Judge: ‘Serious concerns’ about DA’s diversion decision | PostIndependent.com

Judge: ‘Serious concerns’ about DA’s diversion decision

Ryan Hoffman
Ninth Judicial District Attorney Sherry Caloia
Staff Photo |

A 9th Judicial District judge earlier this month raised concerns about the district attorney’s decision to divert from criminal prosecution the teenager who was driving during a fatal incident in Rifle earlier this year.

Prior to ultimately granting the diversion order during the teenager’s appearance in Garfield County Associate Court on June 1, Judge Jonathan Pototsky detailed his concerns regarding 9th Judicial District Attorney Sherry Caloia’s decision to seek diversion, according to a transcript of the court proceedings.

The teen was behind the wheel when Rifle High School senior Kyle Scholla was sitting on the hood of the car in the Rifle Wal-Mart parking lot on April 1. Scholla fell from the car when the driver pulled out of a parking space. He died from his injuries April 9.

In early May, the teen was charged with careless driving resulting in death, a traffic offense. Caloia said prosecutors would not pursue criminal punishment, opting instead for the diversion program, which offers young first-time offenders facing low-level charges a chance to avoid the criminal justice system.

In response to the statement that the diversion program “offers a chance to escape the criminal justice system to young first-time offenders facing low level charges,” Pototsky said, “careless driving causing death is in no way a low-level charge.”

In court earlier this month, Caloia stated the case was different from all other careless driving causing death matters because both the teen and Scholla were “best friends” who were “monkeying around” when the accident happened.

After speaking with Scholla’s family, Caloia told the court the family agreed with the decision to pursue diversion.

However, Pototsky — after clarifying that he refrained from reading news accounts of the incident so as to not be tainted, adding he did not know “anything about the facts” of the case because he was not presented with anything — read from a prepared statement that he said was not “specifically addressed to” the teen, but more general.

He cited two recent cases of careless driving causing death, including that of a Grand Junction man who struck two men assisting a motorist on Interstate 70 near Parachute. Neither of those cases was diverted, and both drivers took “full responsibility for their actions and were sentenced accordingly.”

“Furthermore, both of those cases have fact situations which fell clearly into the category most people would refer to as accidents,” Pototsky said. “Those types of situations should make anyone think ‘that could have been me.’”

In response to the statement that the diversion program “offers a chance to escape the criminal justice system to young first-time offenders facing low level charges,” Pototsky said, “Careless driving causing death is in no way a low-level charge.”

“As a matter of fact,” the judge said, “it is arguably the most serious charge seen in county court.”

Questioning public benefit

Pototsky then pointed to how the incident was described by law enforcement in the days following Scholla’s death and questioned how diversion would serve the public interest, which is one of four criteria district attorneys are supposed to consider, under state law, when determining whether or not a person is appropriate for diversion.

Shortly after Scholla, who was described by those who knew him as a selfless individual, died from his injuries, law enforcement described the accident as “car surfing.”

Days later, Rifle Police Chief John Dyer clarified that evidence illustrated a series of events that was more “spontaneous goofing around” than “a big thrill-seeking type of thing.”

Caloia, who issued a statement concerning the dangers of car surfing after Scholla’s death, said at the time she had relied on information from an investigator and had not seen the incident report.

In stating the intent to divert the driver from prosecution about one month later, Caloia said the teen will be required to travel to area high schools and share his experience with the hope of preventing others from making similar mistakes.

In court for the diversion hearing, Pototsky questioned what the teen would be discouraging others from doing if the incident was not car surfing.

The judge then referenced the two previous careless driving causing death cases, starting with a 2015 incident in which a 17-year-old driver fell asleep behind the wheel.

“Drowsy driving is certainly much more prevalent than horseplaying with an automobile while your friend is perched upon the hood of your car yet he wasn’t offered diversion and the chance to discourage other teens from driving while tired,” Pototsky said.

While stating his understanding that each case needs to stand on its own, the judge stated there needs to some consistency in charging and prosecuting cases.

“Justice is supposed to be even-handed,” he said.

In finishing his remarks, Pototsky stated: “I cannot stop this case from being diverted from prosecution, but I don’t have to like it or to let people think that I have anything to do with it, because I do not.”

Caloia asked to respond but the judge denied her request and granted the diversion order and wished the teen luck.

Philosophical differences

Earlier this week, Caloia stated her disappointment over Pototsky’s remarks, “because as the judge said right off the bat he doesn’t know the facts, and the facts make each individual case different.”

Specifically, the facts in the two cases the judge referenced were very different, she said.

“In those cases you had victims who were not participants in the carelessness, and in this case you had two kids, both of whom were careless, and so to me it makes it very different.”

Caloia repeated her point made in court that the decision to seek diversion was supported by the family, and she added the Rifle Police Department also agreed on the approach.

The matter, Caloia said, was an example of distinct philosophical differences between the judge, who was attempting to find commonality in cases with some similar traits, and herself.

“As I’ve said many times, we don’t just need to make criminals out of people for their very stupid mistakes,” Caloia said. “[It is] unfortunate and I don’t mean to downplay it. This was a very, very sad incident for everyone involved.”

This is not the first time Caloia, who is seeking re-election this fall, has come across philosophical differences.

Earlier this year, the Post Independent reported on a feud between the district attorney and Garfield County sheriff that came to light after an interagency conversation about how much, and whether, the district attorney’s office should pay for the jail phone records of Arturo Navarrete-Portillo.

Sheriff Lou Vallario told the PI at the time that Caloia makes it too difficult to obtain warrants and that the district attorney dismisses too many charges.

Caloia responded by telling the PI that she exercises caution when signing off on warrants — judges in the 9th Judicial District have law enforcement get their warrants approved by the DA before they will sign off on them — to ensure there is enough evidence when a matter goes to court.

Regarding the diversion hearing earlier this month, Caloia stood by the decision to seek diversion, and she reiterated her disappointment regarding Pototsky’s remarks.

“I’m disappointed in the way [the judge] chose to handle it,” she said. “It’s very obvious he had made his mind up well before the hearing because he read from a script. … I’m very much into each individual case, and every defendant is different, and the facts of the cases are always different.”

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