Prosecutors, who are enforcers of the law, have higher ethical duties than other lawyers because they are ministers of justice, not just advocates. . . . they must be forever vigilant that their conduct as attorneys not only meets the minimum standards of conduct, but they must strive to exceed those requirements.
-Office of the Presiding Disciplinary Judge of the Colorado Supreme Court in a 2001 case, People v. Paulter
District Attorney Joe Olt, chief prosecutor in the 22nd Judicial District, will be sitting at the defense table later this month when he goes to trial in Denver on four claims of prosecutorial misconduct.
Durango criminal defense lawyer Will Herringer, who represented a man accused of assaulting two deputies during an attempted escape from the Montezuma County Jail in 2001, filed the complaint against Olt last fall with the Presiding Disciplinary Judge of the Colorado Supreme Court. A trial has been set for March 23, 24 and 25, according to Tammy Rush, the court’s administrator.
Dennis Hicks, the defendant in the case, was ultimately allowed to plead guilty to a single count of second-degree assault and serve a four-year prison term, with 19 other charges, including far more serious felonies, being dismissed.
Herringer’s complaint alleges that Olt:
- Improperly interviewed his client, Hicks, then 50, in March 2002, without first ascertaining whether Hicks was represented by counsel, which he was. During that tape-recorded interview, Hicks admitted he’d committed the assaults while trying to escape from jail, but offered an explanation that was later ruled “potentially exculpatory,” i.e., information that could be used in his defense. Herringer was not made aware that a recording of the interview existed until more than two months later.
- Failed to notify Herringer, as required by law, of a subpoena for his client’s medical records, thereby depriving him of a chance to object. The Rules of Criminal Procedure require a copy of any such subpoena be sent to the opposing counsel and include a return date when the subpoena can be contested.
- Improperly obtained those medical records without Hicks’ consent, thereby violating his right to privacy under Colorado law. Herringer pointed out that a Colorado statute makes the unauthorized taking or copying of a person’s medical records a criminal act.
- Intentionally misled Hicks concerning the use of information he had previously provided the DA in a murder case by allowing the DA’s investigator, Hugh Richards, to imply that the Public Defender’s Office had inadvertently obtained the information through “a leak.” Olt, the complaint alleges, did nothing to correct this impression by telling Hicks the truth – that disclosure of Hicks’ statement to defendant Shaun Murphy’s attorney was required by law.
In his written answer to the four claims, dated Nov. 17, 2003, Olt, through his attorney Frederick Martinez, denies any substantive violation of the rules of professional conduct, while admitting many of the facts cited in Herringer’s allegations.
Reprimanded by Hansen
Elected in 2000 with almost no experience in criminal law on either side of the courtroom, Olt was reprimanded by District Judge Sharon Hansen (in an order on Dec. 20, 2002) for withholding evidence and other improper conduct concerning some of the same issues in the Hicks case, and the defendant’s statements to investigators were suppressed, partly as a sanction, or punishment.
In his complaint Herringer notes that Hansen had already found Olt culpable of misconduct in the Hicks case. Hansen also had observed that in other criminal cases Olt failed to disclose evidence in a timely manner during discovery, the procedure in which each side must reveal to the other whatever evidence it possesses related to the case.
“The prosecutor’s office has repeatedly been warned about failure to make timely discovery available,” Hansen wrote in her order. That order suppressed all statements made by Hicks during the March 2002 interview with Olt and Richards, and, as a sanction for improper conduct, the statements Hicks made during an earlier interview conducted by Richards and a sheriff’s detective.
“Here disclosure of very important, potentially exculpatory information was not conveyed to the defense counsel,” Hansen noted, until more than two months after it was obtained.
In his response to the complaint, Olt admits that Hansen had entered an order concerning prosecutorial misconduct and that it referred in part to him, but denies Herringer’s “self-serving characterization of the (order), or any opinions, quasi-factual/legal conclusions contained within the Order.”
