, a
photo lineup, witness criminal histories, and ambulance treatment records, and thus
failed to comply with Crim. P. 16(I) and 16(V) mandatory, automatic disclosure
provisions.
325. Respondents failures caused the court to set a hearing regarding discovery.
326. Respondents failures caused the court to issue a lengthy order on sanctions
for discovery violations.
327. Respondents failures caused the resolution of the case to be delayed.
328. By such conduct, Respondent violated Cob. RPC 8.4(d).

WHEREFORE, the complainant prays at the conclusion of this Complaint.


FA1UIRE TO SUPERVISE
329. Respondents district attorney office consists of Respondent, and three other
deputy district attorneys (DDA).
330. Respondent failed to properly supervise and/or train two subordinate DDAs
working in his office.

30

331. Respondent failed to make reasonable efforts to ensure that other lawyers in
his office conformed to the Rules of Professional Conduct.
332.Wiggins, had no prior county or district court trial experience at the time Respondent
hired them.
333. Neither DDA Hall nor DDA Wiggins have been to prosecutor trial school,
i.e., baby DA school.
334. Respondent hired DDA Andrew Hall in April 2011.
335. DDA Hall immediately began handling misdemeanor trials with no training
or supervision from Respondent.
336. In March 2013, Respondents former Assistant District Attorney, Clay
McKisson, left the D.A.s office to become a probation officer.
337. At that time,

Hall had worked in Respondents office for approximately a

year and a half.


338. Respondent then promoted DDA Hall up to the Assistant District Attorney
(ADA) position.
339. Halls only training came from former ADA Clay McKisson, and only lasted
about one week.
340. Respondent failed to supervise DDA Hall.
341. Respondent gave Hall complete discretion regarding Halls own caseload.
342. At the time Respondent promoted Hall to ADA, Hall had never handled a
felony motions hearing.
343. At the time Respondent promoted Hall to ADA, Hall had never handled a
felony trial.
344. At the time Respondent promoted Hall to ADA, Hall had never tried a felony
case with Respondent.
345. At the time Respondent promoted Hall to ADA, Hall had not accompanied
Respondent to a felony motions hearings, trial, or sentencing.

31

346. As ADA, Hall has responsibility to handle all felony cases in Huerfano
County.

348. Respondent hired DDA Ashleigh Wiggins in January 2012.


349. At the time Respondent hired Wiggins, she had no trial experienoe.
35th Respondent assigned Wiggins to handle all misdemeanors for Las Animas
and Huerfano Counties.
351. Respondent assigned Wiggins to handle the juvenile docket for both Las
Animas and Huerfano Counties.
352. When Wiggins started in January 2012, she was not trained by Respondent.
353. DDA Andrew Hall trained Wiggins regarding misdemeanor charges and

trials.
354. Respondent did not train Wiggins regarding juvenile law.
355. Respondent let Wiggins boffow his copy of Title 19 (Colorado juvenile

law) and told Wiggins to read it,


356. DDA Wiggins asked Respondent to send her to prosecutor trial school, i.e.,

baby D.A. School.


357. Respondent failed to send DDA Wiggins to baby D.A. School.
358. Respondent has not co-counseled any case with DDA Wiggins.
359. Respondent has not allowed DDA Wiggins to attend or co-counsel any
misdemeanor, juvenile, or felony proceeding handled by Respondent.
360. Although she is a subordinate lawyer in Respondents office, Wiggins is not
supervised by Respondent.
361. Respondent does not review DDA Wigginss case files.
362. Respondent does not review DDA Wigginss trial results.

32

363. Respondent does not supervise or train DDA Hall or Wiggins regarding their
compliance with Crirn. P. 16(1).
DDA Hall or DDA Wiggins.
365

Respondent failed to take reasonable steps to ensure that his office practices,
not merely policies, actually comply with Colorado Rules of Professional Conduct
binding all lawyers practicing law in Colorado.
366. By way of illustration, Respondent failed to make reasonable efforts to
ensure that Deputy District Attorneys and Assistant District Attorneys working in his
office, including Mr. Hall and Ms. Wiggins, conformed to the Rules of Professional
Conduct in the following cases:
People v. Ryan Low, 09M185

367. On April 27, 2009, fonner DDA, Geoffrey Wasson, charged Ryan Low with
Theft, Menacing, and Harassment as Acts of Domestic Violence, People v. Ryan Low,
Las Animas County Court, 09M1 85 (the Low case).
368. Crim. P. 16(I)(a)(l)(IV) required the prosecutor to produce to the defense all
books, papers, documents, photographs or tangible objects held as evidence in connection
with the case.
369. A recording of a 911 call is a tangible object held as evidence.
370. Crim. P. 16 (I)(b)(l) (as published in 2009) required the D.A.s office to
produce the 911 tape to defense counsel no later than twenty calendar days after the
defendants first appearance.
371. DDA Wasson failed to request copies of the 911 recordings from law
enforcement.
372. DDA Wasson failed to comply with Crim. P. 16(I)(b)(4) which required the
prosecutor to ensure that a flow of information is maintained between the investigative
personnel and the prosecutors office, sufficient to place all material and information
relevant to the accused in the prosecutors possession.
373. On June 18, 2009, defense counsel sent a letter to the D.A.s office
specifically requesting all related dispatch recordings.

33

374. DDA Wasson failed to produce any 911 recordings to defense counsel in the
Low case.
---3-75. DefendantfailedtoappearataiateriiearingandwasnotfoundcrarrestecL
untilApril20ll.
376. In October 2011, defense counsel filed a motion, again requesting copies of
the 911 recordings.

377. The court granted Defendant Lows motion for discovery.


378. DDA Andrew Hall contacted the Trinidad Police Department regarding the
recordings and was informed the 911 recordings had been destroyed.
379. At a hearing on December 5, 2011, the defense made an oral motion to
dismiss for the prosecutors violation of Crim. P. 16(1).
380. The Court heard arguments from both sides and took the issue under
advisement.
381. On December 16, 2011, Judge Billings issued an order sanctioning the
prosecution for violation of Crim. P. 16(I).
382. The court ruled that failure to produce the 911 tapes was a Crim. P. 16(1)
violation.
383. Because it appeared the 911 tapes may have been exculpatory evidence for
defendant, the court determined the prosecutors failure was also a Due Process violation.
384. The court ordered the prosecution could not make any reference at trial to the
911 calls made to or from dispatch personnel, or to the contents of the 911 calls.
385. In violating Crim. P. 16(I)(a)(1)(IV), Crim. P. 16(I)(b)(l), and Crim. P.
1 6(I)(b)(4), DDA Wasson and DDA Hall violated the following Colorado Rules of
Professional Conduct:

386. Cob. RPC 1.1 provides that a lawyer shall provide competent representation
to a client. Competent representation requires the legal knowledge, skill, thoroughness
and preparation reasonably necessary for the representation.
387. DDA Wasson and DDA Hall represented the People of the State of Colorado
in all cases they handled as DDA.

34

388. The disclosure of evidence to the defense is a fundamental obligation of


every prosecutor under Crim. P. 16(1).

-389. DDAWasson and


disclosures of the 911 recordings to the defendant in the Low case.
390. DDA Wassons and DDA Halls failures were incompetent.
391. By such conduct, DDA Wasson. and DDA Hall violated Cob. RPC 1.1.
392. Cob. RPC 3.4(a) provides that a lawyer may not unlawfully obstruct another
partys access to evidence or unlawfully alter, destroy or conceal a document, or counsel
others to do so.
393. As discussed above, DDA Wasson and DDA Hall failed to comply with
the Crim. P. 16(l)(b)(l) mandatory automatic disclosure requirement.
394. DDA Wassons and DDA Halls failures resulted in destruction of the 911
recordings evidence.
395. DDA Wasson and DDA Hall thereby unlawfully obstructed defendant Lows

access to evidence.
396. By such conduct, DDA Wasson and DDA Hall violated Cob. RPC 3.4(a).
397. Cob. RPC 3.4(c) provides that a lawyer shall not knowingly disobey an
obligation under the rules of a tribunal.
398. DDA Wasson and DDA Hall knew that they had not produced the above
referenced 911 recordings.
399. DDA Wasson and DDA Hall knew that they were obligated to do so per the
Crim. P. 1 6(IXb)(l) mandatory automatic disclosure requirement.
400. DDA Wasson and DDA Hall thereby knowingly disobeyed the rules of the
tribunal.
401. By such conduct, DDA Wasson and DDA Hall violated Cob. RPC 3.4(c).
402. Cob. RPC 3.4(d) states that in pretrial procedure, a lawyer shall not fail to
make a reasonably diligent effort to comply with a legally proper discovery request.

35

403. Although ODA Wasson could have requested a copy of the 911 recordings
.1..
A.
1 J7 4flA rrA TIT............
/1, .LUVY, JJLJt. VV UU i2U.LU LU UU by.
irom law eurorcemen.t any timc aaLa Ji4)iU
..

Wassonru ngall
4
dispatch recordings DDA Wasson failed to obtain a copy of the 911 recordings.
-

--

405. NO person from the prosecutors oce asked law enforcement or dispatchers
to preserve the 911 recordings, and the recordings were later destroyed.
406. Therefore, DDA Wasson failed to make a reasonably diligent effort to
comply with a legally proper discovery request.
407. By such conduct, DDA Wasson. violated Cob. RPC 3.4(d).

408. Cob. RPC 3.8(d) requires that a prosecutor must make timely disclosure to
defense all evidence which tends to negate the guilt of the accused or mitigates the
offense.
409. DDA Wasson and DDA Hall intentionally delayed three years before
requesting evidence which tends to negate the guilt of the accused or mitigates the
offense allegedly committed by Mr. Low.
410. DDA Wassons and DDA Halls extreme delay resulted in destruction of the
evidence.

411. Thus, the disclosure of evidence which tends to negate the guilt of the
accused or mitigates the offense was not timely.
412. By such conduct, DDA Wasson and DDA Hall violated Cob. RPC 3.8(d).

413. Cob. RPC 8.4(d) prohibits a lawyer from engaging in conduct that is
prejudicial to the administration ofjustice.
414. DDA Wasson and DDA Hall failed to request or produce the 911 recordings
in the Low case, and thus failed to comply with the Crim. P. 16(1) and 16(V) mandatory,
automatic disclosure provisions.
DDA Wassons and DDA Halls failures caused the
regarding discovery.
415.

court

to set a hearing

416. DDA Wassons and DDA Halls failures caused the destruction of
exculpatory evidence.

36

417. By such conduct, DDA Wasson and DDA Hall violated Cob. RPC 8.4(d).
418. With regard to the above described conduct, Respondent failed to supervise

People v. Boyd Gross, 10CR28


419. On April 26, 2010, DDA Wasson flied the Complaint and Information
against Boyd Gross alleging Mr. Gross had committed murder, People v. Boyd Gross,
Huerfano County District Court, 10CR28 (the Gross case).
420. Crim. P. 16(fXb) (as published in 2010) required the District Attorneys
Office provide expert disclosures to the defendant no later than 30 days before trial.
421. DDA Wasson violated Crim. P. 1 6(1)(b) because he failed to provide the
defense with the expert disclosure or report of the prosecutions rebuttal expert.
422. Due to a hung jury, the court declared a mistrial.
423. The court ordered a new trial in the Gross case.
424. On January 27, 2011, the defense filed a Motion and Demand for Sanctions
for Failure to Disclose Exculpatory Material and Failure to Provide Timely Discovery.
425. DDA Wasson admitted he violated discovery rules and failed to provide
defense with the disclosure and report of the prosecutions rebuttal expert who testified in
the first trial.
426. On February 17, 2011, the court heard the motions and argument regarding
DDA Wassons failure.
427. The court determined the prosecutors failure warranted a sanction.
428. Judge Appel determined the defense was prejudiced by not receiving the
report.
429. The court ordered that in the upcoming trial, the defense would be given four
extra peremptory challenges during jury selection.
430. In failing to comply with Crim. P. 16(I)(b), former DDA Wasson violated the
following Colorado Rules of Professional Conduct:

37

431. Cob. RPC 1.1 provides that a lawyer shall provide competent representation
to a client Competent representation requires the legal knowledge, skill, thoroughness
and preparation reasonably necessary for the representation.
432. DDA Wasson represented the People of the State of Colorado in all cases he
handled as DDA.
433. The disclosure of evidence to the defense is a fundamental obligation of
every prosecutor under Crim. P. 16(1).
434. DDA Wasson failed to make appropriate and timely expert disclosures to the
defense in the Gross case.
435. DDA Wassons failures were incompetent.

436. By such conduct, DDA Wasson violated Cob. RPC 1.1.


437. Cob. RPC 3.4(a) provides that a lawyer may not unlawfully obstruct another
partys access to evidence or unlawfiuly alter, destroy or conceal a document, or counsel
others to do so.
438. As discussed above, DDA Wasson failed to comply with the Crim. P.
1 6(I)(b) mandatory expert disclosure requirement.
439. t)DA Wasson thereby unlawfully obstructed defendant Grosss access to
evidence, including the expert disclosures and expert report.
440. By such conduct, DDA Wasson violated Cob. RPC 3.4(a).
441. Cob. RPC 3.4(c) provides that a lawyer shall not knowingly disobey an
obligation under the rules of a tribunal.
442. IDDA Wasson knew that he had not produced the above referenced expert
disclosures and expert report.
443. DDA Wasson knew he was obligated to do so per the Crim. P. 16(T)(b)
mandatory expert disclosure requirement.
444. DDA Wasson thereby knowingly disobeyed the rules of the tribunal.
445. By such conduct, DDA Wasson violated Cob. RPC 3.4(c).

