Co-defendants in Silverthorne sexual assault case seek dismissal, citing ‘prosecutorial misconduct’
November 16, 2017
Attorneys for two men accused of sexual assault have made a flurry of legal filings since a jury convicted one of their co-defendants last month and set him up for a possible sentence as high as 48 years to life in prison.
The conviction, delivered late in the evening on Oct. 31, after more than a weeklong trial, set off nearly a dozen new filings by defense teams for Justin Erwin, 41, and Michael Gelber, 46, who will be tried together.
Paul Garvin, 46, was found guilty of felony sexual assault for his role in what prosecutors described as a late-night gang rape caught on film at a Silverthorne apartment in 2016.
In delivering its verdict, the jury decided the victim was too impaired to consent during the assault. Garvin will be sentenced next year and faces 16 to 48 years to life in prison, or a minimum 20 years probation.
This month, Erwin and Gelber's attorneys have filed motions including requests to change the trial venue, recuse Judge Karen Romeo from the proceedings and dismiss the charges entirely due to prosecutorial misconduct.
During a hearing Thursday morning, C. Robert Biondino, Gelber's attorney, inveighed against "judge shopping" by the prosecution, citing a request found in thousands of pages of discovery asking that the case be assigned to Judge Romeo.
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Biondino, an Englewood attorney who boasts on his website of a 23-0 record beating domestic violence charges at trial, brought some Front Range flair to the courtroom, making animated arguments about separation of powers and the Constitution.
Ryan Gilman, representing Erwin on behalf of Maceau Law, a Colorado Springs firm, tag-teamed the hearing, accusing prosecutors of "gross misconduct" and "blatant disregard for due process."
District Attorney Bruce Brown and deputy DA Lisa Hunt sat unruffled on the prosecution side, waiting patiently to tone down the rhetoric.
"I think what happened, quite frankly, is that counsel was surprised that there was a conviction," Hunt said, referring to Garvin's trial. "Now there's this slew of motions all of the sudden."
Brown tried to cut through what he called the "fog of the defense's vitriolic statements," saying the request for Judge Romeo was meant to limit scheduling conflicts with the court. He also argued that the flurry of defense motions were well past an August deadline.
Since Brown and Hunt always intended to join the four co-defendants' cases, they wanted them put on the same judge's docket from the start, Brown said, characterizing the request as a "heads-up" to the court.
Prosecutors say that Erwin, Garvin, Gelber and a fourth defendant, 41-year-old Ramon Villa, gang-raped a woman in Villa's apartment after a night of drinking. Villa, who awaits trial separately, allegedly recorded the four cellphone videos showing the incident.
But joining all four cases has been tricky from the start. Garvin, who argued he was the least culpable of the men and participated only briefly, chose to go it alone. He successfully blocked the state's effort to join his case, invoking his right to a speedy trial.
Erwin and Gelber allowed their cases to be joined, and will thus face trial under the joint representation of their separate attorneys. They blocked being joined as defendants with Villa, who was extradited from California earlier this year and is represented by a public defender.
Prosecutors said the videos were found on Villa's phone, potentially making him more culpable in the invasion of privacy charges filed against all four men.
Garvin was found guilty of two misdemeanor invasion of privacy counts, misdemeanors under a complicity theory. On Nov. 9, Erwin and Gelber's attorneys filed motions to dismiss those charges for lack of probable cause. They have not been ruled on.
In addition, they requested new evidentiary hearings, the preclusion of some expert testimony used in Garvin's trial and several other pre-trial considerations.
The motion to dismiss due to prosecutorial conduct was filed the day before Thursday's hearing, which was scheduled to last all day.
Instead, the hearing was cut short after an hour-and-a-half to give Brown and Hunt time to respond to the new motions and for Judge Romeo to review relevant case law. Judge Romeo set a new hearing for Dec. 4, at 2 p.m.
While the defense argued case law was firmly on their side, they agreed more time was needed. Biondino said it was wise to proceed slowly given the potentially "life-altering" consequences of the case for both his client and the victim.
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