Sharles Johnson had a day in court on December 9 -- but it wasn't quite the day he'd planned.
As I reported in the December 3 feature article "Sharles Johnson Is a Hero to His Children -- and the Arch-enemy of Jefferson County," Johnson was arrested at his Illinois home last February on a felony warrant from Jefferson County charging that he'd stolen $5,000 in Medicaid, food stamps and other benefits, and flown back to Colorado (after ten days in jail) accompanied by two Jeffco deputies. The charges stemmed from a time four years earlier, when Johnson and his wife had been entangled in a social services case that saw their children taken away and put in foster care, then finally returned months later.
Johnson believes the charges were retaliatory because he not only beat the system but continues to complain about the Jefferson County Department of Human Services.
He wants to air those complaints at a jury trial and has refused any plea deals. But his trial, originally slated for December 9, had been continued a few days earlier when Jeff Gillio, Johnson's public defender, argued that he hadn't had time to familiarize himself with 1,500 pages of late discovery.
So Johnson instead returned to Colorado for a motions hearing. It started with Judge Tamara Russell telling him -- as she had before -- that he had to stop sending her letters because it's against the rules for her to read them. A Missouri man had also e-mailed her Westword's article about Johnson, she said, which was improper.
Moving on, Russell said it was her understanding that Johnson had a conflict with his attorney and that a judge was waiting in another courtroom for a conflict hearing. There had been some misunderstandings, Johnson told the judge, but he no longer felt there was a conflict. Gillio said he wanted the conflict hearing, anyway and Russell agreed, noting that Johnson had asked her three times before for a new attorney. At the closed hearing, Gillio and Johnson decided to proceed together, and they then returned to Russell's courtroom.
The first defense motion was to suppress statements that Johnson had made in e-mails to DHS accounting clerk Kirk Kross, who in January had sent him a promissory note regarding the $5,000 in benefits that Johnson had allegedly been overpaid; although Johnson didn't think he'd collected more than he was entitled to, he wanted to clear things up. The note Kross sent him said the plan was to pay back "money to which I was not entitled at the time," but Kross had told Johnson he wouldn't be admitting to anything by signing the note.
"You tell them they're not admitting to anything even though the note you send them says they're admitting to something?" Gillio now asked Kross .
"That's correct," Kross said.
Gillio told the judge that Kross was attempting to solicit incriminating statements, and did so misleadingly. He could have told Johnson that criminal charges were pending, told him to contact a lawyer. Instead, he told Johnson he was not going to "play games" and that if Johnson didn't send the note back, the bill would be sent to collections. He never said Johnson might be sent to jail, charged with felony theft and forgery charges. The Jeffco prosecutor argued that Kross was just doing his job trying to collect on a debt.
The judge sided with the prosecutor. A suppression motion only applies to coercive law enforcement activity, she said; Kross is not an agent of law enforcement, and there was no evidence that anyone from the district attorney's office or the police had talked to him. Furthermore, she didn't see anything in the e-mails that would qualify as threatening.
The defense's next motion was to dismiss the case based on discovery violations. Elizabeth Connell, a public defender working with Gillio, argued that the defense was only provided Johnson's e-mail correspondence with Kross on November 10, after they'd asked for it. The week before, they'd received a letter from DHS about the fraud investigator on Johnson's case; it revealed that her supervisor had concerns about her performance regarding truthfulness. There were discrepancies between reports the investigator had given to Johnson and the reports in discovery, Connell said, which called into question what other discovery might be missing. In all, the DA had added 1,500 pages of discovery after the one-month-to-trial deadline.
Johnson had been forced to give up his right to a speedy trial in order to have effective counsel because the DA had violated discovery rules, Connell argued, so the charges should be dismissed.
The prosecutor said there was no violation, because he'd turned over the documents as soon as he'd gotten them. And even if there had been a violation, the defense had already gotten the remedy they'd asked for: a continuance.
The judge agreed, saying she had no reason to believe there was bad faith on the DA's part. And even if there had been, there's no law to support a dismissal based on a discovery-rule violation. The defense had already gotten its continuance, she said, and the right to speedy trial is secondary to the right to effective counsel.
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A defense motion to dismiss the theft charge because the three-year statute of limitations had expired since the DHS had discovered the alleged crime in September 2004 was likewise quashed, after the prosecutor argued that Johnson had continued stealing until September 2005.
The only motion granted was spousal immunity, to protect Rebekiah Johnson (shown above with Sharles) from having to testify against her husband.
A new trial date was set for May 19, 2009 -- the first date Johnson's attorneys were available. Russell asked Johnson if that was all right. Although he'd prefer to settle everything sooner, he told the judge, he's prepared to wait for his day in court. -- Jessica Centers