38

446. Cob. RPC 8.4(d) prohibits a lawyer from engaging in conduct that is
prejudicial to tue aamimsiration or justice.

-44 DDA Wasson failedto -produce -the- expert-disclosure- for-the-proseeutionsrebuttal expert, and thus failed to comply with the Crim. P. 16(1)(b) expert disclosure
provisions.
448. DDA Wassons failure caused the court to set a hearing regarding discovery
sanctions.
449. By such conduct, DDA Wassonand DDA Hall violated Cob. RPC 8.4(d).
450. With regard to the above described conduct, Respondent failed to supervise
former DDA Wasson.
People v. Ashlee Diliman, 11M533
451. On December 28, 2011, DDA Hall filed the Complaint and Information
against defendant DiUman for child abuse, People v. Ashlee Diliman, Las Animas County
Court, 1 1M533, (the Diliman case).
452. On June 14, 2012, the court granted the defenses Motion for Preservation

and Production of Specific Discovery and Impeachment Informationwhich specifically


requested that DDA Hall produce all exculpatory and impeachment information
regarding the prosecutions witnesses.
453. On June 21, 2012, the defense ified an Amended Motion for Preservation arid

Production of Specific Discovery and Impeachment Informationwhich specifically


requested that DDA Hall produce all exculpatory and impeachment information
regarding the prosecutions witnesses.
454. Respondent and his DDA did not request the following evidence from law

enforcement or emergency dispatch until June 2012:


a) Copy of recording of 911 phone call made on December 12, 2011;
b) Copy of dispatch logs from December 12, 2011;
c) Copy of recording of 911 phone call made on December 13,2011; and
d) Copy of dispatch logs from December 13, 2011.

455. Contrary to the requirements of Crim. P. 16(I) and Crim. P. 16(V), the above

listed evidence was not produced by the D.A.s office to the defense until July 2, 2012.

456. DDA Hall violated Cmii. P. 16(I)(b)(3) because DDA Hall did not attempt to
obtain birth dates and/or criminal histories (impeachment information) on the
39

--

prosecutions witnesses Cassie Dixon and Jamie Pike, until less than 30 days prior to
trial.
yipQ jpc
AiiaU
witnesses is a violation of Crim. P. 16(I)(b)(3).

458. On July 2, 2012, the Ccrrt held a hearing and addressed defense counsels

Amended Motion for Preservation and Production of Specific Discovery and


Impeachment Information.
459. The court granted the defenses Amended Motion and ordered that DDA Hall
the impeachment evidence immediately.
produce
must

460. The court also ordered that DDA Hall must provide the prosecutions expert
disclosures to the defense no later than July 5, 2012.
461. On July 30, 2012, DDA Hail still had not provided the defense with
impeachment information on prosecution witnesses Cassie Dixon and Jamie Pike.
462. DDA Hall also failed to file expert disclosures for experts Dr. Kevin
McClintock, and Dr. Barry Nelson.
463. The defense filed a Request for Sanctions Barring Testimony of Prosecution
Witnesses Cassie Dixon and Janiie Pike; and Request for Sanctions Barring Testimony of
Prosecution Experts Dr. Kevin MeClintock, and Dr. Barry Nelson.
464. A pre-trial readiness conference had been set for that same day, July 30,
2012.
465. Prior to any discussion in court regarding the Motions for Sanctions, DDA
Hall appeared on the record and stated that based on his discussion with defense counsel,
he did not believe the prosecution could win the case.
466. DDA Hall then made an oral motion to dismiss the case against Ms. Dillman.
467. The court granted DDA Halls oral motion to dismiss the case.
468. In representing the People of the State of Colorado, and violating the courts
order regarding experts, DDA Hall violated the following Colorado Rules of Professional
Conduct:

40

469. Cob. RPC 1.1 provides that a lawyer shall provide competent representation
to a client. Competent representation requires the legal knowledge, skill, thoroughness
and preparation reasonably necessary for the representation.
470.
DDA Hail represented the People of the State of Colorado in all cases he
handled as DDA.
471. The disclosure of evidence to the defense is a fundamental obligation of
prosecutor
under Crim. P. 16(1).
every
472. DDA Hall failed to make appropriate and timely expert disclosures to the
defense in the Diliman ease, including witness impeachment information (criminal
histories) and the prosecutions expert disclosures.
473. DDA Halls failures were incompetent.
474. By such conduct, DDA Hall violated Cob. RPC 1.1.
475. Cob. RPC 3.4(a), which provides that a lawyer may not unlawfully obstruct
another partys access to evidence or unlawfully alter, destroy or conceal a document, or
counsel others to do so.

476. As discussed above, DDA Hall failed to comply with the Crim. P. 16(I)(b)
mandatory expert disclosure requirement.
477. As discussed above, DDA Hall failed to comply with the Crim. P. 16(I)(b)
mandatory criminal history (impeachment evidence) disclosure requirement
478. DDA Hall thereby unlawfully obstructed defendant Dillmans access to
evidence.
479. By such conduct, DDA Hall violated Cob. RPC 3.4(a).
480. Cob. RPC 3.4(c) provides that a lawyer shall not knowingly disobey an
obligation under the rules of a tribunal.
481. DDA Hall knew that he had not produced the above referenced expert
disclosures.
482. DDA Hall knew that he had not produced the above referenced criminal
histories for the prosecutions witnesses.

41

483. DDA Hall knew he was obligated to do so per the Crim. P. 16(l)(b)
mandatory disclosure requirements.
-

484. DDAIIaII lew &wa&obligated todoso perthe oisorderuedon


July2,2Ol2.
-

485. DDA Hall thereby knowingly disobeyed the rules of the tribunal.
486. By such conduct, DDA Hall violated Cob. RPC 3.4(c).
487. Cob. RPC 3.4(d) states that in pretrial procedure, a lawyer shall not fail to
make a reasonably diligent effort to comply with a legally proper discovery request.
488. The court granted defense counsels Motion and Amended Motion for
Preservation and Production of Specific Discovery and Impeachment Information.
489. DDA Hall never complied with the courts order and did not provide defense
with impeaehmentJprior convictions evidence for Prosecution Wilnesses Cassie Dixon
and Jamie Pike.
490. As a result, DDA Hall failed to make a reasonably diligent effort to comply
with a legally proper discovery request.
491. By such conduct, DDA Hall violated CoLe. RPC 3.4(d).
492. Cob. RPC 8.4(d) prohibits a lawyer from engaging in conduct that is
prejudicial to the administration ofjustice.
493. As discussed above, DDA Hall failed to comply with Crim, P. 16(J)(b)
mandatory disclosure requirements.
494. The defense had to file a motion for discovery and the court had to set a
heating on the motion regarding discovery.
495. As a result of DDA Halls failures, the resolution of the Diliman case was
substantially delayed.
496. DDA Hall disobeyed the courts orders regarding expert disclosures and
production of criminal histories for the prosecutions witnesses.
497.

By actions, DDA Hall violated Cole. RPC 8.4(d).

42

498. With regard to the above described conduct, Respondent failed to supervise
and/or train DDA Hall.
-

---

--

----

--

---PeopkvPakSa1azar,i1M3Oi

499. July 25, 2011, DDA Hall filed a Complaint against defendant Salazar for
domestic violence, assault, child abuse, and driving without a license, People v. Patrick
Satazar, Las Aninias County Court, 1 1M302 (the Salazar case).
500. The police report provided to the D.A.s office noted the arrest of the
defendant took place in the parking lot of a Walmart.
501. DDA Hail did not ask law enforcement to determine if the Walmart parking
lot had any video surveillance ofthe alleged incident or arrest in Walmarts parking lot.
502. Police reports noted that several people in a nearby restaurant witnessed the
alleged domestic violence and called 911 and reported what they were witnessing.
503. Pursuant to C.R.S. 24-4.1-302 et seq, and C.R.S. 24-4.1-303 et seq, the
Victims Rights Act, DDA Hall was required to contact the victIm before dismissing
the Salazar case.
504. It was DDA Hails policy not to speak personally with any alleged domestic
violence victims.
505. DDA Hall did not speak to the alleged victim in the Salazar case.

506. Respondent did not train DDA Hall regarding compliance with the Victims
Rights Act.
507. Respondent did not supervise DDA Hall to determine if DDA Hall was
complying with the Victims Rights Act.
508. Crim. P. 16(l)(a)(1)(V) and 16(I)(a)(1) (VII) required DDA Hall to provide
the defense a list of witnesses, as well as the criminal histories of all prosecution
witnesses,

509. DDA Hall failed to provide the defense a list of witnesses, as well as the
criminal histories of all prosecution witnesses.
510. On December 2, 2011, defense filed a Motion for Preservation and
Production of Specific Discovery and Impeachment Information.

43

511. The motion specifically requested the criminal histories of all prosecution
witnesses.
2 The Court granted
513. Trial was set for March 26, 2012. Dt)A Hall issued subpoenas to several

witnesses requiring their appearance at trial to testify in the Salazar ease.


514. DDA Hall failed to obtain or disclose witness criminal histories for the
witnesses he had subpoenaed for trial.
515. On March 14, 2012, DDA Hall filed an Amended Motion to Dismiss stating

that the prosecution would not be able to make a prima facie case for the charges listed.
516. DDA Hall violated the Victims Rights Act because be did not contact the
alleged victim before dismissing the Salazar case.
517. DDA Hall violated Crim. P. l6(1)(a)(1)(V) and 16(l)(a)(1)(Vll) with regard
to disclosure of impeachment information on prosecution witnesses.

518. DDA Hall violated the courts order with regard to disclosure of
impeachment iiifonnation on prosecution witnesses.
519. The court granted Halls Amended Motion to Dismiss the case against Mr.

Salazar.

520. In violating Crim. P. 16(1)(a)(l)(V) and 16(1)(a)(l)(Vll), the Victims Rights


Act, and the courts order regarding witness criminal histories, DDA Hall violated the
following Colorado Rules of Professional Conduct:
521. Cob. RPC 1.1 provides that a lawyer shall provide competent representation
to a client. Competent representation requires the legal knowledge, skill, thoroughness
and preparation reasonably necessary for the representation.
522. DDA Hall represented the People of the State of Colorado in all cases he
bandied as DDA.
523. The disclosure of evidence to the defense is a fundamental obligation of
prosecutor
every
under Crun. P. 16(I).
524. DDA Hall failed to determine what evidence should be disclosed to the
defense during discovery in the Salazar case.

44

525. DDA Hall failed to ensure that a flow of information was maintained

between the investigative personnel and the prosecutors office, sufficient to place all
material and information relevant to the accused in the prosecutors possession.
526. DDA Hall failed to timely request prosecution witness names, addresses, and

criminal histories from law enforcement.


527. DDA Hall failed to make appropriate and timely disclosures to the defense
in the Salazar case, including witness impeachment information and witness criminal

histories.
528. DDA Hall failed to contact the alleged victim prior to dismissing the Salazar
case.
529. DDA Hails failures were incompetent.
530. By such conduct, DDA Hall violated Cob. RPC 1.1.

531. Cob. RPC 3.4(a) provides that a lawyer may not unlawfully obstruct another
partys access to evidence or unlawfully alter, destroy or conceal a document, or counsel
others to do so.
532. As discussed above, DDA Hall failed to comply with the Crim. P.
16(I)(a)(l)(V) and 16(I)(a)(l)(VII) mandatory witness disclosure requirements.
533. As discussed above, DDA Hall failed to comply with the courts order
regarding witness criminal history (impeachment evidence) disclosures.
534. DDA Hall thereby unlawThlly obstructed defendant Salazars access to

evidence.
535. By such conduct, DDA Hall violated Cob. RPC 3.4(a).
536. Cob. RPC 3.4(c) provides that a lawyer shall not knowingly disobey an

obligation under the rules of a tribunal.


537. DDA Hall knew that he had not produced the above referenced witness

disclosures.
538. DDA Hall knew that he had not produced the above referenced crimin&
histories for the prosecutions witnesses.

45

539. DDA Hall knew he was obligated to do so per the Crim. P. 16(1)(a)(l)(V)

and 1 6(I)(a)(l)(VII) disclosure requirements.


-540-J)DA-HalIalsolcaew-he-was-obllgatedtodo-so-per-the-eourts order-541. DDA Hall thereby knowingly disobeyed the rules of the tribunal.
542. By such conduct, DDA Hall violated Cob. RPC 3.4(c).

543. Cob. RPC 3.4(d) states that in pretrial procedure, a lawyer shall not fail to
make a reasonably diligent effort to comply with a legally proper discovery request.
544. The court granted defense counsels Motion and Amended Motion for

Preservation and Production of Specific Discovery and Impeachment Information.


545. DDA Hall never complied with the courts order and did not provide the

defense with the mandatory witness disclosures.


546. DDA Hall failed to make a reasonably diligent effort to comply with a legally

proper discovery request.


547. By such conduct, DDA Hall violated Cob. RPC 3.4(d).
548. Cob. RPC 8.4(d) prohibits a lawyer from engaging in conduct that is
prejudicial to the administration ofjustice.