Olt further denies that any attorney/client relationship existed between Herringer and Hicks when he interviewed the defendant on March 4, 2002, even though Herringer had been appointed by Hansen on Feb. 28.
Olt states he does not recall the notice of Herringer’s appointment “crossing his desk.” He also admits that he did not know his office had sent Herringer discovery documents about Hicks in late February, several days before the interview. Olt states “the interview proceeded due to Mr. Hicks waiving his right to counsel….”
Olt admits that he failed to look at Hicks’ file before the interview, but denies he “did not make efforts to learn whether Mr. Hicks was represented.”
Additionally, Olt denies that he’d misled Hicks by leaving him with the impression any information he supplied regarding other crimes wouldn’t be revealed to a defense attorney in a subsequent prosecution.
‘I can stop the leak’
Olt admits he subpoenaed Hicks’ medical records from Bloink, but denies not sending a copy of the subpoena to Herringer.
Hicks had requested a meeting with Olt to talk about making a deal to trade information for a lenient sentence, court records show, but Richards and another investigator interviewed him the first time, on Jan. 9, 2002, promising to tell Olt about his proposal.
Hicks admitted to the escape attempt, during which he struck two jail guards with a metal bar, but maintained he hadn’t been able to sleep for four days before this, was overmedicated with prescription drugs and under the influence of a fellow inmate who had supplied the weapon and kept telling him he had “nothing to lose.”
“I had a lot of respect for both of (the deputies),” he said to Richards. “I didn’t want to hurt ’em – that’s why I just tapped them on the head and told them to lay down.”
Hicks claimed he could identify a person who had committed four murders in Salt Lake City, Utah, but was afraid of retribution. Salt Lake City police later told the DA’s office they had no record of any such murders.
On March 4, 2002, Olt met with Hicks.
According to the transcript of that interview, Hicks, who had asked to speak to the DA personally about the possibility of a plea bargain, was assured by Richards in Olt’s presence that any information he might supply about another murder of which he claimed knowledge would be kept under wraps.
“I can stop the leak right now,” Richards said. “Right here I can stop it.”
But the law requires that evidence acquired by either side in a criminal case be shared with the other side.
Discouraged from representation?
In his complaint, Herringer also alleges that Olt, after informing Hicks of his Miranda rights, improperly discouraged him from obtaining a lawyer if he wanted to make a plea bargain.
“The implication was that Hicks would not be able to reach an agreement with the DA’s office if he obtained counsel,” Herringer stated in the complaint.
In the transcript of the March interview, Olt tells Hicks, “If you are thinking of getting a public defender, they are not going to allow you to talk to us.”
In his answer to the complaint, Olt denies that he’d implied during the interview that Hicks wouldn’t be able to get a plea bargain if he obtained defense counsel, but admits telling Hicks that if he retained a public defender, the public defender wouldn’t let Hicks speak to the DA’s office.
During the first interview with Hicks in January, Richards also made reference to the complications involved if Hicks obtained a lawyer, which he hadn’t done at the time.
“Now if you get a public defender, you have to go back . . . through . . .all the business with a lawyer,” Richards is quoted in that transcript.
Hicks then replied, according to the transcript, “If it (a plea bargain) is possible, I could do it without him (an attorney).”
In his answer, Olt and his attorney also maintain that Olt’s conduct “did not involve the requisite state of mind necessary to constitute a violation of the Rules of Professional Conduct in question.” (In other words, Olt contends that if in fact he violated any of the rules, it wasn’t intentional.)
They also argue that “any discovery violations regarding this issue have been resolved by Judge Hansen,” citing a Supreme Court opinion that states, in part, “we have an attorney grievance system that is ill-suited to addressing any but the most serious discovery violations,” a system designed to “shift the emphasis from punishment to prevention . . . (and to) protect the public as well as educate attorneys.”
Olt declined to comment on the matter to the Free Press.