Judge appoints special prosecutor, criticizes DA for dropping case
Steamboat Springs — The decision by Routt County District Attorney Brett Barkey’s office to dismiss a case against a high-ranking Colorado official has been met with harsh criticism from the district’s top judge.
“The court finds that the position of the Office of the District Attorney demonstrates that the decision to dismiss those charges was arbitrary and capricious,” Chief 14th Judicial District Judge Michael O’Hara wrote in his Feb. 27 ruling. “The bases for that decision are not supported by Colorado law.”
O’Hara has ordered a special prosecutor from the 9th Judicial District to prosecute the case.
The case involves Colorado Department of Natural Resources executive director Mike King.
King was issued a citation in September 2013 for unlawfully entering private land in south Routt County to hunt, but in February 2014, the Routt County District Attorney’s Office filed a motion to dismiss the case 30 minutes before the trial was supposed to begin because it could not prove that King knowingly entered private property to hunt.
The District Attorney’s Office said there was some uncertainty as to whether the violation in question was a strict liability offense, which doesn’t require someone to be aware of the law they’re breaking to be held liable.
When the case was dismissed, the owner of the land that King was accused of trespassing on filed a lawsuit against Barkey.
In the lawsuit, landowner Carl Luppens stated he observed King hunting while driving an ATV on the Egeria Park Ranch, and King pushed 50 elk off the land. King had permission to hunt on adjoining land and reportedly did not know he was trespassing.
“When thousands of hunters cover millions of acres of public and private land every fall, they have a duty to be certain where they are and not to carry deadly weapons onto other people’s private land without permission,” Luppens wrote in the lawsuit.
“Hunting on private property without permission is a strict liability offense,” O’Hara wrote. “The only thing required for proof of the commission of the crime is the voluntary act of being present on private land without permission while hunting.”
O’Hara compared the offense to speeding and said the “I don’t know” excuse is inadequate.
“If every person charged with second- or third-degree trespass could escape liability by simply saying ‘I don’t know,’ there would be no concept of trespass,” O’Hara wrote.
Barkey said in an email Thursday that he plans to appeal O’Hara’s decision to appoint a special prosecutor.
“From the order, it appears that the court misunderstands the broad discretion that Colorado law affords to prosecutors to do what we believe is just, including dismissing charges,” Barkey said.
Luppens was pleased with O’Hara’s decision.
“The District Attorney, Barkey, should not assert ‘prosecutorial discretion’ to let someone off in a situation like this,” Luppens said in an email Saturday. “If Barkey wants to justify not prosecuting someone, he must support such a decision with accurate law and honest facts.”
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