549. As discussed above, DDA Hall failed to comply with Crim. P.


16(I)(a)(l)(V) and 16(I)(a)(1)(Vll) mandatory witness disclosure requirements.
550. The defense had to file a motion for discovery and the court had to set a
hearing on the motion regarding discovery.

551. As a result of DDA Halls failures, the resolution of the Scdazar case was
substantially delayed.
552. DDA Hall disobeyed the courts orders regarding witness disclosures and
production of criminal histories for the prosecutions witnesses.
553.

By his actions, DDA Hall violated Cob. RPC 8.4(d).

554. With regard to the above described conduct, Respondent failed to supervise
and/or train DDA Hall.

46

People v. Mark Camp, 12M197


555. On April 16, 2012, Mi. Camp was arrested for domestic violence.
556. Mr. Camp made his first appearance in court on April 18, 2012.
557. On April 18, 2012, DDA Hall received a police report and the arresting

officers affidavit specifically noting that the officer had taken photos of the victims
injuries.
558. On April 27, 2012, DDA Hall filed his Complaint and Information against
Camp for Assault in the Third Degree, People v. Mark Camp, Las Animas County Court,
12M197 (the Camp case).

559. On August 2, 2012, DDA Hall requested all recordings, phone calls, and 911

tapes from the Trinidad Police Department.


560. Hall did not request copies of the photos of the victim.
561. Pursuant to the Victims Rights Act, DDA Hall was required to contact the
victim before dismissing the Camp case.
562. It was DDA Halls policy not to speak personally with any alleged domestic

violence victims.
563. DDA Hall did not speak to the alleged victim in the Camp case.
564. Respondent did not train DDA Hall regarding compliance with the Victims

Rights Act.
565. Respondent did not supervise DDA Hall to determine if DDA Hall was

complying with the Victims Rights Act.


566. Crim. P. 16(l)(b)(1) (as published in 2012) requires that DDA Hall produce

all photos to the defense within 20 days of Mr. Camps first appearance.
567. Crim. P. 16(lXb)(4) requires the prosecutor to ensure that a flow of
information is maintained between the investigative personnel and the prosecutors
office, sufficient to place all material and information relevant to the accused in the
prosecutors possession.

47

568. Respondent and/or Hail failed to do so and did not request copies of photos
from the Trinidad Pollee Department until more than four months after Mr. Camps first
appearance in court.
569. At a hearing on August 28, 2012, defense counsel noted the prosecutions

failure to comply with Crim. P. 16(lXb)(1) mandatory automatic requirement to disclose


the photos.
570. Judge Billings agreed with the defense and ordered DDA Hall to get the
photos to defense immediately.
571. Hail promised the court he would do so.
572. On August 28, 2012, DDA Hall requested (for the first time) copies of all
photos and videos in evidence from the Trinidad Police Department.
573. On September 13, 2012, DDA Hall filed a Notice of Additional Discovery,

informing defense that copies of one CD with photos was available to defense counsel.
On September 20, 2012, defense ified a Motion for Sanctions based on
DDA Halls violation of Rule 16.
574.

575. On September 24, 2012, Judge Billings held a hearing on the Motion for
Sanctions.
576. The Court noted multiple past cases in his courtroom where the D.A. s office

admitted a discovery violation and then simply dismissed the case before Judge Billings
inquired further into the violation.
577. The court determined DDA Halls failure to comply with Rule 16(1)(b) in the
Camp case was a severe violation and ordered that the photos be excluded at trial.
578. On September 25, 2012, DDA Hall appeared for trial.

579, Defense counsel, Ms. Abudiab, and DDA Hall began jury selection and
questioned potential jurors for approximately seven minutes.
580. Judge Billings then realized he had failed to turn on the voice recorder and

noted that the parties would need to start over again so there would be a proper record of
the proceedings.
581. DDA Hall then became upset and asked if the defense would agree to a

mistrial.
48

581 Ms. Abudiab declined to agree to a mistrial.

-583.--Hail-th n-asked thecour to dismiss-the-case

--

584. The court granted Halls oral motion and dismissed the case against Mr.

Camp.
585. DDA Hail did not contact the alleged victim before dismissing the Camp

case.
586. In violating Crim. P. 16(I)(b)(l), and the Victims Rights Act, DDA Hall

violated the following Colorado Rules of Professional Conduct:


587. Cob. RPC 1.1 provides that a lawyer shall provide competent representation
to a client. Competent representation requires the legal knowledge, skill, thoroughness
and preparation reasonably necessary for the representation.

588. DDA Hall represented the People of the State of Colorado in all cases he
handled as DDA.
589. The disclosure of evidence to the defense is a fundamental obligation of
every prosecutor under Crim. P. 16(I).
590. ODA Hail failed to determine what evidence should be disclosed to the
defense during discovery in the Camp case,

591. DDA Hall failed to ensure that a flow of information was maintained
between the investigative personnel and the prosecutors office, sufficient to place all
material and information relevant to the accused in the prosecutors possession.
592. DDA Hail failed to timely request photos listed in reports by law

enforcement.
593. DDA Hall failed to make appropriate and timely disclosures of the photos to
the defense in the Camp case.
594. DDA Hall failed to contact the alleged victim before dismissing the Camp

case and thus failed to comply with the Victims Rights Act.
595. DDA Halls failures were incompetent.
596. By such conduct, DDA Hall violated Cob. RPC 1.1.
49

597. Cob. RPC 3.4(a) provides that a lawyer may not unlawfully obstruct another
partys access to evidence or unlawfully alter, destroy or conceal a document, or counsel
-

----

-----

-----

--------

others-todo-so.-----

598.

As discussed above, DDA Hall failed to comply with the Crim. P.

16(l)(b)(l) mandatory automatic disclosure requirements.


599. DDA Hall unlawfully obstructed defendant Camps access to photographic
evidence.
600. By such conduct, DDA Hall violated Cob. RPC 3.4(a).
601. Cob. RPC 3.4(c) provides that a lawyer shall not knowingly disobey an
obligation under the rules of a tribunal.
602. DDA Hall knew that he had not produced the above referenced disclosures.
603. DDA Hall knew that he had not produced the above referenced photos.
604. DDA Hall knew he was obligated to do so per the Crim. P. 16(lXb)(l)
mandatory automatic disclosure requirements.
605. DDA Hall knowingly disobeyed the rules of the tribunal.

606. By such conduct, DDA Hail violated Cob. RPC 3.4(c).


607. Cob. RPC 8.4(d) prohibits a lawyer from engaging in conduct that is
prejudicial to the admiiistration of justice.
608. As discussed above, DDA Hail failed to comply with Crini. P. 16(l)(b)(l)
mandatory automatic disclosure requirements.
609. The defense had to file a motion for discovery and the court had to set a
hearing on the motion regarding discovery sanctions.
610. As a result of DDA Halls failures, the resolution of the Camp case was
substantially delayed.
611.

By his actions, DDA Hall violated Cob. RPC 8.4(d).

People v. Mitchell Nadeau, 13M50, and People v Devin McGrath, 13M51

50

612. Tn both cases, Nadeau and McGrath, defendants appeared on March 25,
2013 in county court for advisement.
-

----

--

6i3 Nadeau-wasarresd-for alleged-dnc-dng,People-v.--Mitche1l-Nadeau-Huerfano County Court, 13M50 (the Nadeau case).

614. McGrath was arrested for alleged domestic violence and harassment, People
v. Devin McGrath, Huerfano County Court, 13M51 (the McGrath case).
615. Although County Court Judge Stork normally covers county court
misdemeanors in Huerfano County, on March 25, 2013, District Court Judge Gerbracht
was covering for Judge Stork.
616. Former ADA, Clay MoKisson, appeared for the D.A.s office.
617. In both cases, the defendants appeared in custody, and both defendants
indicated they wanted a public defender.
618. ADA Clay McK.isson made a no offer offer to the public defender with
regard t the defendants Mr. Nadeau and Mr. McGrath.
619. On March 25, 2013, Public Defender Patrick McCarville argued bond on
behalf of Mr. Nadeau.
620. Judge Gerbracht set Mr. Nadeaus and Mr. McGraths next hearing for April
16, 2013, which was the next date when Judge Stork would have the Public Defender
available and present in county court.
621. ADA McKisson noted on Respondents case file that a public defender had
been appointed in both cases.
622. On March 26, 2013, DDA Hall spoke in person with defendants Nadeau and
McGrath, without their counsel present.
623. Hall made plea offers to both Mr. Nadeau and Mr. McGrath and both
defendants accepted the plea offers.
624. In talking to both defendants without their counsel present, Hall violated both
defendants rights under the Sixth Amendment of the United States Constitution, as well
asColo.RPC4.2.
625. On March 27, 2013, Chief Judge Appel was covering for Judge Stork in
county court.
51

626. On that morning, Hall (now promoted from DDA to ADA) filed a Complaint
and Information against both defendants.
627. Hall appeared in court later the same day and asked Judge Appel to call both
cases so the court could accept both plea entries on the record.
628. Both defendants appeared without counsel and the court accepted the pleas.
629. After public defender MeCarville received word his clients had pled guilty
while he was not present, McCarville contacted ADA Hall and requested both cases be
brought up on Judge Storks April 2, 2013 docket.
630. On April 2, 2013, Judge Stork heard arguments from ADA Hall, DDA
Wiggins, and public defender McCarville. Judge Stork determined:
a) ADA McKisson made a no offer offer to McCarville on March 25,
2013;
b) District Court Judge Gerbracht appointed the public defender for both
defendants on March 25, 2013, and Judge Gerbracht set the next
appearance for April 16 because that was the next date the public
defender would be in county court;
c) Both defendants were still in custody and their counsel was not present
at the time they met with ADA Hall; and
d) Therefore, both pleas must be withdrawn.
631. Thereafter, ADA Hall filed Motions to Dismiss both the Nadeau case and the
McGrath case based on untenable prosecution.
632. Judge Stork reviewed transcripts from the two prior hearings, March 25 and
March 27 (which he had not been present for).
633, Judge Stork did not sign the Motions to Dismiss, and instead set both
Motions to Dismiss for hearing.
634. At the hearing on the Motions to Dismiss, Judge Stork told ADA Hall that he
would not sign the proposed order based on untenable prosecution.
635. Judge Stork stated he would only sign a proposed dismissal based on grounds
related to what had truly occurred in the case, i.e., prosecutorial misconduct.
52

636. On May 1, 2013, ADA Hall ified Motions to Dismiss For Prosecutorial
Misconduct, in both the Nadeau and McGrath cases.
637. Judge Stork accepted and signed both Motions to Dismiss For Prosecutorial
Misconduct.
638. As of May 13, 2013, Respondent had not seen or reviewed either of Halls
Motions to Dismiss For Prosecutorial Misconduct.
639. As of May 13, 2013, Respondent had not spoken with Hall regarding either
of Halls Motions to Dismiss For Prosecutorial Misconduct.
640. After undersigned counsel sent copies of the Motions to Dismiss For
Proseeutoriai Misconduct to counsel for Respondent, Respondent talked with Hall about
the Nadeau and McGrath cases.
641. Respondent told ADA Hall he did not believe Hall had done anything wrong
in either case.
642. Cob. RPC 5.1(b), which provides that a lawyer having direct supervisory
authority over another lawyer shall make reasonable efforts to ensure that the other
lawyer conforms to the Rules of Professional Conduct.
643. In committing prosecutorial misconduct, ADA Hall violated the following
Colorado Rules of Professional Conduct:
644. Cob. RPC 4.2 prohibits a lawyers communication with a person represented
by counsel regarding the subject of the representation.
645. ADA Hall spoke to defendants Nadeau and McGrath while both were
represented by counsel and offered them plea bargains.
646. Neither defendants counsel was present when ADA Hall offered the pleas.

647. By his conduct, ADA Hall violated Cob. RPC 4.2.


648. Cob. RPC 8.4(d) prohibits a lawyer from engaging in conduct that is
prejudicial to the administration of justice.
649. As discussed above, DDA Hall failed to comply with the Sixth Amendment
to the United States Constitution.

53

650. The defense had to set a hearing to attempt to withdraw the ifiegal pleas.
651. The court had to set a hearing and order that both please be withdrawn.
652. As a result of DDA Halls misconduct, the resolution of the Nadeau and
McGrath cases were substantially delayed.
653. By such conduct, DDA Hall violated Cob. RPC 8.4(d).
654. With regard to the above described conduct, Respondent failed to supervise

and/or train ADA Hall.


655. Respondent ralifted ADA Halls actions.

656. Respondent thereby failed to make reasonable efforts to ensure that Hall
conformed to the Rules of Professional Conduct.
CLAIM XXVII
[Supervising Lawyers Failure to Make Reasonable Efforts to Ensure that Other
Lawyer Conforms to the Rules of Professional Conduct Cob. RPC 5.1(b)1

657. Paragraphs 1 through 656 are incorporated herein as if fully set forth.
658. Cob. RPC 5.1(b), which provides that a lawyer having direct supervisory

authority over another lawyer shall make reasonable efforts to ensure that the other
lawyer conforms to the Rules of Professional Conduct.
659. With regard to the above described conduct, Respondent failed to supervise

and/or train DDA Hall.


660. Respondent failed to make reasonable efforts to ensure that Hall conformed
to the Rules of Professional Conduct.
661. By such conduct, Respondent violated Cob. RPC 5.1(b).

WHEREFORE, the complainant prays at the conclusion of this Complaint.


