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Last week, a mistrial was declared in the case of Noe Gamez-Ruiz, a commercial truck driver charged with criminally negligent homicide for a November 2016 accident that killed Colorado State Patrol Trooper Cody Donahue.
Now, political insiders are speculating that the way the proceedings were short-circuited — the judge took action after defense complaints that prosecutors withheld relevant evidence — could impact one of the biggest races on the November 2018 ballot. Why? Because the high-profile embarrassment took place on the watch of 18th Judicial District DA George Brauchler, the Republican nominee for Colorado Attorney General, and a new hearing in the matter is scheduled to take place shortly before election day.
Brauchler's response to this theory: "I can either worry about trying to get justice or I can worry about publicity during the political season," he says. "We've had too much of the latter in politics, and not nearly enough of the former. So I'm going to worry about trying to get justice."
As Brauchler points out, he wasn't in the courtroom of Douglas County District Court Judge Shay Whitaker on Thursday, September 13, two days into the trial, when things went sour. "I was at the office working on two other matters when the phone rang. It was my team, saying, 'We have a potential problem.'"
Here's how Brauchler describes what happened, as conveyed to him by his associates.
"Earlier in the day, there was a witness who had seen this truck driving, and he was going to testify about his observations," he notes. "Nothing about what he was saying changed, and that was going back two years. But prior to him testifying, there had been an exchange of emails between him and my prosecution team. It was something about, 'We want you to watch this video,' or 'Have you seen this video?' But during the course of the response, this witness said, 'I'm in a commercial driver's-license class'" to become a professional trucker himself.
According to Brauchler, "My guys apparently thought nothing of this. They just said, 'We'll see you on such and such a date.' So the witness testifies at the trial, but somehow this email ultimately got to the defense," led by attorney Harvey Steinberg, who's best known for representing Denver Broncos in trouble. "And the defense argued that this was incredibly relevant — that the defendant is a commercial truck driver and we have a guy in commercial-truck-driving school who's going to testify. Our guys said, 'This isn't expert testimony.' But the judge said that the standard-of-care in this case is premised on this guy being a commercial driver, so this fact should have been turned over to the defense right away."
By the way, Steinberg's efforts on behalf of Gamez-Ruiz, who was sober at the time of the crash, are based on the premise that Donahue's death was a terrible accident, not a crime.
In Brauchler's view, the failure to turn over the email "probably wouldn't have been enough" to trigger a mistrial. "But apparently, the defense had an issue with a pathologist who was an expert witness. She testified under direct examination completely consistent with the report she generated, and that we turned over to the defense. But on cross [examination], the defense went into areas like, 'Hypothetically, could this part of the truck — like the mirror — have caused the mortal wound?' She answered back and forth with Harvey on that. And then my guy got up to redirect and said, 'As long as we're talking hypotheticals, could the lock on the truck have been the cause?' Because the lock was closer to Trooper Donahue than the side mirror."
The pathologist "said something along the lines of 'Yes, it's my opinion that the lock struck Trooper Donahue and caused this mortal wound,'" he continues. "And Harvey stood up and said, 'That's not in her report. That's extra information. The prosecution never gave that to us.'"
Judge Whitaker reacted by clearing the courtroom. Shortly thereafter, the pathologist said this theory had come up the Monday before the trial during pre-trial conversations with prosecutors, "but our guys said, 'That's not what we recall,'" Braucher allows. "So the judge went back and considered everything and then said, 'Based on these two things, we have to come back and do this trial again,' and set an October 26 date for any additional hearings."
More wild cards could be dealt before then. "I presume Harvey will file additional motions saying that we need to take other steps by way of sanctions," Brauchler acknowledges. When asked if that could further delay a new trial, which is currently set for February 12, 2019, he replies, "Boy, I hope not."
As for how he feels about the mistrial, Brauchler frames his reaction in terms of Donahue's family: "I'm completely frustrated that this happened. Over the past two years, I've gotten to know Cody's widow, Velma, and his sister, Erin, and for them, this case really represents the last formal business of his death. I cannot imagine what it takes to get yourself steeled for something as emotional as this and go into court thinking, 'One way or another, it's all going to be over,' and then to have something like this happen and realize, 'It's not going to be over. It's going to take five or six more months.' I just feel horrible for them. They deserve closure. They need closure and they don't have it."
Could supporters of Democratic Attorney General nominee Phil Weiser use the Donahue mistrial as a cudgel with which to bash Brauchler's reputation as a prosecutor — a cornerstone of his campaign? Doing so could be tempting, particularly given the timing of the potentially fiery October 26 hearing; a knowledgeable source tells Westword that Judge Whitaker was fuming over the prosecutors' alleged oversights.
For his part, Brauchler wouldn't be surprised by this tactic. "I think there's a level of desperation politically in some candidates, where they will try to make hay out of anything they possibly can. It's one of the worst parts of modern politics and it discourages people from getting involved, because they know anything can be used to not just win but to destroy another person. But at no time did I ever tell my guys, 'No matter what, let's make sure this hearing is after the election.' I'm not built like that. I take my duty more seriously than any political aspiration I possibly can have."
He adds, "I'm more than happy to talk about the things that go right and the things that go wrong in the cases we handle. And I would trust that the public would view any political tack for what it is."
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