Lawyers for Rock-Throwing Murder Suspects Fight Over Polygraph Video Before Trial

The last of the three teenage defendants in the rock-throwing murder case of Alexa Bartell fought in court today to obtain footage of a polygraph test taken by another one of the rock throwers who is expected to testify against him.

Martin Stuart, defense attorney for Joseph Koenig, argued that his client will likely be getting called out by the other teen — Zachary Kwak, who took a plea deal from Jefferson County prosecutors last month — during the course of Koenig's upcoming murder trial, and that the polygraph video would possibly be a great way to attack Kwak's credibility. He was only given a summary report about it during discovery.

"We're set for trial in less than a month. I fully expect that Mr. Kwak is going to testify and is going to be a very important witness for the prosecution against Mr. Koenig," Stuart told First Judicial Judge Christopher Zenisek.

"We have seen lots and lots of polygraphs in this case, and there are polygraph protocols that are in place. Those protocols require an extensive pre-test, which goes through all kinds of issues that bear on credibility, which is why we want these materials," Stuart explained.

Kwak, Koenig and another teenage defendant, Nicholas "Mitch" Karol-Chik, were all charged with first-degree murder last year in connection to a series of road attacks on April 19, 2023, in which they allegedly hurled landscaping rocks at oncoming cars from a moving vehicle. Police say at least seven motorists were targeted by the teens, who were all eighteen at the time.
Bartell, a twenty-year-old driving on Indiana Street near Rocky Flats National Wildlife Refuge, was killed after a four-to-six-inch rock was thrown through her windshield while the teens were traveling at a speed of 80 miles per hour, according to police.

Karol-Chik and Kwak both took plea deals last month that saw them get reduced sentences.

Karol-Chik pleaded guilty on May 15 to felony charges of second-degree murder and an added count of criminal attempt to commit first-degree murder. He's facing a possible maximum sentence of 72 years in prison.

Kwak pleaded guilty on May 10 to three felony charges of first-degree assault, second-degree assault and criminal attempt to commit second-degree assault as part of a plea agreement, and is facing twenty to 32 years behind bars.

The young men were originally looking at life if convicted. They both accused Koenig of throwing the rock that killed Bartell, as well as being behind other rock-throwing incidents that were allegedly committed months prior to the trio's spree on April 19, 2023.

It's unclear whether Kwak and Karol-Chik agreed to testify against Koenig in exchange for plea deals, but Stuart told the judge he plans to use the polygraph video in question to search for statements made by Kwak that could be used against him during a cross-examination.

"When we are cross-examining Mr. Kwak, we have the ability to question his credibility in front of a jury," Stuart said. "Those materials — that pre-test information — are going to be very relevant for us."

Kwak's lawyer, Emily Boehme, had filed a motion to quash a subpoena from Koenig's defense team to obtain the polygraph video, prompting the court appearance. She argued that footage in the video should be sealed due to attorney-client privilege and work-product protections.

Stuart already has footage from three other polygraph examinations that were done in which Kwak was found to be truthful, along with a summary report on the test in question.

Boehme told Zenisek that the defense should have "hours of video regarding Mr. Kwak's statements" and more than enough information from the report, and questioned the need to ask for more.

Stuart called it a matter of due diligence.

"That's like saying, 'If you have a snitch witness who's done four different interviews, you've got three of them, why do you need the fourth?'" he asserted. "Well, of course you need the fourth, because there could be information in there that contradicts the statements from the other videos."

Both Stuart and Boehme cited court cases from the past to back up their arguments.

Kwak's attorney pointed to a Colorado Supreme Court case from 1987, Hutchinson v. People, in which a forgery defendant's conviction was reversed after his lawyers proved that the disclosure and use of handwriting samples by the prosecution at trial — obtained through a defense-retained expert, along with expert statements, opinions and conclusions — violated his attorney-client privilege and "constitutional right to effective assistance of counsel, his constitutional privilege against self-incrimination, and the confidentiality protected by the work-product doctrine," per the court's ruling.

"It's not as simple as this whole thing geared toward assessing someone's credibility. There are casual conversations that are held that have nothing to do with the case or may elicit information that is protected that should not be disclosed," Boehme argued.

Stuart, meanwhile, cited a decision in the People v. Spykstra Supreme Court case from 2010, in which five factors were laid out for defendants to proceed with a subpoena for materials, including whether those materials are relevant to a case and whether their retrieval is not an "impermissible fishing expedition," per the ruling.
"This is clearly, clearly met," Zenisek said, siding with the defense.

The judge noted how there was "reasonable likelihood" that the subpoenaed materials exist — in this case, the polygraph video — and that the materials are, in fact, evidentiary and relevant to the case, which are two major prongs to People v. Spykstra and Stuart's argument.

"The court accepts the proposition that there may be some statements that maybe don't directly bear on the facts of the case," Zenisek explained. "But we are, after all, talking about the process of putting together information for the purpose of presenting it to the prosecution, for the purpose of saying, 'If there's an agreement and a plea deal,' and ultimately, that's where we all ended up. So I don't think it can be said that this video is not evidentiary or relevant."

Prosecutors told Zenisek that they agreed with Stuart's arguments pursuant to Spykstra, and were also in favor of an in-camera review and edit of Kwak's polygraph video by the court, which would be provided to the prosecution and Koenig's defense team and include relevant portions of the video spliced together.

Stuart didn't object to an in-camera review, but reiterated that "materials should be turned over."

Zenisek wound up agreeing to do the review, asking both Koenig and Kwak's teams to give him some time to go through the footage.

"I am a little skeptical of that argument, but at the same time, understanding how important privileges and privilege assertions are," the judge said, adding that he'll try to "turn [the in-camera review] around quickly."

A pre-trial hearing was set for July 17. Jury selection is scheduled for July 19.