CLAIM XXVIII
[Ratification of Another Lawyers Violation of the Rules of Professional ConductCob. RPC 5.1(c)(1) as to People v. Mitchell Nadecu, 13M50, and People v. Devin
McGrath, 13M51 cases only]
662. Paragraphs I through 661 are incorporated herein as if fully set forth.
54

663. Cob. RPC 5.l(e)(l) provides that a lawyer shall be responsible for another

lawyers violation of the Rules of Professional Conduct if the lawyer, with knowledge of
-the -conducl-ratifies-the-conduct

--

664. Respondent became aware of ADA Halls prosecutorial misconduct in


People v. Mitchell Nadeau, 13M50, and People v. Devin McGrath, 13M51, only after
undersigned counsel sent the motions and orders related to prosecutorial misconduct to
Respondents counsel.
665. Respondent thereacr spoke to ADA Hall and ratified Halls conduct.
666. Respondent told Hall that Hall had acted properly in the McGrath and
Nadeau cases.
667. By such conduct, Respondent violated Cob. RPC 5.l(c)(l).
WHEREFORE, the complainant prays at the conclusion of this Complaint.
People v. B.S., 12JD12

668. On April 4, 2012, DDA Wiggins filed a Petition in Delinquency regarding


juvenile, B. S., related to the juveniles alleged felony intimidation of a witness or victim,
People v. .B.S., Las Animas County District Court, 12JD12 (the BS case).
669. The juvenile was also involved in a companion case, 123Db, for alleged
misdemeanor third degree assault.

670. At a hearing on May 18,2012, the court appointed a Guardian Ad Litem and
ordered DDA Wiggins to provide all discovery to the Guardian Ad Litem.
671. Per Crim. P. 16(I)(a)(1)(V) and 16(1)(a)(l)(V1I), DDA Wiggins was required
to provide the defense with a list of prosecution witnesses, as well as potential
impeachment information, including any witness criminal history.
672. DDA Wiggins failed to comply with the Crim. P. 16(I)(a)(l)(V) and
16(lXa)(l)(VII) mandatory automatic disclosure requirements.
673. On May 21, 2012, the defense ified a Motion for Preservation and Production
of Specific Discovery and Impeachment Information,

55

674. Judge Billings granted the Motion, which specifically requested all
prosecution witness impeachment information and witness criminal histories.
&75. -On June 7,2Oi2DDAHallrequested,-for-the firsttime-a-dte-of-birth-foreach of the prosecutions witnesses, so he could determine each witness criminal history.
676. DDA Hall did so via a letter to the school where the witnesses attended high
school.

677. On June 18, 2012, the defense filed a Motion for Sanctions, alleging that
DDA Wiggins failed to comply with Crim. P. 16(l)(a)(l)(V) and 16(I)(a)(l)(VII).
678. The court set the Motion for hearing to occur on June 21, 2012.
679. On June 21, 2012, Respondent filed a Notice of Additional Discovery, listing
several items of evidence, including witness criminal histories, a detailed CAD
(recorded communications) report, and a CD attached to the CAD report.
680. On June 21, 2012, before the court issued a ruling on the Motion for
Sanctions, the defense agreed to withdraw its Motion for Sanctions if DDA Wiggins
agreed to dismiss case 1231)12 against defendant B.S.
681. The defense then withdrew the Motion for Sanctions, and DDA Wiggins
dismissed the case against defendant B.S.
682. In violating Crim. P. 16(I)(a)(1)(V) and 16(I)(a)(l)(Vll), and the courts
order regarding discovery, DDA Wiggins violated the following Colorado Rules of
Professional Conduct:
683. Cob. RPC 1.1 provides that a lawyer shall provide competent representation
to a client. Competent representation requires the legal knowledge, skill, thoroughness
and preparation reasonably necessary for the representation.
684. DDA Wiggins represented the People of the State of Colorado in all cases
she bandied as DDA.
The disclosure of evidence to the defense is a fundamental obligation of
every prosecutor under Crim. P. 16(I).
685.

686. DDA Wiggins failed to determine what evidence should be disclosed to the
defense during discovery in the B.S. case.

56

687. DDA Wiggins failed to ensure that a flow of information was maintained
between the investigative personnel and the prosecutors office, sufficient to place all
material and information relevant to the accused in the prosecutors possession.
688. DDA Wiggins failed to timely request prosecution wilness names, addresses,
and criminal histories from law enforcement.
689. DDA Wiggins failed to make appropriate and timely disclosures to the
defense in the BS. case, including witness name and address information, and witness
impeachment information such as criminal histories for the witnesses.
690. DDA Wigginss failures were incompetent.
691. By such conduct, DDA Wiggins violated Cob. RPC 1.1.
692. Cob. RPC 3.4(a) provides that a lawyer may not unlawfully obstruct another
partys access to evidence or unlawfully alter, destroy or conceal a document, or counsel
others to do so.
693. As discussed above, DDA Wiggins failed to comply with the Crim. P.
16(l)(a)(1)(V) and 16(I)(a)(l)(VII) mandatory witness disclosure requirements.
694. As discussed above, DDA Wiggins failed to comply with the courts order
regarding witness criminal history (impeachment evidence) disclosures.
695. DDA Wiggins thereby unlawfully obstructed defendant B.S.s access to
evidence.
696. By such conduct, DDA Wiggins violated Cob. RPC 3.4(a).
697. Cob. RPC 3.4(c) provides that a lawyer shall not knowingly disobey an
obligation under the rules of a tribunal.
698. DDA Wiggins knew that she had not produced the above referenced witness
disclosures.
699. DDA Wiggins knew that she had not produced the above referenced criminal
histories for the prosecutions witnesses.
700. DDA Wiggins knew she was obligated to do so per the Crim. P.
16(I)(a)(l)(V) and 16(I)(a)(l)(VII) disclosure requirements.

701. DDA Wiggins also knew she was obligated to do so per the courts order.
57

I,

702. DDA Wiggins thereby knowingly disobeyed the rules of the tribunal.
-703. By-such-eonduet,-DDA-Wiggins-violated-Col& RPC3;4(e).

---

704. Cob. RPC 3.4(d) states that in pretrial procedure, a lawyer shall not fail to
make a reasonably diligent effort to comp by with a legally proper discovery request.
705. The court granted defense counsels Motion for Preservation and Production

of Specific Discovery and Impeachment Information.


706. DDA Wiggins never complied with the courts order and did not provide the
defense with the mandatory witness disclosures.
707. As a result, DDA Wiggins failed to make a reasonably diligent effort to
comply with a legally proper discovery request.
708. By such conduct, DDA Wiggins violated Cob. RPC 3.4(d).
709. Cob. RPC 8.4(d) prohibits a lawyer from engaging in conduct that is
prejudicial to the administration ofjustice.
710. As discussed above, DDA Wiggins failed to comply with Crim. P.
16(I)(a)(l)(V) and 16(l)(a)(l)(VTI) mandatory witness disclosure requirements.
71 1. The defense had to ifie a motion for discovery and the court had to set a
heaiing on the motion regarding discovery.
712. As a result of DDA Wigginss failures, the resolution of the B.S. case was
substantially delayed.
713. DDA Wiggins disobeyed the courts orders regarding witness disclosures
and production of criminal histories for the prosecutions witnesses.
714.

By her actions, DDA Wiggins violated Cob. RPC 8.4(d).

715. With regard to the above described conduct, Respondent failed to supervise
and/or train DDA Wiggins.

People v. Harvey Quintana, 12M75


716. On March 30, 2012, Respondents office received notice of the arrest of
defendant Quintana related to alleged domestic violence.
5-8

717. On April 4, 2012, Respondents office filed the Peoples Complaint and
Information against Mr. Quintana, People v. Harvey Quintana, Huerfano County Court,
1-2M7-5-fthe-Qu1ntana-case-----------------

--------

718. On April 23, 2012, the defense filed a Motion for Discovery of Impeachment
information.
719. On June 13, 2012, all parties appeared for a jury trial. During jury selection,
a person in the gallery began shouting accusatory statements regarding the defendant and
the court therefore declared a mistrial.
720. Trial was reset for August 15, 2012. As the parties were leaving the
courtroom, the victim in the Quintana case approached DDA Wiggins.
721. During the conversation, the victim informed DDA Wiggins that she had
been on cocaine at the time the defendant allegedly beat her.
722. Per Crim. P. 16(I)(a)(2) the victims statement was information that tends to
negate the guilt of the accused as to the offense charged or would tend to reduce the
punishment therefor.
723. DDA Wiggins failed to timely disclose the victims statement to the defense.
724. On August 15,2012, all parties appeared for trial.
725. During pre-trial discussion, DDA Wiggins revealed to the court that the
victim had made the statement regarding cocaine use at the time of the alleged domestic
violence.
726. Judge Billings admonished DDA Wiggins for her failure to abide by Crim. P.
16, and her violation of the defendants right to Due Process and access to exculpatory
statements.
727. The court then ruled that the discovery violation was so severe that dismissal
of the ease was the appropriate sanction,
728. The court orally dismissed the ease on the record.
729. Tn violating Crim. P. 1 6(f)(a)(2), DDA Wiggins violated the following
Colorado Rules of Professional Conduct:

59

730. Cob. RPC 1.1 provides that a lawyer shall provide competent representation
to a client. Competent representation requires the legal knowledge, skill, thoroughness
and preparation reasonably necessary for the representatloit
731. DDA Wiggins represented the People of the State of Colorado in all cases
they handled as DDA.
732. The disclosure of evidence to the defense is a fundamental obligation of
every prosecutor under Crim. P. 16(1).
733. DDA Wiggins failed to make appropriate and timely disclosures to the
defendant in the Quintana case, including the alleged victims statement which tends to
negate the guilt of the defendant.
734. DDA Wigginss failures were incompetent.
735. By such conduct, DDA Wiggins violated Cob. RPC 1.1.
736. Cob. RP 3.4(a) provides that a lawyer may not unlawfully obstruct another
partys access to evidence or unlawfully alter, destroy or conceal a document, or counsel
others to do so.
737. As discussed above, DDA Wiggins failed to comply with the Crim. P.
16(tXa)(2) disclosure requirement.
738. DDA Wiggins did not inform the defense of a statement that tends to
negate the guilt of the accused as to the offense charged or would tend to reduce the
punishment therefor until two months after DDA Wiggins heard the statement.
739. DDA Wiggins thereby unlawfully obstructed defendant Quintanas access to
evidence.
740. By such conduct, DDA Wiggins violated Cob. RPC 3.4(a).
741. Cob. RPC 3.4(c) provides that a lawyer shall not knowingly disobey an
obligation under the rules of a tribunal.
742. DDA Wiggins knew that she had not produced the victims exculpatory
statement to the defense.
743. DDA Wiggins knew that she was obligated to do so per the Crim. P.
16(I)(a)(2) disclosure requirement.

60

744. DDA Wiggins thereby knowingly disobeyed the rules of the tribunal.

745. By such conduct, DDA Wiggins violated Cob. RPC 3.4(c).


746. Cob. RPC 3.8(d) requires that a prosecutor must make timely disclosure to

defense all evidence which tends to negate the guilt of the accused or mitigates the

offense.

747. DDA Wiggins received the statement from the victim on June 13, 2012.
748. The victims statement was evidence which tends to negate the guilt of the
accused or mitigates the offense.
749. Crim. P. l6(I)(a)(2) and 16(V) state that disclosure of evidence which tends
to negate the guilt of the accused as to the offense charged, or would tend to reduce the
punishment therefor, is mandatory and automatic.
750. DDA Wiggins intentionally delayed two months, until August 15, 2012 (the

trial date), before revealing to the defendant and to the court evidence which tended to
negate the guilt of the accused or mitigates the offense.
751. DDA Wiggins intentionally failed to timely disclose evidence which tends to
negate the guilt of the accused or mitigates the offense.
752. By such conduct, DDA Wiggins violated Cob. RPC 3.8(d).
753. Cob. RPC 8.4(d) prohibits a lawyer from engaging in conduct that is

prejudicial to the administration ofjustice.

754. DDA Wiggins failed to produce the victims statement in the Quintana case,
until two months after she received it, and thus failed to comply with the Crini. P. 16(I)
and 16(V) mandatory, automatic disclosure provisions.
755. DDA Wigginss failure caused the defendant and the court to prepare for and
appear for trial.
756. DDA Wigginss failure caused delay of the resolution of the Quintana case.
757. By such conduct, DDA Wiggins violated Cob. RPC 8.4(d).

758. With regard to the above described conduct, Respondent failed to supervise
and/or train DDA Wiggins.

61

People v. M, 123D27
759. On April 18, 2012, DDA Wiggins received a Trinidad Police Department

auto shop.

