Sheriff calls Caloia incompetent; she says he seeks control of DA office
A simmering conflict between the Garfield County sheriff and Ninth Judicial District attorney came to a boil last week over a jail records request in a first-degree murder case.
What started as an interagency conversation about how much (and whether) the DA’s office should pay for the jail phone records of Arturo Navarrete-Portillo, accused of killing his wife in Carbondale with a machete, became a platform for Sheriff Lou Vallario to unleash an attack on District Attorney Sherry Caloia.
Telling Caloia in an email to “stop acting like a 3-year-old child,” Vallario assailed her competence and relationship with law enforcement:
“Until you became the DA and went out of your way to create animosity with every law enforcement agency in the judicial district, I was always under the impression that law enforcement and prosecution were on the same side of the judicial system. You have destroyed that understanding by demonstrating your ignorance of the judicial system and your incompetence as DA,” Vallario wrote in an email whose recipients included staffers of both elected officials.
Caloia shared the email chain with the Post Independent, saying that it “illustrates the politics of my office. Sheriff Vallario wants control over the DA’s office. He wants to dictate who gets charged and what charges are filed. He wants control over sentencing. I am independent and have shown that I am not going to do that.”
Caloia, a first-term Democrat, is being challenged for re-election in November by Republican Jefferson Cheney, a former Ninth District prosecutor whom Vallario, who is active in county GOP politics, supports.
The flare-up came after jail staff and the DA staff discussed by email the Navarrete-Portillo phone records and whether the sheriff’s office would charge the DA’s office for collecting them. Caloia entered the email chain to say the records are evidence to which her prosecutors are entitled and they would not pay for them.
Navarrete-Portillo has been in jail for 408 days as of April 15, and the prosecution believes he might have talked about his case at the jail in phone conversations, which could be important evidence in his upcoming trial, scheduled to begin May 31.
Vallario later told the Post Independent that talk about charging the DA a fee was a mistake. The jail has never and will never charge the DA’s office for discovery, he said.
However, the sheriff has been pressing records requestors to narrow their requests or pay fees because the jail has increasingly received blanket requests for large numbers of records. These are requests from other law enforcement agencies, from the sheriff’s own investigators – even individuals such as an inmate’s wife trying to find out who her husband’s girlfriend is, he said.
Already this year, the sheriff’s office has received 437 open records requests, according to information provided to the Post Independent under the Colorado Open Records Act. Only a quarter of the way into the year, that’s on track to double the 815 requests received in 2015. Last year the sheriff’s office received a total of $676.75 in fees for those requests. In the last five years, the most the sheriff’s office has received for total open records requests was $998.75 in 2013.
The jail personnel in last week’s email chain didn’t understand that discovery is different from a records request from the public, Vallario said – though he added “there’s nothing in the law … that says I can’t charge the DA for that.”
Vallario’s email does imply that the DA’s request was a “fishing expedition,” and because prosecutors didn’t know what was in the recordings, they were not yet evidence.
Eleventh Judicial District Attorney Thom LeDoux, giving the Post Independent an outside perspective, said his office never pays for records such as jail phone recordings, which he said can be a common request in serious cases.
But rather than simply coming to these conclusions, the email conversation exploded.
Caloia wrote that she might take the matter up with the county commissioners, who allocate both the sheriff’s and DA’s budgets.
HEART OF DISPUTE
The sheriff followed up with the email challenging her competence.
Vallario said Caloia “conveniently” left him out of the email chain and instead harassed his jail staff.
“We have NEVER charged for discovery, nor will we,” Vallario wrote.
Part of the argument is over who will shoulder the workload of wading through the recordings. The sheriff doesn’t want the DA to hand over responsibility for reviewing recordings to his jail staff, who are not investigators. Caloia doesn’t understand why her staff should have to come to the jail and review the recordings before the jail hands them over.
In fact, the jail staff doesn’t have to review the recordings unless they include video footage (for security reasons), and in this case they didn’t.
The sheriff and DA have never had a face-to-face meeting about whether the DA should pay for records, and never had a phone conversation about it, Caloia said in an interview.
Caloia said the email exchange was the first and only communication the two have had on the matter.
“Quite frankly,” Vallario wrote, “I’m not sure why any of this information is needed by you. Are you actually considering prosecuting a murder case, or should I wait to read about the plea deal in the paper like every other murder case you’ve been involved with?”
At this point, the squabble over phone records became less important than the pair’s major philosophical differences on how to handle prosecution, said Caloia.
Both of these agency heads see the other as trying to butt into their territory.
A deputy or police officer needs “probable cause” to make an arrest, but the prosecution’s standard to gain a conviction is “beyond a reasonable doubt,” said Caloia.
Caloia said the sheriff and many police chiefs want her to prosecute cases on probable cause, and Vallario said the DA has been reluctant to approve arrest warrants because she doesn’t think the cases can be proved beyond a reasonable doubt.
Vallario said that Caloia dismisses far too many of the charges that officers file and that she’s made it too difficult to get arrest warrants.
For the last two years, Vallario has been tracking case dispositions by quarter, and according to his figures, the percentage of charges dismissed over that time has been as high as 67 percent.
“An average of over 60 percent of all the charges we’re filing are being dismissed,” said the sheriff.
“We have never seen such a difficult relationship between law enforcement and a district attorney’s office,” said Vallario, who felt he could speak for many of the area’s police chiefs. “It’s gotten to the point that our guys on the street are saying, ‘What’s the point in arresting this person if the charges are going to get dismissed?’”
Word about the judicial district’s leniency is even getting out to the criminals, he said. People facing drug charges are more reluctant to be a confidential informant because they think their charges are going to be dismissed anyway, he said.
In the Ninth Judicial District, judges have law enforcement get their warrants approved by the DA before they will sign off on them. Caloia is making it harder to get an arrest warrant, because she wants a higher level of evidence, said the sheriff.
It’s pushing law enforcement toward making warrantless arrests, which is legal, said Vallario, but adds another step in court to prove that there was probable cause for the arrest.
The district attorney said she often asks the deputies and police to do more investigating so they don’t end up with a case her office can’t prosecute.
CAREFUL WITH WARRANTS
Caloia points to her own statistics – that the number of dismissed felony cases is about half of what it was during the two years prior to her election.
“And that is largely due to us being careful on the warrant end, rather than not having enough evidence when we get to court,” she said.
The number of dismissed misdemeanor cases has gone up, she said. That happens for a variety of reasons – whether the victim in the case doesn’t want to cooperate or the arresting charge simply isn’t valid, she said.
The officers do a good job and try their best, said Caloia. But they must make split-second decisions in the field, and just because an officer files some charges doesn’t mean it’s a good case, she said.
Caloia said she comes from an old-school generation when cops who busted a kid drinking in the park would take him home rather than arrest him. Being more lenient on low-level crimes was a big part of her platform and probably why she won in 2012, she said.
Vallario told the PI on Wednesday that his investigators are working a “particularly heinous” sexual assault case from Tuesday night. His investigators say the DA is making them jump through hoops to get a warrant in the case – all in retaliation for the email fight, they believe.
Caloia on Thursday called his accusation ridiculous, saying that she was not directly involved in this specific case. “And the deputy district attorney working it doesn’t even know about my conflict with the sheriff.”
Eventually, Caloia’s office did get the Navarette-Portillo records after sending a deputy district attorney to review the recordings at the jail.
And the fight over jail phone and video records could soon become moot. Vallario said other law enforcement agencies and his own investigators already have access to a web-based platform to access those records. He plans to open that up to the DA’s office as well.