Colorado’s second-highest court ruled on Thursday that an elected district attorney was justified in suing the Huerfano County sheriff over persistent problems in evidence handling that compromised numerous prosecutions.

Last year, Third Judicial District Attorney Henry Solano obtained a permanent injunction against longtime Sheriff Bruce Newman, in which a trial judge ordered Newman to hand over evidence in a timely fashion and maintain proper tracking systems.

The injunction came after testimony that Solano’s office was forced to dismiss cases due to undisclosed evidence — in one instance, a drug case where the undersheriff forgot to send off the drugs for testing.

Newman asked the Court of Appeals to answer whether the criminal rules governing prosecutors’ disclosure of evidence can be enforced against him in the first place. In response, a three-judge appellate panel noted the question was actually whether Solano could seek to fulfill his own obligations as a prosecutor by obtaining a court order telling Newman to fulfill his.

The answer was yes.

“The prosecutor knows that any violation under the rule will be attributed to him,” wrote Judge Sueanna P. Johnson in the Aug. 15 opinion. If law enforcement agencies with chronic disclosure problems could not be forced into compliance, a prosecutor “would be left with no remedy, meaning the prosecutor would continue to be sanctioned by the court, including having criminal prosecutions dismissed.”

Thomas Dybdahl, a former public defender and author of a book on Brady v. Maryland, the U.S. Supreme Court decision generally obligating prosecutors to turn over evidence favorable to the defendant, said he is pleasantly surprised the appellate panel did not simply give “lip service” to the principle of timely disclosures.

“Based on my experience, DA Solano is unusually conscientious for a prosecutor,” he said. “And while it’s common for courts/judges to admonish officers (and prosecutors) for not complying with disclosure rules, it’s unusual to see them go beyond words and take some meaningful action.”

Colorado’s criminal rules require prosecutors to, among other things, disclose certain evidence to the defense “as soon as practicable,” but no later than 21 days after a defendant’s first court appearance. Notably, the prosecution’s obligation extends to information under the control of others “who have participated in the investigation.”

In June 2021, Solano took the extraordinary step of filing suit against Newman, alleging the sheriff was habitually failing to preserve, process or disclose evidence. M. Jon Kolomitz, a retired district court judge, issued a preliminary injunction, directing Newman to abide by the criminal procedures.

Solano then moved to hold Newman in contempt, arguing the sheriff had violated the injunction. Kolomitz heard evidence that over a five-month window, Newman provided evidence beyond the 21-day deadline in 23% of cases. Newman issued no written instructions to his employees, held no training and “did not understand that there was an overall issue.”

Solano also had to dismiss 13 cases since the preliminary injunction due to late-disclosed evidence, although Newman disputed that explanation. In one instance, a deputy district attorney went to the sheriff’s office to meet with Undersheriff Milan Rapo about a drug case that was lacking test results. During the meeting, Rapo produced a metal briefcase from under his desk. The drugs were inside. Rapo “forgot” to send them for testing.

Upon hearing the case would need to be dismissed, Rapo “had no reaction.”

Kolomitz found Newman in contempt and ordered him to enact written procedures and training to comply with the previous injunction. Shortly afterward, Kolomitz made his injunction permanent.

Newman turned to the Court of Appeals, insisting he was not “unwilling to provide case materials and information,” but rather believed he was not bound by the criminal rules that apply to prosecutors’ disclosure of evidence.

During oral arguments in July, however, the sheriff’s arguments encountered an icy reception from the appellate panel, particularly after his lawyer claimed the criminal rules amounted to a “voluntary procedure.”

“A voluntary procedure? We just cross our fingers and the sheriff, hopefully, will provide information to the prosecutor?” responded Judge Neeti V. Pawar.

Robert L. Barlow, a former prosecutor representing Newman, responded that the rules envision prosecutors will obtain subpoenas on a case-by-case basis for information held by government agencies.

“So, you’re basically saying that a prosecutor who has consistently found that the sheriff’s office is not providing information in, like, 20-25% percent of the time — they have to go to court to get a subpoena that, then, they have to have the very sheriff’s office that is supposed to provide that information serve on the sheriff’s office?” interjected Johnson. “That just sounds ridiculous.”

“In your experience as a district attorney, did you find that the law enforcement officer ignored you 28% of the time?” added Judge Anthony J. Navarro.

No, responded Barlow.

The panel concluded Solano was within his rights to seek an injunction against Newman as a means of satisfying his own prosecutorial obligation to disclose evidence. Johnson noted Solano appeared to have a much different relationship with the Huerfano County Sheriff’s Office than the other law enforcement agencies in the district, which had “little problem” sharing information.

“So long as DA Solano receives the timely flow of information from the sheriff’s office, he can disclose it to the defendant, and thus his duty is satisfied,” she wrote. The prior court orders “do nothing more than what the rule contemplates law enforcement should already be doing in a cooperative fashion with the prosecutor’s office.”

Solano did not respond to an email seeking comment.

Stan Garnett, the former elected district attorney for Boulder County who also represented Newman, said he is pleased the appellate panel did not find Newman was bound by the same criminal rules that apply to prosecutors.

“I don’t think the opinion has a lot of significant immediate practical effects to the work of the county sheriff because he’s complying with discovery deadlines and obligations and will continue to do so,” Garnett said.

The case is Solano v. Newman et al.