Child porn case against cop in jeopardy due to evidence delay

Delays by prosecutors sharing evidence with defense attorneys has led to charges being dismissed in weapons and assault cases and now jeopardizes the case against a police officer charged with child pornography, a defense attorney charged Friday.

After listening to three hours of testimony, Fourth Judicial District Judge Theresa M. Cisneros said she would review the record before issuing a ruling on whether sanctions should be imposed against prosecutors in the case of Morgan Sellman, an Aurora police sergeant facing 100-plus counts related to child pornography.

Sanctions could range from simply giving defense attorneys a continuance up to dismissing the charges against Sellman.

The issue of delays by prosecutors led Cisneros to take the unusual step of ordering El Paso County District Attorney Dan May to testify and defend his office.

May endured two hours of grilling on the witness stand Friday by defense attorney Harvey Steinberg, who has asked Cisneros to dismiss the case because of repeated obstacles in getting access to computers seized from Sellman’s home in Peyton prior to his July 30, 2010, arrest.

The computers were not made available for more than a year, hampering efforts to get the material to an expert witness, Steinberg said.

In his presentation Friday, Steinberg read aloud a half-dozen other cases he said were marred by discovery issues over the past two years.

In two of the cases, Steinberg said, defendants walked after evidence or testimony was ruled inadmissible because of discovery delays. One was a felon accused of possessing a weapon and drugs, and the other a man accused of felony assault.

Court records confirm charges were dropped but they didn’t specify if discovery violations were involved. Other court records were unavailable because of the holiday, and The Gazette was unable to immediately verify the claims.

May said he was unaware of why those cases were dismissed. But in his testimony, he defended his office.

“We’re going to give out discovery as soon was we get it,” May said after a testy exchange. “I don’t want to have hearings like these.  I want things to work well.”

May testified that prosecutors generally turn over discovery in felony cases within two days of a request.

And May told the court he had spoken to Chief District Judge Kirk S. Samelson and two other senior judges before Friday’s hearing and none indicated systemic discovery problems. Samelson presides over administrative matters in the district.

Under prodding by Steinberg, May acknowledged that his office has no system to track sanctions against prosecutors. May said examining every case for evidence of sanctions would be “impossible.”

Deputy prosecutor Amy Fitch also questioned May and defended her office by noting that with more than 50,000 cases filed last year alone, human error is bound to result in occasional missteps.

Cisneros complained that discovery disputes have dogged the Sellman prosecution “almost since its inception.”

But Fitch disputed Cisneros’ timeline and said prosecutors turned over the computer hard drives within the judge’s deadline.

“We don’t believe there has been a discovery violation,” said Fitch, who attributed the delays to state and federal laws that safeguard child pornography. Fitch said the material can only be released with a judge’s permission.

Cisneros countered that police refused to release the material even after the defense presented them with her signed order.

Sellman’s attorneys said the delays had a “cascading” effect that compromised their ability to prepare for trial, now set for Jan. 10.

“It should be shocking to the court, and it is evidence of bad faith by this prosecution team,” Steinberg said.

Friday’s hearing was the only latest flashpoint over discovery issues in Cisneros’ courtroom.

The judge last week cited delays in dismissing a case against a prison guard accused of trying to smuggle drugs into the Colorado State Penitentiary in Canon City. Cisneros later reinstated the case, saying she had ruled “improvidently.”

Attorneys who were present for the Dec. 12 hearing say Cisneros lashed out angrily while rattling off cases involving delays and missing evidence.

On Friday, without mentioning specifics, Cisneros said a recent trial hit a snag when someone lost a pair of underwear logged as evidence.

“If it seems like I’m frustrated, it’s because I am,” Cisneros said at one point as May nodded in recognition from the gallery.

Discovery problems have been cited in several other high-profile cases this year.

Prosecutors in May turned over an audio recording of an interrogation of first-degree murder suspect Logan McClelland the day his trial started. District Judge Jann Dubois granted a daylong continuance. McClelland was ultimately convicted of manslaughter.

On Wednesday, Dubois said she will consider sanctions in the Detra Farries case unless prosecutors find DVD recordings of interviews with two witnesses whose observations are helpful to Farries’ defense.  Prosecutor Jeff Lindsey said the discs were apparently misplaced by an officer or police evidence clerk.

Farries is set for a Jan. 30 trial in the dragging death of tow-truck driver Allen Lew Rose.

In another murder prosecution, El Paso County sheriff’s investigators apparently lost materials documenting a jailhouse interview of Hanif Sims, who is accused of killing his 7-year-old daughter Genesis and leaving her body under a crawlspace.

District Judge G. David Miller ruled the defense will have wide latitude in questioning the detectives responsible when that trial begins, also Jan. 30.