Motion denied for new DA in Ogden Case
Judge John Neiley on Wednesday rejected a defense motion to kick the Ninth Judicial District Attorney’s Office off the case of Matthew Ogden, who’s charged with the murder of his month-old daughter, Sarah.
The case originates from an incident in June, when Ogden’s wife awoke in the night to see him violently shaking their daughter. He then took her into the next room, from which the mother heard “horrific” pounding and thumping noises as Ogden continued yelling, she told police.
A fractured skull, hemorrhaging to Sarah’s brain and a lacerated liver were later found as causes of death.
Montrose Public Defender Kori Keil moved for a special prosecutor after one of Ogden’s defense attorneys was rehired by the DA’s office.
Anthony Hershey, who began working for the DA’s office again in January, had represented Ogden in a dependency and neglect case that’s closely tied to the first-degree murder case. Sarah has a surviving twin brother.
Keil argued that Hershey’s knowledge of the dependency and neglect case should disqualify him and the entire DA’s office from trying the case – that the potential for confidential attorney-client information to be shared with the prosecution threatened Ogden’s right to a fair trial.
Judge Neiley said the cases have significant overlap, and he barred Hershey from any involvement or contact with the prosecution in regards to either of Ogden’s cases.
“The cases involve the same parties, the same underlying factual incident, the same investigatory factors (e.g., forensic evidence of the cause of the child’s death, witness statements, coroner’s report, and police reports), the parties have had access to the same files in the dependency and neglect case … and the parties and their respective attorneys have each attended hearings and other proceedings in each case,” Neiley wrote in his order.
The measure in this case for deciding whether the entire DA’s office should be excluded from proceedings, is “whether confidential information from a prior representation … has been and can continue to be adequately screened from others actually prosecuting the case,” Neiley quoted from case law on the issue.
“The defendant argues that the screening procedure is not foolproof and therefore inadequate under the statute and case law. There are methods by which it could be over-ridden,” he wrote.
But the judge found the DA’s procedures and policies adequate to keep Hershey “walled off” from the prosecution. For example, the DA’s IT director testified that he’d restricted access to Ogden’s criminal case files from Hershey’s work computer. Any other DA staffer who accesses those files gets a “dialogue box” reminding them that it’s a conflict case and not to discuss it with Hershey, he told attorneys.
Hershey also testified Friday about his behavior around the security of his laptops, cell phone and physical documents. He told attorneys that he had not disclosed any confidential information from his representation of Ogden.
And Ninth Judicial District Attorney Sherry Caloia testified that her employees were notified multiple times before Hershey was rehired that they could not discuss Ogden’s cases with him.
Judge Neiley reiterated Wednesday that Hershey was to remain walled off from the prosecution’s case, and he left in place a protection order to that effect.
Taking another angle, the defense argued Friday that media coverage of the case prior to Caloia’s run for re-election created a “personal interest” for the DA, another justification that can be used to throw a prosecutor off a case. But the judge also found that argument unconvincing and declined to hear evidence for that argument in the previous hearing.
Ogden will next appear in district court March 25, when he’s expected to enter a plea, or at least set a trial date.
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