Petition for Writ of Certiorari — Colorado v. Auld

(|

GRo Ks |

No.

Gupreme Court, U.S.

FILED

HOY 21 1981

| aguea OF THE CLERK

In The

Supreme Court of the United States

October Term, 1991

r

THE STATE OF COLORADO,

Petitioner,

VS.

ROBIN AULD,

Respondent.

¢

Petition For Writ Of Certiorari

On Certiorari To The Colorado Court Of Appeals

Court Of Appeals No. 89CA0995

e

PETITION FOR WRIT OF CERTIORARI

o

MILTON K. BLAKEY”

District Attorney

KeitH Cross

Assistant District Attorney

Special Prosecutors

Attorneys for Petitioner

109 8th Street, Suite 308

Glenwood Springs, Colorado

81601

Telephone: (303) 945-8635

*Counsel of Record

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

Ji

QUESTIONS PRESENTED FOR REVIEW

1. Whether the court violated the doctrine of sep-

aration of powers by dismissing the prosecution of an

attorney allegedly engaged in criminal activity on the

basis that the government filed a fictitious court case as a

part of its undercover investigation, absent any finding

that the attorney’s constitutional rights were violated?

2. Whether the United States Constitution required

dismissal of criminal charges on the grounds that the

government's filing of a fictitious court case as a part of

its undercover investigation constituted outrageous gov-

ernmental misconduct?

ii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW........... i

CIP ee EI winch res evcwscentesetesiehanwene. 1

pot 8g | Ren ae eee Ae ane Perrine: 2

CONSTITUTIONAL PROVISIONS.................. 3

FACTUAL BACKGROUND ........................ 3

STATE COURT PROCEEDINGS.................... 5

REASONS FOR GRANTING THE WRIT ........... 6

ROR AIOE icc vena sce Sead bee aE eae me eee aera 10

PE Pee PR ican c sk cectienideensnnr eee App. 1

PS 8 Sree re rere. Ori ete: App. 9

APUGRINK C. z..a ee App. 11

iil

TABLE OF AUTHORITIES

Page

Cases

Hampton v. United States, 425 U.S. 484, 48 L.Ed.2d

Ce | 6

Nigrone v. Murtagh, 46 App. Div. 343, 362 N.Y.S. 2d

8 OS es a 7

People v. Archer, 68 App. Div. 2d 441, 417 N.Y.S. 2d

ed cera shut cre baks 400s bho eo 7

People v. Auld, 815 P. 2d 956 (Colo. App. 1991).. 2, 10, 11

People v. Auld, 788 P. 2d 1275 (Colo. 1990) ........... 5

People v. Reichman, Supreme Court, State of Colo-

GE A a a a 6

Rochin v. California, 342 U.S. 165, 96 L.Ed. 183, 72

ne mee ee Mek OO Bove (I9GZ) ..... 2.6.0. .5000- 6

United States v. Dyman, 739 F.2d 762 (2d Cir. 1984)..... 7

United States v. Gamble, 737 F.2d 853 (10th Cir.

SL Se ea ee 7

United States v. Garrett, 716 F.2d 257 (5th Cir. 1983) ..... 7

United States v. Haimowitz, 725 F.2d 1561 (11th Cir.

Peat CSS A 7

United States v. Hasting, 461 U.S. 499, 76 L.Ed.2d

re 6

United States v. Janotti, 673 F.2d 578 (3rd Cir. 1982),

cert. denied, 457 U.S. 1108, 102 S.Ct. 2908, 73

i Ne sn sy vives cc cecuscsterereseess 7

United States v. Leroux, 738 F.2d 943 (8th Cir. 1984)..... 7

United States v. Martino, 825 F.2d 754 (3rd Cir.

Re ce aeceduuye 7, 8, 9, 10

iv

TABLE OF AUTHORITIES - Continued

Page

United States v. Murphy, 768 F.2d 1518 (7th Cir.

1985), cert. denied, 475 U.S. 1012, 106 S.Ct. 1188,

er EI ices aes ow bkdlc wie Kas nce 0 0 7,9

United States v. Pagan, 721 F.2d 24 (2d Cir. 1983)..... 7

United States v. Payner, 447 U.S. 727, 65 L.Ed.2d

a a | re er era 6, 10

United Stetes v. Puett, 735 F.2d 1331 (i1th Cir. 1984) ..... 7

United States v. Russell, 411 U.S. 423, 935 S.Ct.

