DA disputes motion to remove her from case | PostIndependent.com

DA disputes motion to remove her from case

John Colson

GLENWOOD SPRINGS — Ninth Judicial District Attorney Sherry Caloia, accused of having a bias against defendants suspected of theft that prevents her from giving those defendants a fair trial, has replied that the accusation is baseless and not enough to warrant her disqualification from a case.

The case in question is against Idalia Muñoz-Morales, 38, who is accused of defrauding the Garfield County Department of Human Services (DHS) to the tune of more than $56,000 worth of food stamps (known as the Supplemental Nutritional Assistance Program, or SNAP) and Medicaid benefits over a six-year period.

According to authorities, Muñoz-Morales allegedly lied to caseworkers when she signed up for the benefits in 2006, saying her husband had been deported and was not living with her or contributing to her family’s upkeep.

When confronted by an investigator for the county’s DHS, Muñoz-Morales allegedly admitted she had been lying for years about her husband, Luis A. Martinez, whom she said had been living with her and had worked at several jobs during the past several years.

A four-day trial on the charges against Muñoz-Morales is scheduled for early March 2014.

But Deputy Public Defender Tina Fang filed a motion on Dec. 13 to have Caloia disqualified from the case because, according to Fang, Caloia has shown a bias against those accused of theft.

That bias, according to Fang’s motion, stems from the fact that Caloia is fending off accusations of theft and “professional negligence” concerning the alleged embezzlement of town funds by a former Marble town clerk, the late Karen Mulhall.

Caloia at one point was Marble’s town attorney, and for a time employed Mulhall in Caloia’s law office, but the DA denies that she was hired as Mulhall’s supervisor or that she had any obligation to oversee Mulhall’s work on the town’s finances. Marble has sued Caloia in its drive to recover several hundred thousand dollars in stolen funds.

In her response to Fang’s motion, filed on Dec. 18, Caloia argues that the only justification for removing a DA from a case is when that DA is proven to have “a personal or financial interest in the case,” or when a defense attorney or other party “finds special circumstances exist that would make it unlikely that the defendant would receive a fair trial.”

Fang, in support of the motion to disqualify Caloia, has included an affidavit from local defense attorney Garth McCarty, who stated that a client of his, Diane Graf, was pressured into accepting a plea bargain she did not favor by Caloia’s allegedly angry insistence.

Caloia’s actions, he charged, stemmed from “a personal bias” against those accused of theft.

In her response, Caloia cited numerous instances of case law to back up her argument that disqualification of a DA from prosecuting a case “is a drastic remedy that should only occur in narrow circumstances,” according to the Colorado Supreme Court.

To prove a personal interest amounting to bias, according to the DA’s motion, documentation must show “that the district attorney will either reap some benefit or suffer some disadvantage; mere partiality will not suffice.”

Fang’s motion, Caloia argued, “is illogical and counter intuitive” because there is no evidence that she has “either a personal or financial interest in the prosecution” or that she cannot preside over a fair trial.

Caloia’s motion also dismisses the relevance of McCarty’s affidavit and that of another attorney as being “wholly unrelated to this case,” and accuses Fang of using her motion to disqualify as a wedge to force Caloia into negotiating a plea bargain.

“Theft, embezzlement, welfare fraud and others are serious crimes which affect all of us and society,” the DA concluded, noting that the state Legislature has decreed that alleged thefts of $2,000 or more are to be prosecuted as felonies.

She accused Fang of trying to get the court to “provide a method to facilitate the lenient treatment of offenders” by asserting that a prosecutor who “targets these crimes or treats offenders harshly must have a devious personal or financial interest in doing so and therefore should not be allowed to prosecute them.”

Caloia, in her motion, asks the court to rule against Fang’s motion, and to do so in advance of a Jan. 8 hearing so the case can move forward toward the March trial.

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