5th Judicial District Attorney race dredges up candidates’ brushes with law
October 14, 2016
In the heated race for District Attorney of Colorado's Fifth Judicial District, challengers Bruce Carey and Sanam Mehrnia have waged campaigns blasting the incumbent Democrat Bruce Brown's past conduct and bringing to the fore past criminal charges.
At campaign forums and on radio spots, they have accused Brown of improperly reporting an accident after totaling a state-owned vehicle last year on Interstate 70. Brown denies that he violated the law, saying his opponents are making political hay of an icy spin-out.
In fact, Brown and Carey both have criminal records in the Fifth, while independent candidate Mehrnia does not, according to a Colorado Bureau of Investigation background check. Brown was charged with theft for stealing a plant in Vail when he was 21, while Carey was charged with bribery and witness tampering in 1993, which he plea-bargained to professional misconduct.
Carey, the Republican nominee, said the charges against him were spurious, brought by the district attorney at the time as reprisal for Carey considering a run against him. Brown chalked his infraction up to a youthful indiscretion that he regrets.
“I don’t understand why we can negotiate nuclear spills and first-degree murders but not DMV hearings.”Bruce CareyRepublican candidate for DA
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Carey's witness tampering charges stemmed from separate incidents in 1992 and 1993 that led to a wire investigation and resulting bribery charge, according to court documents.
Under Colorado law, DUI suspects who refuse a blood alcohol test must surrender their driver's licenses for a year following a DMV hearing. If, however, the officer who made the stop fails to show up at that hearing, the matter is dropped.
According to affidavits, Carey asked police officers from Leadville and Eagle to not show up to clients' DMV hearings, which the prosecution argued was witness tampering.
Carey maintains that this was common at the time, a claim corroborated by testimony from retired Eagle County Sheriff AJ Johnson, who said his deputies could attend DMV hearings at their discretion. He added that he was aware of attorneys occasionally asking deputies to consider skipping hearings and that generally he didn't see that to be a problem.
"It was kind of an unwritten rule (at the Sheriff's Office) that they wouldn't hammer people if they were cooperative and didn't have priors," said former Eagle County Chief Deputy DA Jim Fahrenholtz.
"I don't understand why we can negotiate nuclear spills and first-degree murders but not DMV hearings," Carey said. However, he said he understands he had still broken the rules and has never since repeated the offense.
Those actions, however, prompted an investigation into Carey that culminated in a bribery charge based on secretly recorded conversations with then-Leadville assistant police chief Rodney Fenske, who now serves as Lake County Sheriff. Fenske could not be reached for comment.
According to a transcript of one of those conversations, Carey was having trouble getting a better deal from deputy District Attorney Lindsey Topper for his client, who was arrested for a DUI. Carey felt the deal, which carried jail time, would derail his client's efforts to get his life back on track, and he wanted Fenske to pressure the deputy into softening up.
In a transcript from a later conversation, Fenske told Carey he wanted to get a seeing-eye dog for his blind brother in Arizona, but they were out of his price range.
The transcript continues:
"RF: But, I mean, if you want to, uh, donate your money to, uh, help my brother buy the drug (sic), help my brother buy the blind dog, we could do that.
BC: Uh huh.
RF: And I will pressure the sh** out of Lindsey.
BC: What I will do on (client)
RF: Uh huh.
BC: Is I'm going to let him know that if we get him a deal that keeps his job and lets him do jail on weekends and vacations, that the fee to me will be two grand.
BC: And out of that I can buy a twelve hundred dollar drug (sic) dog."
RF: All right. If you just give me the money, I'll send it to him and he can buy his dog.
RF: Because I've been trying to work out some way to get him to…
BC: Yeah. And I want to structure it in a way that you and I are not doing it tit for tat.
BC: I am not going to do it in any way to bribe. And you're not accepting it in any way as a bribe.
BC: That we're only doing this in the interest of justice. I make a charitable contribution to a, uh, blind dog program in Arizona. That it's being done as a charitable contribution. So that there is no repercussions for either your job.
RF: Or yours.
BC: Or mine."
Carey said he was targeted by wire conversations as many as 10 times and that he didn't offer up a bribe, although he did solicit Fenske's help.
"I couldn't get anywhere with the deputy DA, so I asked the police's supervisor if he could help," Carey said. "He came up the idea for a possible plea bargain, and out of the blue he came up to me wearing a wire and caught me off guard."
"I got duped, I admit," he said. "I had only been an attorney for four years, and I've been a lot more careful since."
Carey added that charitable contributions in pleadings — where the defendant agrees to volunteer for or donate to a charity — were a common practice, although he acknowledged the arrangement with Fenske was atypical.
Charitable contributions are still around in the Fifth, although they were reorganized under Bruce Brown in 2013. The defense and prosecution no longer decide recipient charities and donation amounts on a case-by-case basis; rather, plea-by mail contributions go to a fund at the DA's office that is distributed in equal amounts to qualifying charities.
"I don't know if that type of deal was common, but I wasn't involved in negotiations," said retired Lake County Judge Joseph Fattor, who left the bench in 2001. "I thought the whole idea of charitable contributions was a terrible idea and no good would come of it. And I think I was proven right."
"You get into sticky territory when you're dealing with (charitable contributions)," said Fahrenholtz. "Does it become a bribe? It's always been an area I do not like to deal with much, to be honest."
In 1997, the Colorado Supreme Court censured Carey for the case, although it noted that Carey had no prior discipline, had cooperated with the inquiry and expressed remorse.
brown hits black ice
Early in the morning on Dec. 16, 2015, Brown was driving his state vehicle westbound on Interstate 70 when he hit an icy patch of road near mile marker 171 and spun out, totaling the vehicle. He had the car towed, and called an employee to come pick him up.
Brown said he called Vail police, who directed him to the Colorado State Patrol. He said a trooper instructed him to file an online report, which Brown provided to the Summit Daily. The report notes that there was no accident alert, the damage was in excess of $1,000 and did not involve private property. Under the section titled "Personal statement," it reads "online submission approved by Cpl. Marion."
His opponents say that this constitutes failure to report an accident, claiming Brown should have stayed on scene and that online reporting is not allowed when an accident involves damage to public property.
"The accident has been reported," Brown said. "In my opinion, I followed the law to the letter."
He declined to comment further, saying that he has made the report public and was following the instruction of Colorado State Patrol.
Lauren Butler, a former deputy who left the DA's office for private practice earlier this year, said Brown should have been charged with failure to report an accident, an offense that can carry a year's suspension of driving privileges.
Butler claimed that Brown should have technically appointed a special prosecutor from outside the Fifth to charge him.
"Typically, those cases are pleaded down and the defendant pays a fine," she said.
A local resident has filed a formal complaint against Brown with the Colorado Supreme Court and provided a copy of it to the Summit Daily. It alleges that Brown committed two misdemeanors.
A representative of the High Court declined to comment on the complaint or whether a formal investigation would be pursued.
A clerk at the Vail courthouse said that the report from Brown's admitted plant theft would no longer be on file since their record keeping was minimal until the 1990s.