State Sen. Pete Lee is seeking to have a felony indictment against him thrown out, arguing it was based on incorrect information presented to a Fourth Judicial District grand jury.

Lee, a Democrat who is wrapping up his time in the General Assembly representing Colorado Springs, was indicted on two felony charges by the El Paso County grand jury in August. One is a Class 5 felony charge of falsifying his residence address for electoral purposes. The grand jury did not return an indictment on the other count.

Attorney David Kaplan, who is representing Lee, filed a motion Tuesday to have the charges dismissed, claiming incorrect information was presented by a Fourth Judicial District Attorney’s office investigator, who got it from the state’s Office of Attorney Regulation Counsel. 

The motion said the grand jury was repeatedly told “and with great emphasis, that Mr. Lee had changed his home residence” with the Office of Attorney Registration on Dec. 15, 2019.

“Mr. Guest’s testimony was unknowingly inaccurate,” the motion said, referring to District Attorney investigator David Guest. The motion said Guest testified before the grand jury in its Aug. 2 hearing and presented information obtained from the Colorado Supreme Court’s Office of Attorney Registration. Lee is a licensed Colorado attorney but on inactive status, the motion said.

“The government went to great pains to establish a critical piece of evidence – Mr. Lee’s registration documents as an attorney in the state of Colorado,” the motion said. 

Lee, indeed, submitted a N. Sheridan Ave. address on that date. The grand jury, however, was told the address Lee submitted was on W. Cheyenne Road, and at least five times – three times by Guest as he presented exhibits and two more times in a PowerPoint presentation, the motion said. 

“These misstatements and erroneous facts … are not peripheral to the charges sought,” Kaplan said in the motion. “They are a material misrepresentation of the facts used to obtain an indictment.”

“It irreversibly taints their deliberations and creates a fatal flaw in the indictment,” the lawyer added.

A motions hearing is now scheduled for Oct. 18.

Fourth Judicial District Attorney spokesman Howard Black told Colorado Politics that, on Aug. 15, the Colorado Supreme Court attorney registration office submitted a sworn affidavit to the district attorney’s office. The information contained in that sworn affidavit, submitted by the state Supreme Court’s Attorney Registration office, was communicated to the grand jury, which eventually returned the indictment that is currently before the court.

On Sept. 15, the Attorney Registration office “contacted our office to make corrections to their previous submitted sworn affidavit. On Sept. 17, the Attorney Registration office submitted a corrected sworn affidavit to our office. Obviously, we are taking this information under review,” Black said. 

The El Paso County indictment against Lee came shortly after the second meeting of an interim legislative committee that is considering reforms to the state’s judicial discipline process. Lee was forced to step down, handing the chairmanship to fellow Democrat, Rep. Mike Weissman of Aurora.

Lee was the main sponsor behind Senate Bill 22-201, which gave independent funding to the Colorado Commission on Judicial Discipline, as well as created the interim committee. Lee was named chairman of the eight-member legislative committee and pressed forward with an aggressive agenda of testimony that included a variety of allegations of a discipline system mired in secrecy and ineffectiveness.

The discipline commission had taken the unusual steps of publicly testifying to problems it was having with the Judicial Department, specifically the Office of Attorney Regulation Counsel. That office, though it handles discipline of licensed attorneys, also controlled the funding to the commission.

When the commission last year launched its own investigations into allegations that some judicial discipline had gone unreported or was lax at best, the commission opted to hire its own investigators.

Normally, it relied on investigators from Office of Attorney Regulation Counsel to handle its inquiries, but that agency already hired its own outside investigators to look into an inquiry it had launched into former Chief Justice Nathan “Ben” Coats, who is at the center of allegations about a quid pro quo contract to a former department official.

The commission said it was stalled in its efforts, much of which was dictated by the Supreme Court, which ultimately controlled the funding.

Lee was drawn out of his Senate district by the Colorado Redistricting Commission last November and, hence, unable to run for a second term. As a result, he would not be a sitting legislator in any forthcoming legislation relative to the interim committee’s work.

That committee earlier this month crafted drafts of an amendment to the Colorado Constitution that would separate the discipline commission into its own independent agency within the Judicial Department and a variety of other key changes.

It also drafted a pair of bills that are expected to be presented to the General Assembly in the upcoming session, including the creation of an ombudsman’s office to deal with complaints of judicial misconduct and help those who make the filings. Additionally it would remove the Supreme Court from its current role in judicial discipline and create a panel of three people – a judge, a lawyer and a citizen – who would preside over any formal charges.

The constitutional amendment would require voter approval in the 2024 general election.

The committee is scheduled to meet Sept. 30 to pass the bills and resolution.