1637, 36 1.60.20 366 (1973)... 2. ccc eeeee 2, 6, 8, 10

United States v. Thoma, 726 F.2d 1191 (7th Cir. 1984) ..... 7

United States v. Weisz, 718 F.2d 413 (D.C. Cir. 1983) ..... 7

STATUTES

Colorado Stat., Sections 18-4-410 and 18-12-102

SNC Eaten uae rT ree cc lake wae Keaee eee re l

ET ae ED cab RANE era Parag a CS, Aa Se 2

RULES

MN We INS ok eek hnwiedas he ORV Sh kd 3

OTHER AUTHORITIES

Article III of the United States Constitution.......... 3

Amendment V of the United States Constitution ..... 3

Amendment XIV, Section 1, of the United States

aa pg RES Eee LIEN PANE So Posen, oft E> i Oecd 3

+

In The

Supreme Court of the United Siates

October Term, 1991

o

THE STATE OF COLORADO,

Petitioner,

VS.

ROBIN AULD,

Respondent.

4

Petition For Writ Of Certiorari

On Certiorari To The Colorado Court Of Appeals

Court Of Appeals No. 89CA0995

o

PETITION FOR WRIT OF CERTIORARI

S

OPINION BELOW

The Colorado Court of Appeals affirmed the state

district court’s pre-trial dismissal of a criminal prosecu-

tion against the respondent, attorney Robin Auld, on

charges of Theft Receiving and Possession of a Dangerous

Weapon (Colorado Stat., Sections 18-4-410 and 18-12-102

1986). The Colorado Court of Appeals found that the

government's filing of a fictitious court case in order to

place an undercover officer in the position of the defen-

dant’s “client” impermissibly involved the judiciary as an

unwitting accomplice to the government’s undercover

operations and constituted outrageous governmental

misconduct violative of the Due Process Clause. This

opinion is published as People v. Auld, 815 P. 2d 956 (Colo.

App. 1991), and is attached as Appendix A.

Petitioner then sought certiorari from the Colorado

Supreme Court. Certiorari was denied on August 26,

1991, although Chief Justice Rovira stated that he would

grant certiorari as to the court’s finding of outrageous

governmental misconduct and the issue of the doctrine of

separation of powers. (See Appendix B.) The Colorado

Court of Appeals then issued its mandate on September

12, 1991, affirming the lower court’s judgment of dis-

missal. (See Appendix C.)

JURISDICTION

The Colorado Court of Appeals found that the gov-

ernment’s conduct in filing the fictitious court case dur-

ing the investigatory phase of the prosecution violated

fundamental fairness and was shocking to the universal

sense of justice required by the Due Process Clause, cit-

ing, as authority, United States v. Russell, 411 U.S. 423

(1973). The Colorado Court of Appeals did not rely upon

any independent state ground for its decision, finding,

instead, that the doctrine of the separation of powers had

been violated when the government impermissibly

involved the court as an unwitting accomplice to its

investigation. The highest state court, the Colorado

Supreme Court, denied the government's request for cer-

tiorari on August 26, 1991. The certiorari jurisdiction of

this Court is, therefore, invoked pursuant to 28 U.S.C.,

Section 1257.

Additionally, the Colorado Court of Appeals has

decided a federal question in a way that conflicts with the

decision of another state court of last resort, and its

decision involves an important question of federal law

which has not been, but should be, decided by this Court.

Thus, certiorari jurisdiction is also invoked pursuant to

Sup. Ct. R. 10.1 (b) and (c).

" ¢

CONSTITUTIONAL PROVISIONS

Article III of the United States Constitution provides

in pertinent part: “The judicial power of the United States

shall be vested in one supreme Court, and in such infe-

rior Courts as the Congress may from time to time ordain

and establish.”

Amendment V of the United States Constitution pro-

vides in pertinent part: “No person shall. . . be deprived

of life, liberty, or property, without due process of

””

mw...

