Summit County judge recuses herself in pair of Silverthorne sexual assault cases
December 4, 2017
A Summit County judge recused herself from the felony sexual assault cases of two men late last week, delivering an easy if potentially fleeting victory to the pair's defense attorneys, who ramped up their pre-trial maneuvering after a jury convicted a co-defendant in the case in October.
In an order issued Friday, Dec. 1, Judge Karen Romeo granted the defense's motion to recuse herself because prosecutors had requested she be assigned the case, which involved four men who allegedly sexually assaulted a woman in Silverthorne in 2016 while she was incapable of consenting.
Justin Erwin, 41, and Michael Gelber, 46, are set to be tried together in January, charged with sexual assault and lesser invasion of privacy and unlawful sexual contact charges.
In her order, Judge Romeo eschewed the bombastic language of the defense, which had accused prosecutors of gross misconduct and "judge-shopping." Romeo said that while she did not believe prosecutors acted in bad faith, case law demanded she re-assign the case.
“Despite the potential delay it may cause, or heavy load it may place on another Judge, this Court simply will not knowingly violate Mr. Gelber’s or Mr. Erwin’s due process rights.”Karen RomeoSummit County Judge
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"Irrespective of motive, it remains undisputed that the prosecution did manipulate the case assignment system by requesting Judge Romeo be assigned the cases," Romeo wrote.
The motion to recuse was filed shortly after one of Gelber and Erwin's co-defendants, Paul Dee Garvin, was convicted of sexual assault, a class-two felony, after a lengthy trial. He faces 16-48 years to life in prison or 20 years to life probation.
Romeo presided over that trial and will also conduct Garvin's sentencing hearing on Jan. 18, 2018. In her recusal order, Romeo referred Erwin and Gelber's cases to Judge Mark Thompson.
In the motion to recuse, Gelber and Erwin's attorneys cited one page among thousands of court documents in which a prosecutor requested the cases be assigned to Judge Romeo's court.
During a hearing last month, the District Attorney's Office argued that the request was intended to avoid scheduling conflicts within the small Summit County court system and assure deputy district attorney Lisa Hunt, who investigated the incident and built a relationship with the victim, remained on the cases.
The defense successfully argued that this was a violation of Erwin and Gelber's due process rights entitling defendants to an impartial method of judicial assignment.
In addition, Romeo found that allowing prosecutors to steer cases to particular judges could give the prosecution an unfair advantage, possibly involve abuse of the judicial system, harm the appearance of impartiality and arguably threaten the independence of the judiciary.
The recusal leaves open for now the fate of other defense motions to dismiss the case and to re-assign it to a different venue entirely. Judge Thompson will rule on those questions, although the cases have not yet been assigned to his docket. A status conference is scheduled in Judge Romeo's court for Dec. 13.
The recusal will further delay the cases, which have been complicated by initial difficulties accessing cell phone evidence and the inability of prosecutors to try all four men together. The point was not lost on Romeo, but the clear legal precedent easily won out.
"This Court is aware granting this Motion may result in delay, and could be burdensome for another Judge since it will take time for them to get familiar with the case," Romeo's order read. "Despite the potential delay it may cause, or heavy load it may place on another Judge, this Court simply will not knowingly violate Mr. Gelber's or Mr. Erwin's due process rights."
Prosecutors initially sought to join all four cases, but Garvin's attorney successfully blocked the effort by invoking his right to a speedy trial. Erwin and Gelber, meanwhile, resisted efforts to be tried with the fourth co-defendant, 41-year-old Ramon Villa.
Judge Thompson is already handling Villa's case and found probable cause for all of the charges against him during a preliminary hearing last week. Villa's arraignment is set for Dec. 12.
The alleged assault occurred in Villa's Silverthorne apartment on the night of St. Patrick's Day in 2016. Investigators found four videos of the incident on Villa's phone. Those led to the arrest of the four men and served as key evidence in Garvin's trial.
Villa was extradited from California earlier this year. He is being represented by a public defender.
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