A Steamboat Springs attorney on Thursday discussed why a preliminary hearing might have favored the former Steamboat Springs Police Department officer charged with a felony.
Kris Hammond has had several clients who have been charged with felony attempt to influence a public servant, the same crime that Kristin Bantle has been charged with by the Routt County District Attorney's Office.
"I don't know of one case where this charge has made it past halftime at a trial," Hammond said.
According to the charge and court documents, Bantle was charged with the Class 4 felony for providing false information related to drug use on an employment application submitted to the Sheriff's Office in 2013.
According to Colorado Revised Statutes, the definition of the attempt to influence a public servant charge is, “any person who attempts to influence any public servant by means of deceit or by threat of violence or economic reprisal against any person or property, with the intent thereby to alter or affect the public servant's decision, vote, opinion, or action concerning any matter which is to be considered or performed by him or the agency or body of which he is a member.”
"It's bribing a public official," Hammond said.
The definition of the charge is broad, and prosecutors locally have tried to apply it in several ways.
In one case, Hammond said he had a client who was charged with attempt to influence a public servant because of threats his client made to a police officer. Hammond said the prosecutor's reasoning was that by making the threat while in custody, the client was trying to get the officer to set him free.
"The judges are saying 'no, that's not what this charge is,'" Hammond said. "It's just a misuse of the charge. That's what I think, and that's what the judges think too."
Hammond said that by holding a preliminary hearing, a defense attorney can get the issue before a judge early in the process with the hope that the judge will dismiss the charge.
Procedure called into question
A preliminary hearing for Bantle was scheduled for Wednesday but ultimately did not happen, and the case was set for trial.
It was disappointing for Bantle as well as her attorney, Matt Tjosvold.
According to state laws, people charged with a Class 4, 5 or 6 felony are only entitled to a preliminary hearing if they are in custody. Because of that, prosecutors initially objected to holding the hearing. The case was then moved from county court to district court. The prosecution then changed its mind about allowing the hearing, and Hill, a district court judge, scheduled the hearing, which is rarely held in district court.
On Monday, Hill wrote in an order that the court should not have granted a preliminary hearing in the “absence of some sort of factual inquiry.” She ordered the prosecution to file "some sort of factual basis for the charge immediately."
The prosecution submitted a report prepared by the District Attorney Office's investigator, and then Hill ruled there was probable cause for prosecution. She stated Bantle was not entitled to a preliminary hearing.
In a motion submitted to the court, Tjosvold asked Hill to reconsider. Tjosvold wrote that he and Bantle expended substantial resources preparing for the hearing, and Tjosvold took issue with Hill making a decision based on the report supplied by the prosecution.
"The court's review of a hearsay document, without the constitutionally protected benefit of defendant's right to confront witnesses, without the procedural benefit of an open and public hearing on the issue, without the procedural benefit of argument from counsel is inappropriate," Tjosvold wrote.
Tjosvold wrote that Hill had no authority to make a probable cause determination while reviewing the prosecution-supplied report in her chambers.
"The court's decision to vacate the preliminary hearing in this matter less than 24 hours before it was scheduled to commence — without the request of either party, and in the manner performed — was not supported in law and was inappropriate," Tjosvold wrote.
Hill denied Tjosvold's request for Hill to reconsider denying the preliminary hearing.
During the time allotted for the preliminary hearing Wednesday, Bantle pleaded not guilty, and a three-day jury trial was scheduled to begin Dec. 1.
To reach Matt Stensland, call 970-871-4247, email mstensland@SteamboatToday.com or follow him on Twitter @SBTStensland