760. The fights were recorded by several witnesses via phone recording devices.
761. Recordings of the fights were sent to students at 3.M.s school while the
fights were occurring.
762. A teacher saw students watching the fight on a phone and confiscated the
phone.
763. The police report given to DDA Wiggins indicated a photo log was attached,
but did not indicate whether police had obtained a copy of the video of the fight.
764. Neither Respondent, nor DDA Wiggins asked law enforcement to obtain a
copy of the video ofthe fight.
765. On May 30, 2012, DDA Wiggins filed a Petition for Delinquency on 3. M.
alleging the juvenile engaged in disorderly conduct, People v. JM., Las Animas County
District Court, 1231)27 (the J.M. case).
766. Crim. P. 16(lXb)(1) (as published in 2012) requires that DDA Wiggins
provide evidence, such as video, to the defense within 20 days of the juveniles first
appearance.
767. As of July 22, 2012, DDA Wiggins had failed to request a copy of the fight
club video from law enforcement, and failed to provide any copy of the video of the
fight to the defense, in violation of the Crim. P. 16(I)(b)(1) mandatory automatic
disclosure requirements.
768. On July 23, 2012, DDA Wiggins, for the first time, sent a letter to the
Trinidad Police Department requesting a copy of the video of the fight allegedly
involving 3.M.
769. Neither Respondent, nor DDA Wiggins obtained a copy of the fight club
video from law enforcement.
770. DDA Wiggins failed to comply with Crim. P. 16(I)(b)(4) which required
prosecution to ensure that a flow of information is maintained between the investigative

62

personnel and the prosecutors office, sufficient to place all material and information
relevant to the accused in the prosecutors possession.
--

fli:
enforcement, DDA Wiggins also failed to provide defense a copy of the video of the
fight
772. On August 31, 2012, all parties appeared for jury trial.
773. DDA Wiggins stated on the record that she had several witnesses to call,
including three teachers and the principal from J.M.s school, waiting outside the
courtroom.
774. Defense counsel raised the discovery violation and stated that the defense
never received any video of the fight.
775. Defense counsel asked that as a sanction, the video be excluded and that no

witness could testify regarding the video.


776. The prosecutions witness testimony was all based on their viewing of the
fight club via video.
777. Defense asked that all testimony based only on a viewing of the video also be
excluded. The Court granted defense counsels requests.
778. DDA Wiggins then asked for a recess so she could dismiss her witnesses
waiting outside. The court granted the request
779. DDA Wiggins then re-entered the courtroom, and on the record requested
that the case against J.M. be dismissed.
780. The court granted her request and dismissed the case.
781. In violating Crim. P. 16(I)(b)(1),
Colorado Rules of Professional Conduct:

DDA Wiggins violated the following

782. Cob. RPC 1.1 provides that a lawyer shall provide competent representation
to a client. Competent representation requires the legal knowledge, skill, thoroughness
and preparation reasonably necessary for the representation.
783. DDA Wiggins represented the People of the State of Colorado in all cases
she handled as DDA.

63

784. The disclosure of evidence to the defense is a fundamental obligation of


every prosecutor under Crim. P. 16(1).
defense during discovery in the JM. case.
78. DDA Wiggins failed to ensure that a flow of information was maintained
between the investigative personnel and the prosecutors office, sufficient to place all
material and information relevant to the accused in the prosecutors possession.
787. DDA Wiggins failed to timely request a copy of the video of the fight club
discussed in reports by law enforcement, and relied on by the prosecutions witnesses.
788. DDA Wiggins failed to make appropriate and timely disclosures of the video
to the defense for the juvenile in the JM case.
789. DDA Wigginss failures were incompetent.
790. By such conduct, DDA Wiggins violated Cob. RPC 1.1.
791. Cob. RPC 3.4(a) provides that a lawyer may not unlawfully obstruct another
partys access to evidence or unlawfully alter, destroy or conceal a document, or counsel
others to do so.
792. As discussed above, ODA Wiggins failed to comply with the Crim. P.
16(I)(b)(l) mandatory automatic disclosure requirements.
793. DDA Wiggins did not instruct law enforcement to get her a copy of the fight
club video, and thereby failed to ensure that a flow of information was maintained
between the investigative personnel and the prosecutors office, sufficient to place all
material and information relevant to the accused in the prosecutors possession.
794. DDA Wiggins failed to make a copy of the fight club video available to the
defendant.
795. DDA Wiggins thereby unlawfully obstructed juvenile J.M.s access to

evidence.
796. By such conduct, DDA Wiggins violated Cob. RPC 3.4(a).
797. Cob. RPC 3.4(c) provides that a lawyer shall not knowingly disobey an
obligation under the rules of a tribunal.

64

798. DDA Wiggins knew that she had not produced the above referenced
disclosures.
--

--799 DDA -Wiggins lrnew-that-she-had-not-produce&theaboveeferencedfight


club video.

--

--

800. DDA Wiggins knew she was obligated to do so per the Crim. P. 16(i)(b)(l)
mandatory automatic disclosure requirements.
801. DDA Wiggins thereby knowingly disobeyed the rules of the tribunal.
802. By such conduct, DDA Wiggins violated Cob. RPC 3.4(c).
803. Cob. RPC 8.4(d) prohibits a lawyer from engaging in conduct that is
prejudicial to the administration ofjustice.
804. As discussed above, DDA Wiggins failed to comply with Crim. P.
16(IXb)(l) mandatory automatic disclosure requirements.
805. As a result of DDA Wigginss failures, the juvenile, defense counsel, and
the court had to prepare for and appear at trial.
806. As a result of DDA Wigginss failures, teachers and the principal at J.M.s
school unnecessarily took time off work to appear as witnesses and testifS at trial.
807. As a result of DDA Wigginss failures, the resolution of the IM case was
substantially delayed.
808.

By her actions, DDA Wiggins violated Cob. RPC 8.4(d).

809. With regard to the above described conduct, Respondent failed to supervise
and/or train DDA Wiggins.

People v. Gaiy Lensky, 12M254


810. On October 2, 2012, DDA Wiggins and DDA Hall received a Huerfano
County Sheriffs Office Affidavit for Arrest WaITant alleging that Mr. Lensky had
attacked a neighbor regarding a land dispute.
811. On October 10, 2012, Mr. Leusky was arrested for alleged third degree
assault.

65

812. On October 17, 2012, DDA Wiggins ified a Complaint against Mr. Lensky
for alleged Third Degree Assault, Menacing, and Harassment, People v. Gcny Lensky,
Huerfano County Court, 12M254 (the Lensky case).
813. Mr. Lensky represented himself pro Se.
814. Reports from law enforcement indicated that the alleged assault had been
recorded by another neighbor with a camera phone.
815. On October 19, 2012, pro se Defendant Mr. Lensky made his first
appearance in court.
816. Crim. P. 16(I)(a)(l)(.[V) and Crim. P. 16(1)(b)(l) (as amended after July 1,
2012) required the prosecutor to produce to the defense all books, papers, documents,
photographs or tangible objects held as evidence in connection with the case, within 21
days of the defendants first appearance.
817. DDA Wiggins failed to comply with the mandatory, automatic disclosures
required by Crim. P. 16(lXb)(1) because she did not produce law enforcement reports to
the defendant within 21 days of the defendants first appearance.
818. Crim. P. 16(I)(b)(4) requires the prosecutor to ensure that a flow of
information is maintained between the investigative personnel and Respondents office,
sufficient to place all material and information relevant to the accused in the prosecutors
possession.
819. DDA Wiggins failed to request that law enforcement obtain a copy of the
video of the alleged assault until after pro se Defendant Lensky filed a motion on
December 28, 2012 requesting discovery.
820. DDA Wiggins failed to ensure that a flow of information was maintained
between the investigative personnel and the prosecutors office sufficient to place all
material and information relevant to the accused in the prosecutors possession.
821. The Lenslcy case was set for a jury trial, to occur on January 22, 2013.
822. DDA Wiggins failed to obtain a complete copy of all law enforcement
reports until January 16, 2013 (seven days before trial).
823. The final pre-trial motions hearing occurred on January 16,2013.
824. DDA Wiggins appeared for the pre-trial motions hearing and then filed a
motion to dismiss the case against Mr. Lensky because, The District Attorneys Office
66

was unable to provide the police reports to Mr. Lensky until January 15, 2013, 89 days
after Mr. Lenskys first appearance, and 43 days after Mr. Leusky requested discovery in.
his case.
825. DDA Wiggins stated in the motion to dismiss, The People want to assure
Mr. Lensky that we are not willing to ignore his rights by failing to abide by the Rules of
Criminal Procedure, and therefore feel that this case cannot go forward.
826. The Court granted her request and dismissed the case.
827. Tn failing to comply with Crim. P. 16(1)(a)(l)(IV), Crim. P. 16(I)(b)(1), and
Crim. P. 16(lXb)(4), DDA Wiggins violated the following Color&Io Rules of
Professional Conduct:
828. Cob. RPC 1.1 provides that a lawyer shall provide competent representation
to a client. Competent representation requires the legal knowledge, skill, thoroughness
and preparation reasonably necessary for the representation.
829. The disclosure of evidence to the defense is a fundamental obligation of
every prosecutor under Crini. P. 16(1).
830. DDA Wiggins failed to determine what evidence should be disclosed to the
defendant during discovery in the Lensicy case.
831. DDA Wiggins failed to make appropriate and timely disclosures to the
defendant in the Lensky case, including complete copies of all law enforcement reports.
832. DDA Wiggins failures were incompetent.
833. By such conduct, DDA Wiggins violated Cob. RPC 1.1.
834. Cob. RPC 3.4(a) provides that a lawyer may not unlawfully obstruct another
partys access to evidence or unlawfhlly alter, destroy or conceal a document, or counsel
others to do so.
835. DDA Wiggins failed to request that law enforcement copy the alleged assault
video until after the defendant filed a motion for discovery.
836. DDA Wiggins failed to obtain a complete copy of all law enforcement
reports until one week before trial.

67

837. DDA Wiggins failed to timely produce evidence to the defendant, including a
copy of the video of the alleged incident and a complete copy of all law enforcement
reports.
838. DDA Wiggins thereby unlawfully obstructed defendant Lenskys access to
evidence.
839. By such conduct, DDA Wiggins violated Cob. RPC 3.4(a).
840. Cob. RPC 3.4(c) provides that a lawyer shall not knowingly disobey an
obligation under the rules of a tribunal.
841. DDA Wiggins knew that she had not produced the video of the alleged
assault, or law enforcement reports to Defendant Lenaky.
842. DDA Wiggins knew that she was obligated to do so per the Crim. P.
16(I)(b)(l) mandatory automatic disclosure requirement.
843. DDA Wiggins thereby knowingly disobeyed the rules of the tribunal.
844. By such conduct, DDA Wiggins violated Cob. RPC 3.4(c).
845. Cob. RPC 8.4(d), which prohibits a lawyer from engaging in conduct that is
prejudicial to the a1ministration of justice.
846. DDA Wiggins failed to comply with Crim. P. 16(I)(a)(l)(IV), Crim. P.
16(I)(b)(l), and Crim. P. 16(I)(b)(4).
847. DDA Wigginss dismissed the case based on her own failures.
848. DDA Wigginss failures harmed the court by causing waste of judicial time
and resources.
849. DDA Wigginss failures harmed the Defendant and the alleged victim by
causing waste of the Defendants and alleged victims time and resources.
850. DDA Wigginss failures harmed law enforcement by causing waste of law
enforcement time and resources.

851. By such conduct, DDA Wiggins violated Cob. RPC 8.4(d).


CLAIM XXIX

68

Supervising Lawyers Failure to Make Reasonable Efforts to Ensure that Other


Lawyer Conforms to the Rules of Professional Conduct Cob. IWC 5.1(b)]
--

i52. Pragraphsi though 8reoratedkereasiithllysetiorth.

853. Cob. RPC 5.1(b) states that a lawyer having direct supervisory authority

over another lawyer shall niake reasonable efforts to ensure that the other lawyer
conforms to the Rules of Professional Conduct.
854. With regard to the above described conduct by DDA Wiggins, Respondent

failed to supervise and/or train Dt)A Wiggins.


855. Respondent failed to make reasonable efforts to ensure that Wiggins

conformed to the Rules of Professional Conduct.


856. By such conduct, Respondent violated Cob. RPC 5.1(b).

WHEREFORE, the People pray that Respondent be found to have engaged in


misconduct under C.R.C.P. 251.5 and the Colorado Rules of Professional Conduct as
specified above; Respondent be appropriately disciplined for such misconduct;
Respondent be required to take any other remedial action appropriate under the
circumstances; and Respondent be assessed the costs of this proceeding.
DATED this 12th day of June, 2014.

