DA fights discovery sanction

22nd Judicial District Attorney Russell Wasley and Assistant District Attorney Andrew Hughes have filed a complaint for judicial review of sanctions placed against the district attorney’s office by Montezuma County Judge Jennilynn Lawrence.

The case, People of the State of Colorado vs. The Honorable Jennilynn Lawrence, was filed in district court on May 1, and seeks a reversal of the county court’s order that the district attorney and his staff take a class in the proper handling of evidence.

The order was handed down by Lawrence on April 19, after a discovery violation was found in a local infant death case earlier this year.

“The discovery violation is the sole cause of the two-month delay in holding a preliminary hearing in this case,” Lawrence wrote in the order. “Accordingly, the court will fashion a sanction with the goal of avoiding any further such delays as a result of the District Attorney’s admitted erroneous understanding of constitutionally mandated and Rule 16 discovery obligations.”

Under the ruling, Wasley, his deputies and staff who handle discovery must take a minimum eight hours of continuing legal education in matters concerning discovery, the legal process of exchanging evidence between parties.

In the civil filing, now before Judge Douglas Walker, the DA’s office asserts “the county court abused its discretion in ordering the discovery violation and the sanction it imposed because the county court exceeded its jurisdiction.”

Citing CRS 13-6-106, the filing argues the county court lacked jurisdiction when it ordered the discovery violation as the case was before Lawrence “for the limited purpose of conducting a preliminary hearing” regarding bindover to the district court.

The filing also asserts the court lacked jurisdiction to “issue the particular sanction that was imposed,” and the order is no longer valid because the case has since been bound over to district court, thereby negating any jurisdiction once held by county court.

In addition to disputes regarding county court’s jurisdiction in the discovery violation order and the imposed sanctions, the district attorney’s office also argues there was no discovery violation in the case, as requested materials were disclosed less than 24 hours after first request.

The evidence in question is 78 pages of documents requested by 18-year-old Dylan Kuhn’s attorneys the day before a preliminary hearing in Kuhn’s case. Kuhn is charged with child abuse causing death for an incident last year.

During discussion of the suspected evidence, Kuhn’s attorney, John Moran, said the evidence could be exculpatory, indicative of Kuhn’s innocence.

District Attorney Wasley argued those particular documents were not requested by the defense until 7:30 p.m. the prior evening and are from a four-year-old case pertaining to a potential witness, not directly connected to Kuhn’s case.

When questioned by Lawrence, Wasley admitted he did not have time himself to review the documents, and could not say whether it was exculpatory.

The civil case is not currently set for any proceedings and the defense has until July 24 to file a response to allegations.

The DA’s motion for a preliminary injunction was withdrawn on May 29. According to the original order, the DA’s office has until Monday, June 18 to complete the additional education hours.

Wasley declined to comment on the case. In an email to the Journal he said that though the appeal is public record and part of the judicial process, the DA’s office “cannot comment on a pending matter.”

“The District Court Judge has not ruled on the appeal,” Wasley said in the email, “and, therefore, there is nothing to comment on.”

Calls made to Lawrence were not returned. Lawrence’s attorney, Suzanne Carlson, declined to comment while litigation was pending.

Reach Kimberly Benedict at kimberlyb@cortezjournal.com.