DA drops charges against Fishbein | PostIndependent.com

DA drops charges against Fishbein

GLENWOOD SPRINGS – Charges against Mark Fishbein alleging he used racial slurs and threatened a man with a gun were dropped July 15 because of the lack of cooperation by the reputed victim and possibly because of a last-minute witness.

Fishbein, 41, of Glenwood Springs was awaiting trial on charges of felony menacing, unlawfully carrying a concealed weapon, prohibited use of a weapon and ethnic intimidation. The charges were file in connection with an argument Fishbein and his wife, Shelley Fishbein, 37, became involved in with accuser Jesse Shearer.

Shelley Fishbein was also arrested on an accessory charge in connection with the incident but that charge was dropped before being officially filed.

The Fishbeins’ son, Scott, and his friend Aaron Hughes also filed a lawsuit June 13 against the Glenwood Springs Police Department, claiming civil rights violations by several police officers.

The incident between the Fishbeins and Shearer happened on Aug. 15, 2002. According to court documents, it began when the Fishbeins were crossing the Grand Avenue wing street from their business, Hole in the Wall Tattoos and Piercings. The couple claims they were victims of road rage by Shearer, 33, as he drove toward them in his sport utility vehicle.

A heated argument ensued, but soon ended – or so the Fishbeins thought.

As they traveled west through the alley between the Italian Underground and the Colorado West Detoxification Center, Shearer drove toward them and confronted them, said Calvin Lee, Mark Fishbein’s attorney.

According to the story Shearer told police, Mark Fishbein then lifted his shirt, pulled out a gun and threatened him with the gun, so Shearer drove away, court documents said.

The case was set for trial on July 15. But according to court documents, an Aspen postal worker who witnessed the incident later saw a story about it in the newspaper. She came forward on July 9, just six days before Fishbein’s trial was to begin.

The woman corroborated the Fishbeins’ story, saying Mark Fishbein didn’t have a gun, nor was he even wearing a shirt, as Shearer had said, court documents said.

Also, Shelley Fishbein said Shearer grabbed her arm when he confronted the couple in the alley. Deputy district attorney Trisha Lacey, the prosecutor in the case, downplayed that allegation because it was made just two weeks before the trial was to begin.

But the witness verified that part of the story, as well, Lee said.

He said she didn’t come forward earlier because she was fearful of Shearer.

“This is a good example of how it’s dangerous to just assume people are guilty,” Lee said.

Ninth District Attorney Mac Myers said the reason his office dropped the case is because Shearer didn’t show up during the first day of trial on July 15.

“The victim in that case refused to honor his subpoena, didn’t show up, so that’s why we dismissed. No evidence to go forward,” Myers said.

Myers added that Shearer moved out of the state and refused to come back to testify against Fishbein.

Lee said he thinks the new witness had a lot to do with the charges being dropped.

“On July 15, Jesse Shearer didn’t show up. And it’s probably partly because of this new witness,” Lee said.

Myers said the new witness had nothing to do with his office’s decision to drop the case.

“When a witness statement comes in so far after the incident, it’s not as persuasive,” he said.

Myers said that while it’s possible charges could be filed against Shearer if it were found he gave a false report or assaulted Shelley Fishbein, it’s unlikely.

“It would have to be re-examined by police,” he said.

Also, even if charges were filed against Shearer, they would probably be misdemeanor charges and Shearer would not be subject to extradition.

In their lawsuit against Glenwood Springs police, Scott Fishbein, 14, and his friend Aaron Hughes, 15, allege that three officers burst into the Fishbein home, where Scott Fishbein and Hughes were playing video games. The suit goes on to allege that after police were in the house, they pointed guns at the boys’ heads.

The lawsuit claims the police unconstitutionally intruded into their home and falsely arrested Shelley Fishbein. It also claims Glenwood Springs police officers were not adequately trained to respect people’s homes and personal integrity.

No answer has yet been filed by the city of Glenwood Springs.

Contact Greg Masse: 945-8515, ext. 511


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