Respectfhlly submitted,

Enistofco, #33100
Assistant Regulation Counsel
James C. Coyle, #14970
Regulation Counsel
Attorneys for Complainant

69

4.
K

CERTIFICATE OF SERVICE
-

--

was placed in the United States mail, postage prepaid, this


to:
Alexander R. Rothrock, Esq.
Sara Van Deusen
Burns, Figa & Will
6400 S. Fiddlers Green Circle Suite 1000
Greenwood Village, CO 80111

th
12

day of June, 2014, and addressed

SUPREME COURT, STATE OF COLORADO


ORIGINAL PROCEEDING IN DISCIPLINE BEFORE THE
PRESIflllOSCWLINARYiUIE_
1300 Broadway, Suite 250
Denver, Colorado 80203

FILED
4
,
20
AUGDI
RESfDp1; MSCJPLfi
JUD(:r.
UPRjE COURT OF
COLORA

Complainant:
THE PEOPLE OF THE STATE OF COLORADO

ACOURT USE ONLY A


Respondent:
FRANCISCO E. RUYBALID W, #18448

Case Number:

Erin Robson Kristofco, #33100


Assistant Regulation Counsel
James C. Coyle, #14970
Regulation Counsel
Attorneys for Complainant
1300 Broadway, Suite 500
Denver, Colorado 80203

14 PDJ 064

Telephone: (303) 928-7911


Fax No.: (303) 501-1141
Email: E.Kristofco@csc.state.co.us
COMPLAINT
THIS COMPLAINT is filed pursuant to the authority ofCR.C.P. 251.9 through 251.14,
and it is alleged as follows:
Jurisdiction
1. The Respondent has taken and subscribed the oath of admission, was admitted to the bar
of this Court on April 27, 1989, and is registered upon the official records of this Court,
registration no. 18448. He is subject to the jurisdiction of this Court in these disciplinary
proceedings. The Respondents registered business address is 200 E. First St. #302, Trinidad,
CO 81082.
General Allegations
2. During all times relevant to the matters pled below, Respondent was and is the elected
District Attorney for the Third Judicial District, which includes Las Animas County and
Huerfano County.
I

People v. Jeremiah D. Hall, case no. 13CR42


a theft.
3. On about May 20, 2013, the Huerfano County Sheriff received a report of
4. The alleged defendant had lived on the viciims property and worked for the
victim/owner.
a
5. Law enforcement interviewed the victim and defendant, and provided Respondent with
defendant.
copy of the affidavit supporting arrest of the
6. On June 5, 2013, Respondents Assistant District Attorney (ADA), Andrew Hall, filed
a complaint and information charging defendant Jeremiah Hall with theft, C.R.S. 18-4-401(1),
(2)(c) (a class four felony), People v. Jeremiah D. Hall, Huerfano County District Court,
13 CR42 (the Jeremiah Hall case).
-

7. The defendant picked up 13 pages of discovery on June 5, 2013, including an affidavit by


as
a Huerfano County sheriffs deputy regarding the items stolen and the value of items, reported
by the victim.
8. The defendants attorney filed a motion for bill of particulars on July 5, 2013, which
requested more specific information related to the items stolen.
9. Neither Respondent, nor his ADA contacted the victim to request additional information
regarding the stolen items.
10. The victim later called Respondents office and provided names of several witness who
could confirm the theft of the items at issue.
11. Under-sheriff Corey Daniels attempted to contact Respondent and his ADA regarding
evidence indicating the defendant was responsible for the theftincluding information that the
defendant admitted he had taken a refrigerator from the victim, and the defendant returned
several horse blankets, bridles and bits to the Huerfano County Sheriffs Office.
12. ADA Hall flied a motion to dismiss without prejudice on September 26, 2013 because,
the evidence at this time is insufficient to prove guilt beyond a reasonable doubt.
13. Respondents ADA dismissed the Jeremiah Hall case before attempting to contact law
enforcement to obtain relevant evidence regarding the alleged theft.
14. ADA Hall failed to comply with Crint P. 1 6(I)(b)(4) which required prosecution to
ensure that a flow of information is maintained between the investigative personnel and the
prosecutors office, sufficient to place all material and information relevant to the accused in the
prosecutors possession.
2

15. Upon learning that Respondent had dismissed the case, the victim, Mr. Joe Kancilia,
called ADA Hall to object to dismissal of the case.

i6;-The-victirn and-ADA-Hail argued-aboutwhhad occurreidudngthependey of the


case.

17. When the victim asked why ADA Hall had dismissed the case, ADA Hall told the
victim, Im in charge and I can do what I want to do. The victim has no say in what happens.
18. In correspondence with the Office of Attorney Regulation Counsel, Respondent stated he
did not supervise ADA Hall on any cases unless they were high profile cases.
19. The Jeremiah Hall case was not a high profile case.
20. With regard to the above described conduct, Respondent failed to supervise and/or train
ADA Hall.
21. Respondent failed to make reasonable efforts to ensure that ADA Hall conformed to the
Rules of Professional Conduct.
People v. Nicole Nunez. case no. 13CR27
22. Ms. Nunez was arrested on January 30, 2013, and advised the next day.
23. On February 8, 2013, Respondent filed a Complaint and Information against Ms. Nunez.
including three counts of distribution of a controlled substance schedule II, C.R.S. 18-18405(1), (2)(a)(I)(A) (a third degree felony), People v. Nicole Nunez, Las Animas County District
Court, 1 3CR27 (the Nunez case).

24. On February 13, 2013, the defense counsel filed a Combined Demand for Preliminary
Hearing, Motion for Discovery, and to Reduce or Modify Bond.
25. Respondent failed to produce exculpatory evidence in his possession, including
information about the confidential informant (Travis Murphy or CI) who assisted law
enforcement in a sting operation involving Ms. Nunez.
26. Respondent failed to comply with the Crim. P. 16(I)(a)(1)(V) and 16(1)(a)(1)(VII)
mandatory automatic disclosure requirements.
27. On February 25, 2013, Respondent sent a letter to law enforcement asking them to
provide all identifying information about the Clfor purposes of producing that information to
the defense.
28. Law enforcement and/or the Respondents District Attorneys office was paying the Cls
living expenses, specifically the Cls rent, during and alter the drug sting operation.
3

29. Respondent issued a subpoena to testify to the CI.


30. Respondent intended to call the CI to testify at trial against defendant Nunez.
31. The court set the Nunez case for jury trial to be held October 22,2013, and for a motions
hearing and status conference on July 26, 2013.
32. On June 24,2013 the defense flied a Motion for Specific Discovery requesting the Cls
driving history, medical records, and FBI file, and a Motion for Discovery of Impeaching,
Exculpatory and Material Information.
33. Respondent failed to send the suspected drug samples obtained from Ms. Nunez to the
CoLorado Bureau of Investigation (CBr) for testing until June 21, 2013, four months after
Respondent filed the Complaint against the defendant.
34. On June 21,2013, Respondent sent a letter to the Trinidad Police Department requesting
that they send the Nunez suspected drug samples to CBI for testing.
35. On July 8, 2013 the defense filed a Motion for Specific Discovery Regarding Drug Sting
and Confidential Informant Policies and Funding.
36. On August 29, 2013, the defense filed a Motion for Specific Discovery Regarding
Financial and Other Benefits Granted to the Confidential Informant.
37. On September 24,2013, the Trinidad Police Department gave Respondent a Drug
Investigation Report stating that the police department received the lab report from the CBI,
identifying the substances the CI had received from Ms. Nunez as meth.
38. Also on September 24, 2013, the defense filed a motion to dismiss for discovery
violations for failure to produce the following, despite multiple motions:
a. Any evidence relevant to motive, bias, or interest of CI
b. All info concerning drug and alcohol use, evaluation, or treatment of prosecution
witnesses
c. Any evidence or records that relate to specific instances of untruthfulness of
witnesses
d. Medical records of Cl
e. Cls driving history
f. Contents of CTs FBI file
g. All documentation pertaining to CI held by Trinidad Police Dept., including
confidential informant file and police reports from other cases
h. Info known to Trinidad Police Dept. regarding Cls work as CI for any other
agency
i. Relocation or travel expenses paid to CI
j. Any other benefit CI received, not already disclosed, as payment
4

k. Info regarding alleged criminal conduct by CI, charged or uncharged

--

39. At the time the defense filed the Motion to Dismiss, Respondent was in possession of
some of the information related to thefts allegedly committed by the CI, including the Cls
---medica1-records-and-the-Cls relocationexpensespaidio th&CIbyiaforneutai4/rihe
District Attorneys Office.

40. Per Crim. P. 16(I)(a)(2) information related to thefts committed by CI Travis Murphy,

after the CI assisted in the sting operation involving Ms. Nunez, was information that tends to
negate the guilt of the accused as to the offense charged or would tend to reduce the punishment
therefor.
41. Crim. P. 16(I)(a)(2) and 16(V) state that disclosure of evidence which tends to negate the
guilt of the accused as to the offense charged, or would tend to reduce the punishment therefor, is
mandatory and automatic.
42. At the September 27,2013 motions hearing, Respondent dismissed the case against the
defendant before the court could rule on the various discovery and sanctions motions.
43. Respondent orally moved to dismiss the Nzinez ease due to an inability to locate the
confidential informant.
44. On September 30, 2013, Respondent filed a written Motion to Dismiss, citing his
inability to locate the CI, Travis Murphy.
45. On October 1, 2013 the court issued an Order Granting Prosecutions Motion to Dismiss.
People v. Tafoya, case no. 13CR39
46. On February 8,2013, Respondent filed a Complaint and Information against Vincent
Tafoya based on Mr. Tafoyas alleged sale of three narcotic pills to confidential informant,
Travis Murphy, in September 2012 during a drug sting operation.
47. Mr. Tafoya was charged with two counts of distribution of a controlled substance,
schedule II, a class three felony, People v. Vincent Tafoya, Las Animas County District Court,
1 3 CR39 (the Tafoya case).
48. Law enforcement and/or the Respondents District Attorneys office was paying the CTs
living expenses, specifically the Cls rent, during and after the drug sting operation.
49. Respondent failed to timely produce exculpatory information in his possession, or
available from law enforcement, related to the CI, Travis Murphy.
50. On February 28,2013, Respondent issued a subpoena to testify to the Cl.
51. Respondent intended to call the CI to testify at trial against the defendant, Mr. Tafoya.
5

52. Trial in the Tafoya ease was set for August 20-21,2013.
53. In February and March 2013, the Respondent received information that CI Travis
-Murphy-was-investigated by law-enforcement for-two sepa te-crirnes-but-was-not-charged.----54. In February and March 2013, the Respondent had information that the District
Attorneys office had paid the Cls living expenses in 2012 and 2013.
55. This information regarding the CI was information that tends to negate the guilt ofthe
accused as to the offense charged or would tend to reduce the punishment therefor.
56. Evidence related to incentives or money given to the CI was exculpatory evidence
related to the case against defendant Robinson because the evidence may have tended to show at
trial the Cls lack of credibility, and his motive to testify favorably for the prosecution.
57. Crim. P. 16(I)(a)(2) and 16(V) state that disclosure of evidence which tends to negate the
guilt of the accused as to the offense charged, or would tend to reduce the punishment therefor, is
mandatory and automatic.
58. Despite having exculpatory information regarding the CI, Respondent failed to timely
disclose that information
59. Respondent did not disclose the information regarding the Cls alleged thefts to the
defense until mid-August, 2013.
60. On July 8, 2013, the defendants private defense counsel filed a Motion to Compel
Production of Disclosed Informants Address and Place of Employment, which requested the
Cls address and place of employment.
61. Also on July 8, 2013, the defense filed a Motion to Compel Discovery Pertinent to
Disclosed Informant, which requested disclosure of any information regarding whether the CI
had sought assistance from the District Attorney or police to resolve any criminal charges,
complaints, or personal, civil or criminal matters regarding the CI.
62. Respondent failed to have the Tafoya suspected drug samples tested by CBI until five
months after Respondent filed the Complaint against defendant Tafoya.
63. On July 19, 2013, Respondent sent a letter to the Trinidad Police Department requesting
that the suspected Tafoya drug samples be sent to CBI for analysis.
64. At a hearing on July 26,2013, Respondent moved to continue the trial because
Respondent did not yet have the expert reports and laboratory results of the analysis of the
alleged drugs given to the Cl by Mr. Tafoya.

--

65. Respondent told the court that law enforcement had not sent the alleged drugs to the CBI
lab until July 2013.
66. The court continued the trial until October 7-8, 2013, and ordered Respondent to produce
-iheiaboratory resu1tsnoiater-than-September-3 20-l-3---

67. The court also ordered Respondent to produce the CI Travis Murphys address and
employment information to the defense.
68. On August 8, 2013, Respondent produced to the defense the Cls address and
employment information, however, this information was not produced timely and also turned out
to be incorrect.
69. On August 17, 2013, the defense ified a Motion for Pretrial Subpoena Duces Tecum,
requesting CI Murphys medical records from January 1 June 1, 2013.

