The Colorado Supreme Court ruled on Monday, by 5-2, that a Ouray County judge wrongly prohibited the prosecution from using late-disclosed evidence in a hearing to determine whether probable cause existed to bring the defendant to trial.

The court’s majority believed the judge’s failure to explain the basis for the sanction doomed his order. However, the two dissenting justices pushed back, noting the prosecutor not only admitted the judge could exclude evidence, but was the one who suggested the judge do so.

In the underlying case, Ashton Michael Whittington is one of three defendants charged in the alleged rape of a teenage girl in May 2023 at the home of former Ouray police Chief Jeff Wood. 

In March, Whittington was scheduled for a preliminary hearing, in which prosecutors must demonstrate probable cause of a crime to proceed to trial. The prosecution admitted it had not shared certain items with the defense by the mid-January 2024 deadline, as the criminal rules require after a defendant’s initial court appearance.

The defense moved for County Court Judge Sean K. Murphy to dismiss the case against Whittington as a sanction for withholding evidence the prosecution had in its possession months beforehand. The defense also alleged 37 other instances in which the Seventh Judicial District Attorney’s Office violated the criminal rules with late-disclosed evidence.

Murphy ultimately found he could not establish a pattern by prosecutors, and instead barred the DA’s office from using certain evidence against Whittington in the preliminary hearing. Before Murphy could complete the hearing, the prosecution appealed to the Supreme Court.

Deputy District Attorney Ryan L. Hess explained Whittington was not alleged to have raped the victim himself, but prohibiting the evidence due to a “technical violation” affected the prosecution’s ability to show Whittington’s involvement.

“The size of files, IT issues with the public defender office, broken files within disclosures, and the mass of the overall case, were all expressed to the county court,” Hess wrote. “Exclusion of evidence is punitive. The court made no finding of the need for a punitive sanction.”

He also contested whether county court judges even have the authority to impose the kind of sanction Murphy did.

The Supreme Court’s majority did not address the authority of county court judges because even if Murphy could issue an order excluding evidence, he did not do it properly.

“In general, the exclusion of evidence is considered a severe sanction, imposed as punitive or deterrent,” wrote Justice Melissa Hart in the Sept. 30 opinion. “For this reason, we require the court to make findings in support of this kind of discovery sanction. The court here made no such findings. To the contrary, the court specifically found no willful misconduct.”

Without that explanation, the Supreme Court found Murphy abused his discretion and overturned his order.

Justice Richard L. Gabriel, writing for himself and Justice William W. Hood III, would have rejected Hess’ claims. He noted the prosecutor told Murphy multiple times the exclusion of evidence was acceptable:

•  “Anything that we’ve disclosed late, I haven’t had the intention of using … in this case for this preliminary hearing”

•  “What I believe this court can do is this court can exclude certain evidence”

•  “There could be sanctions, exclude the evidence. Those type of things I believe the court can do”

In an “effort to persuade the court that it did not have the authority to dismiss the case, the (prosecution) told the court, at least twice, that the court could order the exclusion of certain evidence from the preliminary hearing as a sanction,” Gabriel wrote. The DA’s office “may not now challenge the court’s decision to do precisely what they invited the court to do.”

In looking at the propriety of the sanction itself, Gabriel did not believe it was problematic, particularly because Hess acknowledged he would not use the late-disclosed evidence at the preliminary hearing.

“I am hard-pressed to see how one could characterize such a carefully crafted and thoughtful remedy as manifestly arbitrary, unreasonable, or unfair,” Gabriel added.

The case is People v. Whittington.