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El Paso County grand jury that indicted Democratic state senator was given incorrect information

Attorney files motion asking for felony charge to be dismissed
Colorado Sen. Pete Lee directs a hearing about the child sexual abuse accountability act before the Senate Judiciary Committee in the State Capitol on March 11, 2021, in Denver. (David Zalubowski/Associated Press file)

COLORADO SPRINGS – El Paso County prosecutors unwittingly presented false information to a grand jury that indicted Democratic state Sen. Pete Lee on a felony charge of lying about where he lives for the purpose of voting.

Grand jurors were told that Lee, a lawyer, changed the address for his attorney registration to a home outside the state Senate district in Colorado Springs that he represents. But that claim was based on incorrect information provided to prosecutors by Colorado’s Office of Attorney Registration, according to a motion filed by Lee’s attorney in El Paso County District Court on Tuesday.

Prosecutors acknowledged the error, with a spokesman for the El Paso County District Attorney’s Office telling The Colorado Sun on Tuesday that they were first informed of the mistake by the Office of Attorney Registration on Sept. 15.

“That information is under review,” said Howard Black, the spokesman.

The El Paso County District Attorney’s Office posted a tweet Wednesday saying it was moving forward with the case.

“Despite this correction from the Colorado Supreme Court Attorney Registration Office, the evidence continues to support a determination that probable cause exists to reasonably believe the defendant committed the crime charged in the indictment,” the tweet said.

Lee’s attorney, David Kaplan, filed a motion to dismiss the felony charge against Lee as a result of the error.

In court Tuesday, Kaplan said he was not accusing the District Attorney’s Office of intentionally or maliciously providing misleading information to the grand jury. But he argued that “it is very clear that the misinformation given to this grand jury was material to the decision to indict.”

Lee, the chairman of the Senate Judiciary Committee, told The Sun on Tuesday that he agrees the whole case could unravel as a result of the mistake.

“We believe that the erroneous information would have resulted in no indictment being issued,” Lee said.

Lee was charged in early August. The grand jury indictment, which is five pages long, alleges that on March 3, 2020, Lee “voted giving false information regarding the elector’s place of present residence.” March 3, 2020, was the date of the presidential primary.

Lee had previously been accused of not living in his state Senate district – Senate District 11 – which is a requirement under state law. The Colorado Springs Independent reported in June 2020 that Lee listed his address as a house near downtown Colorado Springs that is in his Senate district, rather than a home he owns in Cheyenne Cañon that is listed as his wife’s home. The Cheyenne Cañon house is in Senate District 12.

According to Kaplan’s motion, grand jurors were told – “repeatedly” and “with great emphasis” – that Lee’s address in the state’s attorney registration system was changed from the home near downtown Colorado Springs to the Cheyenne Cañon home on Dec. 15, 2019.

“These misstatements and erroneous facts presented to the grand jury are not peripheral to the charges sought and the indictment rendered, they are a material misrepresentation of the facts used to obtain an indictment,” Kaplan wrote in the motion. “To allow the grand jury’s indictment to stand, in light of the material erroneous information provided for their consideration is to make a mockery of the use of the grand jury and lose the confidence citizens have in an indictment being a fair determination of whether a prosecution should be initiated.”

Black, the spokesman for the District Attorney’s Office, says prosecutors were sent a sworn affidavit earlier this year from the Office of Attorney Registration. The office on Thursday notified prosecutors of the error and submitted a corrected sworn affidavit on Saturday.

Lee is next due in court Oct. 18. He has denied wrongdoing.

Lee is not running for re-election this year. His four-year term in the Colorado Senate ends in January. He previously served in the state House.

The Colorado Sun is a reader-supported, nonpartisan news organization dedicated to covering Colorado issues. To learn more, go to coloradosun.com.