70. Respondent thereafter produced the Cls medical records from late 2012, which showed
the CI was prescribed Dilaudid (a painkiller) and Xanax several times in late 2012 for an
accidental finger amputation, back pain, and an abscess (suspected shooters abscess probably
related to IV drug use).
71. Respondent knew that in another case involving the same CI, Travis Murphy, a subpoena
had been issued to the local hospital for the Cls medical records.
72. On April 3, 2013, and the court received the medical records from the hospital and held
the recordsbut released them to Respondent on June 12, 2013.
73. Due to a subpoena in a different case, Respondent had the Cls medical records as of
June 12, 2013, but did not produce them to the defense in the Tafoya case until July 11,2013.
74. Respondent never produced to the defense the expert reports from the laboratory
analyzing the alleged drugs given from Tafoya to the CI obtained during the drug sting.
75. Despite the Crim. P. 16W(a)(1)(V) and 16(I)(a)(1)(Vll) mandatory automatic disclosure
requirements, Respondent failed to timely produce the Cls address, phone, and place of
employment until after the defense filed a motion to compel and the court ordered Respondent to
do so.
76. On September 23, 2013, the defense filed a Motion to Dismiss or for Other Discovery
Sanctions.
77. On September 30, 2013, before the hearing on the Motion to Dismiss of for Other
Discovery Sanctions, Respondent filed a motion to dismiss the Tafaya case.
78. Respondents Motion to Dismiss the Tafoya case was based on Respondents alleged
inability to locate Mr. Murphy, who was a material witness in the case.
7

r 1,2013.

s Octobe
79. The court granted Respondents Motion to Dismis on
People v. Robinson case no. 13CR24

was arrested based on his alleged


80. On January 30, 2013, the defendant, Jeffrey Robinson,
involvement with a law enforcement drug sting operation.
te occasions, Mr. Robinson
81. Police reports in Respondents file indicate that on two separa
over for the Trinidad Police
sold drugs to the paid CI, Travis Murphy, who had worked underc
ber, 2012.
Department during the months of September, October, and Novem
was paying the Cls
82. Law enforcement and/or the Respondents District Attorneys office
on.
operati
living expenses, specifically the Cls rent, during and affer the drug sting
ant
t
83. On February 5,2013, Respondent filed a Complaint and Information agains defend
lled
II
le
contro
Jeffrey Robinson, and charged him with two counts of distribution of a schedu
ce enhancer,
substance, a class 3 felony, and two counts as a special offender, which is a senten
son
case).
Robin
(the
13CR24
People v. Robinson, Las Animas County District Court,
84. Respondent failed to produce any information regarding the Cls involvement with two
l
thefts, one alleged theft from the Cls mother, and one a theft from a nurse at the hospita where
the CI was receiving physical therapy.
ly
85. Respondent had information that on November 26, 2012, Cl Travis Murphy alleged
stole a nurse/physical therapists wallet.
86. Respondent had or should have had information that law enforcement decided not to
pursue charges against the CI for the alleged theft of the nurse/physical therapists wallet.
87. The CI, Travis Murphy. had been working under the Trinidad Police Departments direct
supervision for the previous two months related to the drug sting in the Robinson case.
88. Crim. P. 16(l)(b)(4) requires Respondent to ensure that a flow of information is
maintained between the investigative personnel and Respondents office, sufficient to place all
material and information relevant to the accused in Respondents possession.
89. Evidence of the theft and the decision by law enforcement not to pursue charges against
the CI is exculpatory evidence as it relates to defendant Robinson, and therefore Respondent was
required to immediately disclose this information to the defense pursuant to Crim. P. 1 6(l)(a)(2)
and 16(V).
90. Respondent also had or should have had information that the CI stole his mothers credit
card, and used it to conduct numerous fraudulent transactions in April, 2013.

on April 19,2013, the Cls mother,


91. Respondent had or should have had information that
Travis Murphy, had charged four
Ms. Sandoval, called the police to report that her son,
sion.
fraudulent transactions with her credit card without her permis
92

ednotto
After communicating with law eriforcementthe distrttorneysofficed1
against
and
fraud
theft
alleged
the
with
file charges against the CI, Travis Murphy, in connection
the Cls mother.
evidence related to the case
93. Evidence related to both alleged thefts was exculpatory
tended to show at trial the Cls
against defendant Robinson because the evidence would have
ution given the alleged
prosec
the
lack of credibility, and his motive to testil favorably for
regarding the alleged crimes.
leniency toward Travis Murphy by the police and prosecution
ement the information about
94. Respondent knew or should have known from law enforc
ber 2012.
the Cls alleged theft from the nurse/physical therapist in Novem
ement the information about
95. Respondent knew or should have known from law enforc
the Cls alleged theft from his mother in April 2013.
this information about the
96. Despite the fact that Respondent knew or should have known
and
P.
CI, Respondent failed to disclose this exculpatory information per Crim. 16(IXa)(2)
16(V).
l, offering defendant
97. On June 5,2013, Respondent sent an email to the defense counse
Robinson a plea deal.
Amend Complaint
98. The defendant accepted the offer and Respondent filed a Motion to
Pursuant to Plea Agreement.
tion and
a
99. The motion was granted and Respondent and the defense then filed Stipula
Plea Agreement.
l
e
100. After final judgment was entered and the defendant was sentenced, defens counse
learned of additional information regarding the CI, Travis Murphy.
Vacate
101. On November 8, 2013, the defense filed a Motion to Withdraw Plea and
on new facts
Conviction, which requested that Mr. Robinsons conviction be overturned based
discovered by the defense.
ce
102. The defenses motion alleged the prosecution had failed to disclose or produce eviden
2012 and that
that the Cl, Travis Murphy, had stolen his physical therapists wallet in November
the Trinidad Police Department refused to file charges in the case.
e
103. The defenses motion also a]leged the prosecution had failed to disclose or produc
lent
fraudu
t
conduc
evidence that CI Mr. Murphy stole his mothers credit card and used it to
transactions in April2013.
9

the defense ofthe Cls change


104. The motion also alleged the prosecution failed to notify
expenses.
housing
of address and ofthe prosecutions payments to the CI for
Motion to Vacate Plea and
discovery violations, Respondent and the defense filed a Stipulated
To Dismiss all charges against defendant Robinson.

dismissed the ease


106. The court granted the stipulated motion, vacated the plea, and
against defendant Robinson.
People v. Waldo.. case no. 13CR72

assault.
107. Lenin Waldo was arrested on March 29,2013 for alleged sexual
sexual
108. On April 11,2013, Respondent charged defendant Waldo with one count of
(the
13CR72
Court,
assault, a class four felony, People v. Waldo, Las Animas County District
Waldo ease).
interview with the
109. Respondent provided the defense with a copy of a video of a police

victim, but failed to produce a copy of a video of a police interview with the defendant.

110. The defendant appeared at a preliminary hearing on May 22, 2013. The case was set
for trial to occur on October 7, 2013.
111. On July 30, 2013, the defense filed a Motion for Production of Specific Discovery:
Audio-Recorded Interview and Photographs. The motion requested the audio recording of the
police interview with the defendant, Mr. Waldo, and copies of the police photographs taken
during the investigation.
112. Respondent failed to determine whether the CD produced to the defense had a copy of
both videos of police interviews with the victim and the defendant.
113. On September 18,2013, the court held a hearing regarding Respondents failure to turn
over discovery, as well as the defense counsels motion to suppress DNA evidence.
114. At the hearing, Respondent was adamant that he had already produced the recorded
interview with defendant to the defense counsel.
115. Respondent stated to the court that defense counsel was lying to the court.
116. The court took possession of the CD produced to the defense and after opening files on
the CD, determined Respondent had not included the video of the police interview ofthe
defendant on the CD produced to the defense.

10

ndent admitted in an
,
117. On the evening of September 18, 2013, after the hearing Respo
ant and police on
defend
ew with
email to defense counsel that he had not put the recorded intervi
the Cl) produced to the defense.
1-18.-- OnSeptember-2020i,-Respondent-emaile&defenseo
police interview of Mr. Waldo, and the crime scene photographs.

defenses (1) Motion for


119. On September 23, 2013, the court issued orders granting the
InformatIon, (2) Motion for
Preservation and Production of Specific Discovery and Impeachment
raphs, and (3) Motion
Production of Specific Discovery: Audio-Recorded Interview and Photog
ion of Search Warrant
s
to Suppress Evidence Obtained as a Result of Law Enforcement Execut
2013-SW-35.
Request for Sanctions
120. On September 24, 2013, the court issued an Order re: Defense
ey.
t
Attorn
Due To Alleged Discovery Violations by the Distric
how to cure this
121. In the September 24, 2013 order, the court stated it was at a loss of
discovery violation.
d the
122. In the September 24,2013 order, the court noted that Respondent had also violate
e.
the
defens
to
s
list
courts May 29, 2013 order by failing to provide a witnes
ber
123. The court set another hearing on possible sanctions against Respondent for Septem
25, 2013.
ons
124. On September 25, 2013, before the court could address the alleged discovery violati
.
ant
t
Waldo
(or issue any sanctions), Respondent orally moved to dismiss the case agains defend

125. On October 7, 2013, Respondent filed a written Motion to Dismiss on the grounds that
the
(1) the DNA comparison was suppressed and (2) the victim was voluntarily intoxicated at
time of the alleged crime and had received two DUIs since that time.
126. The court granted Respondents motion to dismiss on October 7, 2013.
CLAIM ONE
Representation to a Client Cole. RPC 1.11
tent
Compe
IFailure to Provide
-

127. Paragraphs 1 through 126 are incorporated herein as if fully set forth.
128. Cob. RPC 1.1 states that competent representation requires the legal knowledge, skill,
thoroughness and preparation reasonably necessary for the representation.
129. Respondent represented the People of the State of Colorado in all cases he handled as
District Attorney.

11

130. In the Nunez Tafoya and Robinson cases, Respondent failed to properly and timely
make disclosures to the defense, including drug testing results, witness criminal histories, and
information about a confidential informant.
----11 In-the-Waldo-case Respond iledtocomplywithCrim P. 16, and court orders
regarding disclosure of a recorded police interview and a witness list.
132. In the Nunez, Tafoya and Robinson Respondent failed to timely provide to the defense
the drug testing reports.
133. Respondent was required to provide the above items to defense counsel in a timely
manner.
134. By such conduct, Respondent violated Cob. RPC 1.1.
135. Each instance of conduct described above is a violation of Cob. RPC 1.1, as are all of
them together.
WHEREFORE, the Complainant prays at the conclusion of this Complaint.
CLAIM TWO
[A Lawyer Shall Act With Reasonable Diligence and Promptness in Representing a Client
- Cob. RPC 1.31

136. Paragraphs 1 through 135 are incorporated herein as if frilly set forth.
137. Cob. RPC 1.3 requires a lawyer to act with reasonable diligence and promptness in
representing a client.
138. Respondent failed to diligently pursue the Peoples prosecution of defendant in the
Nunez case because Respondent failed to request CBI testing of the suspected drug samples until
four months after Respondent filed his Complaint and Information against the respective
defendants.
139. Respondent failed to diligently pursue the Peoples prosecution of defendant in the
Tafoya case because Respondent failed to request CBI testing of the suspected drug samples until
five months after Respondent filed his Complaint and Information against the respective
defendants.
140. In the Nunez and Tafoya cases, Respondent failed to properly and timely make
disclosures to the defense, including drug testing results, witness criminal histories, and
information about a confidential informant.
141. Respondent was required to provide the above items to defense counsel in a timely
manner.

12

142. Each instance of conduct described above is a violation of Cob. RPC 1.3, as are all of
them together.
WHEREFORE, Complainant prays at the conclusion of this Complaint.
CLAIM THREE
Partys Access to Evidence Cob. RPC 3.4(a)J
Another
Obstructing
[Unlawfully
-

143. Paragraphs 1 through 142 are incorporated herein as if fully set forth.
144. Cob. RPC 3.4(a) states that a lawyer may not unlawfully obstruct another partys
access to evidence or unlawfully alter, destroy or conceal a document, or counsel others to do so.
145. In the Nunez, Tafoya, Robinson, and Waldo cases Respondent failed to comply with
Crim. P. 16(I)(b)(4) which required Respondent to ensure that a flow of information is
maintained between the investigative personnel and Respondents office, sufficient to place all
material and information relevant to the accused in Respondents possession.
146. Respondent failed to timely produce evidence to the defense in the Nunez, Tafoya,
Robinson, and Waldo cases, in violation of court orders, and/or Crim. P. 16(I)(a)(2), 16(l)(bXl)
and 16(V).
147. Respondent thereby unlawfully obstructed the defendants access to evidence, in
violation of Cob. RPC 3.4(a).
148. By such conduct, Respondent violated Cob. RPC 3.4(a).
149. Each instance of conduct described above is a violation of Cob. RPC 3.4(a), as are all
of them together.
WhEREFORE, the Complainant prays at the conclusion of this Complaint.
CLAIM FOUR
[Knowingly Disobeying an Obligation under the Rules of a Tribunal Cob. RPC 3.4(c)1

150. Paragraphs 1 through 149 are incorporated herein as if fully set forth.
151. Cob. RPC 3.4(c) states that a lawyer shall not knowingly disobey an obligation under
the rules of a tribunal.
152. Respondent knew he had to comply with court orders, and Crim. P. 16(I)(a)(2),
16(1)(b)(l) and 16(V) in the Nunez, Tafoya, Robinson, and Waldo cases.
153. Respondent failed to timely disclose exculpatory evidence in the Nunez, Tafoya,
Robinson and Waldo cases, and thus Respondent knowingly failed to comply with Crim. P. 16(I)
and 16(V) in the Nunez, Tafoya, Robinson, and Waldo cases.
13

witness
154. Respondent knowingly failed to comply with the courts order regarding
criminal histories and a witness list in the Waldo case.
155. By such conduct, Respondent violated Cob. RPC 34(c).
as are all
156. Each instance of conduct described above is aviolationofCobo. RPC 3.4(c),
ofthem together.

WHEREFORE, the Complainant prays at the conclusion of this Complaint.


