Montrose - Daily Press

Katharhynn Heidelberg

Daily Press News Editor

TELLURIDE — The election is over, but debate about publicity surrounding former state representative candidate Brian Ahern’s criminal trial is alive and well.

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In a motion filed Tuesday, Ahern, through his attorney Bob Korn, said June charges of menacing should be dismissed outright because of prosecutorial misconduct and double jeopardy.

Ahern was arrested by the Mountain Village Police in June, after a domestic disturbance involving his fianc/e. A mistrial was declared Oct. 18 and on Oct. 24, the district attorney’s office moved to re-set the trial.

“They screwed up,” Ahern said Thursday. “They broke the law.”

He also called for the resignation of Mountain Village Police Chief Dale Wood and said a civil suit was possible. His motion additionally asks the courts to order a special prosecutor’s investigation into alleged media leaks from the Mountain Village Police.

Ahern and Korn say double jeopardy applies because of existing case law, which states that if a criminal trial is terminated before the verdict, a second trial is barred unless the defendant consented to the termination “or it was manifest necessity.” Korn argued in the motion that neither was the case.

He attacked prosecuting attorney Lou Mehlig’s reasons for requesting a mistrial, which had included Korn’s opening statements during trial. In that statement, Korn described menacing as acting with intent. Under statute, menacing means that a person acted “knowingly.”

In his motion, Korn called the distinction an “innocent paraphrase” and said there had been no ulterior motive. He also said he’d objected to the prosecution’s motion for a mistrial.

“As quickly as the DA rejected the defendant’s request that he withdraw his motion for a mistrial...he came up with a second reason for a mistrial...defense counsel had suddenly become the people’s necessary witness and was disqualified.”

Korn had spoken with Mountain Village Police June 29, to negotiate Ahern’s surrender to police. He called the insistence that he was a prosecution witness an “eleventh hour ad hoc tactic, an attempt to disqualify defense counsel.”

Korn alleged in his motion the real reason Mehlig wanted a mistrial was because he feared the impeachment of police witnesses for prosecutorial misconduct.

Ahern had intended to question the credibility of law enforcement “for possessing ulterior motives in pursuing a non-complainant crime, manifested by showing the unlawful public dissemination of (Ahern’s) criminal justice records to the defendant’s political adversaries,” the motion stated.

It alleged police admitted wrongful dissemination of records, and Korn attached as exhibits the copies of several newspaper articles about the case, including the Daily Press’ Oct. 20 report.

Wood maintained his department had done no wrong and also said that he’d been doing his job, so he had no intention of stepping down. “State statute requires, under most circumstance, that we release records to the public. We can’t hide what we do. These records fit under that category.”

Exhibits attached to the motion show a request for records was made by Donna Rose, wife of Ray Rose, who defeated Ahern in his bid to represent the 58th District at the state house. Rose brought up Ahern’s arrest during the Club 20 debates in September.

Wood said his agency had released only those records over which it was custodian. “The records we release are generated by us. We do not release records we obtain from other sources. We make the individual seek out those from the agency of record,” he said.

Rose said he and his wife purchased the records lawfully. “To even insinuate there’s wrongdoing in something like that is absolutely ludicrous,” he said. “I think he (Ahern) is simply looking for any straw to perhaps get this case dismissed.”

Rose also said it had been Korn’s responsibility to ask the court to seal the records if he hadn’t wanted them released.

Ahern’s allegations of prosecutorial misconduct included argument that Mehlig’s demand for a mistrial was premature and did not prove bad faith on the part of the defense. The motion alleges the police made extra-judicial statements to the media in defiance of a June 19 memo issued by Deputy DA Keri Yoder.

Wood, however, said a district attorney cannot dictate the policies of other agencies. He also denied Donna Rose was given records that weren’t public. Ray Rose said the records they obtained included the police officer’s report and pictures taken at the scene, and of Ahern at the time of his arrest.

Korn also alleged prosecutorial misconduct because DA Tom Raynes spoke with Ahern about his case on Oct. 24, specifically concerning the double jeopardy assertion. Within five days, Korn said, Mehlig filed a motion to reset the case for trial, in which he made specific argument pertaining to Ahern’s assertion of double jeopardy.

Additionally, he said the motion to simply reset the case was improper. Since it ended in a mistrial, it was dismissed without prejudice, meaning the prosecution was required to refile it, Korn wrote.

Raynes said he hadn’t seen Korn’s motion for dismissal and did not anticipate reviewing it before next week, as he is presently in Denver. He said he would not comment on the motion, but that his position would be expressed in his response to it. “It’s a pending case,” he said.

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