Colorado’s second-highest court decided last week a Logan County judge withheld government documents that he should have provided to lawyers for a juvenile defendant who stood trial for unlawful sexual contact.

A three-judge panel for the Court of Appeals declined to overturn the defendant’s conviction outright but endorsed holding a new trial if the defense can show there was a reasonable probability the outcome of the trial would have been different had former Chief Judge Michael K. Singer disclosed the records as required.

In August 2018, prosecutors charged a teenager identified as Q.S. with sexually abusing two other children. Although Q.S. requested a trial by jury, Singer instead chose to hold a bench trial, in which a judge would decide whether Q.S. had committed the charged offenses.

At Q.S.’s trial, retired District Court Judge Daniel J. Kaup ultimately adjudicated him delinquent, which is the juvenile equivalent of finding someone guilty.

Q.S. advanced several arguments on appeal, including that Singer was wrong to deny his request for a jury trial. While the Court of Appeals panel acknowledged the Colorado Supreme Court’s guidance on the issue was somewhat unclear, it believed the law supported Singer’s decision to hold a bench trial.

The panel also decided Kaup, the presiding judge at trial, did not commit an error when he denied Q.S.’s request for a new trial based on newly-discovered evidence – specifically, the admission by one of Q.S.’s victims after trial that he had lied. Kaup believed the allegations of the victim recanting were “insufficient to warrant a new trial and not likely to result in an acquittal.”

Judge John Daniel Daily, writing for the appellate panel, noted Colorado courts have considered recanted testimony as unreliable and untrustworthy. Based on Kaup’s own experience with Q.S., the victim and the circumstances of the case, “we discern no abuse of discretion on the part other trial court in denying Q.S.’s motion for a new trial,” Dailey wrote in the Nov. 10 opinion.

However, the panel agreed that Singer had improperly handled records from Logan County’s department of human services that the defense believed to contain information favorable to Q.S., plus material that could be used to cast doubt on the victim’s testimony.

Singer had privately reviewed the documents and disclosed some to the defense with redactions, but withheld others for various reasons. Under prior Court of Appeals precedent, trial judges must disclose information from department of human services records if it is exculpatory or can be used for impeachment of witnesses. Judges should also provide the records if they contain incriminating information that would “materially assist in preparing the defense.”

The appellate panel reviewed the disputed records and concluded they fell into those categories. The documents could have helped show the victim fabricated his accusations against Q.S., but also contained statements that further suggested Q.S. had committed the charged offense.

“The question, at this point, is what to do about the trial court’s not disclosing these documents to the defense,” Dailey wrote.

The panel instructed the trial court to provide the relevant records and give Q.S. the opportunity to argue the outcome of the trial would probably have been different had the defense gained access to the disputed information.

The case is People in the Interest of Q.S.