CLAIM FIVE
to the Defense all Evidence which Tends
Disclose
Timely
to
[Prosecutors Failure
the Offense Cob. RPC 3.8(d)J
Mitigate
to Negate the Guilt of the Accused or
-

157. Paragraphs I through 156 are incorporated herein as if fully set forth.
158. RPC 3.8(d) requires that a prosecutor must make timely disclosure to the defense all
evidence which tends to negate the guilt of the accused or mitigates the offense.
159. Respondent knew he possessed evidence of the Cls criminal history, and alleged
thefts committed during and after the drug sting operation.
160. Respondent knew he possessed evidence that law enforcement had shown leniency to
the CI for alleged thefts committed during and after the drug sting operation.
161. Respondent knew he possessed information about incentives and money given to the CI
for living expenses.
162. Crim. P. 16(I)(a)(2) and 16(V) state that disclosure of evidence which tends to negate
the guilt of the accused as to the offense charged, or would tend to reduce the punishment
therefor, is mandatory and automatic.
163. The above evidence regarding the Cl was exculpatory evidence in the Nunez, Tafoya
and Robinson cases because the evidence would have tended to show at trial the Cls lack of
credibility, and his motive to testify favorably for the prosecution given the alleged leniency
toward the Cl by the police and prosecution regarding the alleged crimes.
164. Evidence related to incentives or money given to the CI was exculpatory evidence
related to the cases against Nunez, Tafoya and Robinson because the evidence may have tended
to show the Cls lack of credibility, and his motive to testify favorably for the prosecution.
165. Respondent intentionally delayed providing the exculpatory evidence to the defense.
166. Respondent intentionally failed to timely disclose evidence which tends to negate the
guilt of the accused or mitigates the offense in the Nunez, Tafoya and Robinson cases.
14

--

167. By such conduct, Respondent violated Cob. RPC 3.8(d).


on of Cob. RPC 3.8(d), as are all
168. Each instance of conduct described above is a violati
fthto-gether
-

Complaint.
WHEREFORE, the Complainant prays at the conclusion of this
CLAIM SIX
Reasonable Efforts to Ensure that Other Lawyer
Make
to
(Supervising Lawyers Failure
Conforms to the Rules of Professional Conduct-- Cob. RPC 5.1(b)]
169. Paragraphs I through 168 are incorporated herein as if fully set forth.
supervisory authority
170. Cob. RPC 5.1(b), which provides that a lawyer having direct
lawyer conforms to the
over another lawyer shall make reasonable efforts to ensure that the other
Rules of Professional Conduct.
aphs, 3171. With regard to the conduct described above in the Jeremiah Hall case in paragr
Hall.
21, Respondent failed to supervise and/or train ADA
172. Respondent failed to make reasonable efforts to ensure that Hall conformed to the
Rules of Professional Conduct in the Jeremiah Hall case.
173. By such conduct, Respondent violated Cob. RPC 5.1(b).
WHEREFORE, the Complainant prays at the conclusion of this Complaint.
CLAIM SEVEN
icial to the Administration of Justice Cob. RPC
Prejud
is
(Engaging in Conduct that
8.4(d)]
-

174. Paragraphs 1 through 173 are incorporated herein as if fully set forth.
175. Cob. RPC 8.4(d) prohibits a lawyer from engaging in conduct that is prejudicial to the
administration ofjustice.
176. Respondent failed to timely disclose evidence in the Nune Tafoya, Robinson and
Waldo cases, and thus failed to comply with Crim. P. 16(1) and 16(V) mandatory, automatic
disclosure provisions.
177. Respondents failures caused the courts in all four cases to set hearings and review
motions regarding discovery.
178. Respondents failures caused the courts to issue orders regarding discovery and
potential sanctions for discovery violations.
15

179. Respondents failures caused the resolution of the Nwzez, Tafoya, Robinson and Waldo
cases to be delayed.
--

181. Each instance of conduct described above is a violation of Cob. RPC 8.4(d), as are all
of them together.
WHEREFORE, the People pray that the Respondent be found to have engaged in
misconduct under C.R.C.P. 251.5 and the Colorado Rules of Professional Conduct as specified
above; the Respondent be appropriately disciplined for such misconduct; the Respondent be
required to take any other remedial action appropriate under the circumstances; and the
Respondent be assessed the costs of this proceeding.
DATED this 1st day of August, 2014.
Respectfully submitted,

Erin Robon-Kristofco, #33100


Assistant Regulation Counsel
James C. Coyle, #14970
Regulation Counsel
Attorneys for Complainant

16

StaternentofCots
Francisco E. Ruybalid

5/1-2113
511212013
5/16/2013
5/16/2013
5/2112013
5/21/2013
5123/2013
5/2812013
5)3112013
5/3112013
6/3/2013
6/4/2013
6/4/2013
7/17/2013.
7/17/20 13
8/15/2013
1121/2014
1/2312014
1123/2014
1/22-2312014
1131/2014
1/31/2014
2/19-20/2014
2124/2014

13PDJ065/14PDJ064
12-0238411243283/13.6469

Trinidad Travel ExpensesfERk-MLE


Trinidad Travel Expenses/ERK-MLE
Transcript CopylKibitt
Transcript CopylCastorena
Transcript Copy/Micra
Transcript Copy/Camp
Transcript Copy/Quintana
Deposition/Rnybalid
Transcript Copy/Sanchez
Transcript Copy/Rodriguez
Transcript Copy/Diliman
Transcript Copy/Rodriguez
Transcript Copy/Low
Transcript Copy/Marqnez
Transcript Copy/Victoria
Transcript Copy/Rodriguez
FedEi Charges
Depositionlllall4lafl
DepositionTravel Expense/MUE
Deposition Travel Expense/ERK
Transcript Copy/Waldo
Transcript Copy/Robinson
Interview Travel ExpenselCEM
Transcript Copy/Terry

332.48
251.92
51.70
44.65

16.45
58.75
16.45
1,026.60
28.20
9.40
7.05
21.15
75.20
122.20
105.75
23.50
1134
1,462.00
185.42
167.29
82.25
119.85
203.50
77.55

Cl

EXHIBIT C

3/1212014
6110/2014
8t25/2014
8/25/2014
8/2512014
812512014
8/2712014
8/2712014
8129/2014
1011612014
10/17/2014
1012812014
Oct.-Jan. 2014
118/2015

Professional Legal Services


Appearance Fee
Process Service/Duncan
Process Service/Russell
Process Service/Gonzales
Process Service/Casias
Process Servlce/Santjstevan
Process ServicelAyila
Process Service/Navarette
Transcript Copy/Lytlc
Transcript Copy/Blackmun
Transcript Copy/Orsini
Professional Legal Services
Administrative Fee
Amount Due

EXHIBIT C

12,600.00
100.00
750
7.54)
7.50
7.50
7.50
7.50
7.50
46.75
319.00
167.75
5,166.00
91.00
$ 23,043.65

PRACTICE AUDiT AND PRACTICE MONITOR

Respondent shall comply with, and bear any costs related to, the practice audit and
-inonftorinprogram The uditaad-monitori

hall-&erformedby Topmved bythe

--

Office of Attorney Regulation Counsel. So long as Respondent is a District Attorney, failure to


comply with this Practice Audit and Monitor condition is a violation of the conditions of
Respondents probation. The practice audit and monitoring program will consist of the
following:
PRACTICE AUDIT
Within 15 days from the date this stipulation is approved by the Presiding Disciplinary
Judge, the respondent shall submit to the Office of Attorney Regulation Counsel (OARC) the
name of at least one proposed practice auditor and monitor for approval by OARC. If OARC
rejects any proposed auditor or monitor, OARC will provide the reasons for the rejection to
Respondent. At the respondents option, the respondent may submit more than one proposed
name. The audit shall be completed no later than 45 days from the date this stipulation is
approved by the Presiding Disciplinary Judge. The respondent shall be responsible for ensuring
that the auditor submits a report concerning the audit to the OARC within 15 days of completion
of the audit. The audit shall include the following:
1. A review of the Stipulation entered into by respondent and OARC. The auditor shall
familiarize him/herselfwith the specific deficiencies described in the Stipulation.
2. A review of respondents filing system, including the creation of files, 1ogging
documentation, and tracking of all cases in Respondents offices in both Huerfano
and Las Animas counties.

EXHIBIT D

EXHIBIT

3. A review of the respondents reminder, or tickler systems, and all calendaring and
case monitoring systems used in the respondents office. The auditor shall verify that
res ndent-has aworkableand effectiveticklersysternanda -dual
case monitoring system in place.
4. A review of the respondents evidence collection/discovery/disclosure system,
including respondents written evidence discovery practices and procedures, and
systems for tracking and recording evidence and disclosures. The auditor shall verify
that Respondent has a workable and effective system for tracking and recording
evidence with each law enforcement agency respondent works with. The auditor
shall verify that the respondent has a workable and effective discovery system which
accurately, completely and timely gathers evidence and discloses evidence in
compliance with Crim. P 16.
S. A review of respondents system for recording oral court orders, collecting written
court orders, and calendaring deadlines in both oral and written court orders.
6. The respondent shall prepare a list of current and active criminal and juvenile files,
which will be reviewed by the auditing attorney, together with the respondent. The
auditing attorney will take steps to verify that Respondent is compiling and
maintaining the list in a reliable manner.
7. The respondent and the auditing attorney shall discuss the respondents caseload
generally, and any concerns the respondent has with respect to his caseload. The
auditing attorney shall review respondents systems and methods for reviewing cases
at the intake stage, prior to filing charges. The respondent shall be responsible for
ensuring that confidentiality is maintained.

EXHIBIT 0

8. The auditor shall review a sampling of the contents of respondents open felony,
misdemeanor, and juvenile files.

The respondent shall provide any additional

iiif&imWotheanditiiig attriy i

inquest cceririj the files selected. The

auditing attorney shall discuss with the respondent any concerns he or she may have
concerning the files or the legal matter contained therein.

This audit of the

respondents files is intended to increase the effectiveness of the auditing attorney in


assisting the respondent to represent the People completely and diligently, and to
communicate with law enforcement and defense counsel on a prompt and appropriate
basis.
9. The respondent and the auditing attorney shall discuss the respondents methods and
systems for supervising and training all subordinate attorneys. The auditing attorney
shall review respondents written training and supervising protocols and policies, and
will assist respondent in adopting written protocols and polices for supervision and
training. The auditing attorney shall review and discuss Respondents supervision and
training ofboth current and new staffmembers.
10. The auditing attorney will make, and the respondent will write down, specific
suggestions necessary to assure that the respondents caseload is being properly and
professionally handled and that the respondent is diligently pursuing all matters.
11. To the extent the auditor has concerns based upon any aspect of the office audit
conducted pursuant to the above-described procedures, the auditor shall make
suggestions or recommendations to the respondent to alleviate such concerns and to
help ensure prudent office management procedures.

EXHIBIT D

The auditing attorney shall prepare a report detailing the steps taken in the office audit
and veri1ing that he/she has completed all ofthe auditing tasks described above.
PCTICMOMTORING

--

The individual serving as the monitor may use an assistant who must be approved by
OARC, to help complete the case-load-review-meetings.

However, the monitor shall be

responsible for the assistant, and the monitor shall be responsible for all reporting requirements.
No more than 15 days following submission of the audit report as described above, respondent
and the auditor shall begin the monitoring process, as follows:
I.

A case-load-review meeting shall take place between the monitoring attorney and

the respondent on this schedule:

II.

(1)

First six months: meeting at least 32 hours per month;

(2)

Second six months: meeting at least 16 hours per month;

(3)

Last 11 months: meeting at least eight hours per month.

At each meeting the following will take place:


(1)

The monitor and respondent shall review the respondents progress in

addressing and following through on each of the items described in the audit report and
addressed in the audit process.
(2)

The monitoring attorney will make, and the respondent will write down,

specific suggestions necessary to assure that the caseload is being properly and professionally
handled and that the respondent is progressing in a satisfactory manner for the duration of this
probationary period.
(3)

The monitoring attorney will make, and the respondent will write down,

specific suggestions necessary to assure respondent has a workable and effective discovery

4
EXHIBIT D

system which accurately, completely and timely gathers evidence and discloses evidence in
compliance with Crim. P 16.
(4)

Th ito

for supervising subordinate attorneys in the office, including training and supervising new
attorneys and staff.
(5)

The monitoring attorney and the respondent will review the list of

suggestions from the previous meeting to be sure that all suggestions for improvement have been
implemented and that the respondent has complied with them.
(6)

The monitoring attorney shall monitor Respondents methods and systems

for communicating with each law enforcement with which his office works, including meetings
and trainings the Respondent conducts with law enforcement.
(7)

The monitoring attorney shall monitor Respondents use of computer

systems used by law enforcement to transfer and make available evidence, police reports, photos,
videos, etc., and review Respondents training and supervision of subordinate attorneys and
staffmembers use ofthe same computer systems for evidence transfer and retrieval.
III.

In addition, on a monthly basis the monitoring attorney shall randomly review the

respondents open files by selecting no fewer than five felony, five misdemeanor, and five
juvenile files, and reviewing the contents thereof. The respondent shall provide any additional
information the monitoring attorney may request concerning the files selected randomly. The
monitoring attorney shall discuss with the respondent any concerns he or she may have
concerning the files or the legal matter contained therein at the next monthly meeting between
the monitor and respondent. This random audit of the respondents files is intended to increase
the effectiveness of the monitoring attorney in assisting the respondent to represent the People

EXHIBIT 0

competently and diligently, and to communicate with law enibreement and defense counsel on a
prompt and appropriate basis.
W: Th

nit

lf

eds

kith respondents ployees,

as well as review any of the respondents other records, for the purpose of perfonning the
obligations in this audit/monitoring agreement.
V.

Within ten days following each meeting, the respondent shall submit to the Office

of Attorney Regulation a written report of the meeting, which report shall be signed by the
monitoring attorney.
VI.

The monitoring attorney shall immediately disclose to the Office of Attorney

Regulation any matters which are uncorrected or which represent significant problems requiring
corrective attention. Copies of such correspondence shall be sent to the respondent.
VII.

The hours or duration of case-load-review meetings may be subject to change, if

recommended by the practice monitor, but only if approved by OARC.


VIII.

If Respondent ceases being a District Attorney, then Respondent no longer needs

to comply with these monitoring requirements.

6
EXHIBIT D