Colorado’s second-highest court last week agreed an El Paso County judge was justified in dismissing some of the charges from a criminal case in response to a prosecutor’s repeated failure to timely disclose evidence.

The Fourth Judicial District Attorney’s Office argued that District Court Judge Samuel Evig had not found prosecutor Jessica Kiel committed a “pattern of ongoing and significant” violations when he imposed the sanction. But a three-judge panel for the Court of Appeals observed multiple judges had concluded Kiel failed to disclose evidence across a total of three cases.

“Moreover, to the extent the prosecution suggests that three cases is insufficient for a ‘pattern’ finding, we disagree,” wrote Judge Grant T. Sullivan in the Jan. 30 opinion.

In the case before the appellate court, Brandon Michael Whiteside was arrested in January 2024 and charged with seven counts related to sexual assault on a child.

Six months later, Kiel requested DNA testing. With Whiteside’s trial set for Nov. 5, Kiel told the laboratory she needed the results by Oct. 1 to satisfy the obligation to turn over evidence to the defense no later than 35 days before trial.

Instead, the prosecution provided the test results, the raw data and the resume of the DNA analyst after the deadline had passed. The defense filed a motion to dismiss the case as a sanction, arguing Kiel “has a pattern and practice” of violating the rule requiring disclosure of evidence.

The defense submitted a transcript from another criminal case Kiel worked on, in which District Court Judge Marcus Henson found Kiel neglected to timely disclose a data spreadsheet, multiple videos and related documentation. He observed the parties “might have actually gone to trial without any of this evidence having been turned over to the defense. I can’t imagine a more significant potential prejudice to a defendant.”

Henson also identified another case in which Kiel made improper disclosures.

Evig, who was assigned to Whiteside’s case, took notice of Henson’s findings and agreed to postpone the trial and dismiss two of the charges against Whiteside to deter future misconduct.

“To allow this just to pass with no other sanction (than a postponement) is also inappropriate,” Evig said, “and the court is basing that on the fact that there are two other situations identified in that transcript that had become problematic.”

The district attorney’s office appealed Evig’s decision, maintaining there was no finding that Kiel had committed “willful misconduct” or that there was a pattern of similar behavior.

“The court’s findings acknowledge the prosecutor’s efforts to communicate with the laboratory and facilitate timely receipt of the laboratory results. The court’s findings fail to indicate how the prosecutor’s actions were significantly neglectful,” argued Deputy District Attorney Tanya A. Karimi.

Whiteside’s attorney responded that Evig’s sanction was justified because the prosecution “made no effort” to pursue DNA testing for six months after Whiteside’s arrest, then violated the disclosure deadline.

The Court of Appeals panel rejected the prosecution’s claim that there was no finding Kiel had committed a pattern of violations.

The district attorney’s office “doesn’t dispute, and the record confirms, that the prosecutor violated her discovery obligations in this case and that the other judge (Henson) found that she had committed discovery violations in two other cases,” wrote Sullivan.

He added that the dismissal of two criminal charges was “an appropriately narrow sanction” compared to other options, like excluding the DNA evidence from trial.

The case is People v. Whiteside.