Amendment XIV, Section 1, of the United States Con-

stitution provides in pertinent part: “No state shall

.. . deprive any person of iife, liberty, or property, with-

out due process of law... . ”

FACTUAL BACKGROUND

The respondent, an attorney, was arrested on October

29, 1988, in Durango, Colorado, for p ssession of a fully

automatic UZI machine gun which had been given to him

in lieu of a fee by an undercover officer posing as his

client. The investigation of the respondent was part of a

task force project called “LEADS” (Law Enforcement

Against Drugs) funded by a federal grant to combat the

narcotics trade in southwest Colorado. Based upon infor-

mation that the respondent was either involved in the

drug trade or would accept drugs in lieu of legal fees, the

task force, with the advice of the district attorney for the

Sixth Judicial District, decided to target the respondent.

In order to facilitate the plan, an undercover officer

who had been making drug purchases for the task force

was arrested and placed in jail on a misdemeanor charge

of possession of marijuana. A fictitious affidavit and

other papers were filed with the county court with the

knowledge and consent of the district attorney. The

undercover officer subsequently sought the services of

the respondent.

The undercover officer offered to pay the respondent

for his legal services by giving him drugs. The respon-

dent declined that offer but indicated that he would

accept a gun at a “blackmarket price” in lieu of his fee.

After a series of negotiations, the respondent agreed to

accept a reportedly stolen, fully automatic UZI machine

gun as payment for his fee. This transaction, which

occurred in the respondent’s office, was recorded by the

undercover officer and monitored by a surveillance offi-

cer. Shortly after receiving the weapon, the respondent

was arrested.

The district attorney removed himself from the case

prior to the filing of any charges against the respondent.

A special prosecutor, appointed by the court, decided to

file felony charges of Theft Receiving and Possession of

an Illegal Weapon against the respondent.

¢

STATE COURT PROCEEDINGS

In pre-trial motions, the respondent asked that the

case against him be dismissed. The trial court granted the

motion to dismiss based upon the government's filing of

fictitious documents with the county court, as well as the

false statements made in open court by the undercover

officer prior to the respondent’s arrest. After a lengthy

hearing, the trial court concluded that the government

had impugned the integrity of the courts by covertly

involving a court in its undercover operation.

The Colorado Court of Appeals concurred with the

trial court, rejecting the government’s argument that the

trial court’s pre-trial dismissal of the charges violated the

doctrine of separation of powers. The Colorado Court of

Appeals stated that it was the government that had vio-

lated the separation of powers doctrine by involving a

court in its investigation. Neither the trial court, in its

written opinion dismissing the case, nor the Colorado

Court of Appeals, in its published opinion, articulated

any prejudice to the defendant's rights created by the

government’s actions.

In separate actions, both the respondent and the dis-

trict attorney for the Sixth Judicial District were disci-

plined by the Colorado Supreme Court. The respondent

received a six-month suspension, People v. Auld, 788 FP. 2d

1275 (Colo. 1990), and the district attorney received a

public censure in a decision announced on October 21,

1991, People v. Reichman, Supreme Court, State of Colo-

rado, No. 90SA485. The special prosecutor took no part in

these independent actions. The special prosecutor has

filed this request for certiorari review as a result of the

Colorado Court of Appeals decision affirming the trial

court’s dismissal of the criminal case against the respon-

dent.

REASONS FOR GRANTING THE WRIT

The state court below has set a significant precedent

by construing the language! of United States v. Russell, 411

U.S. 423 (1978) to permit the dismissal of a criminal case

without finding any violation of the defendant’s constitu-

tional rights.

This Court has never sanctioned the dismissal of a

case solely on the grounds that the government’s conduct

was so outrageous as to constitute a violation of due

process. The majority of the federal circuit courts have

'“ |. . we may some day be presented with a situation in

which the conduct of law enforcement agents is so

outrageous that due process principles would abso-

lutely bar the government from invoking judicial

processes to obtain a conviction, cf. Rochin v. Califor-

nia, 342 U.S. 165 (1952)... ” United States v. Russell,

411 U.S. at 431-32.

2 See United States v. Russell, 411 U.S. 423 (1978); Hampton

v. United States, 425 U.S. 484 (1976); United States v. Payner, 447

U.S. 727 (1980); United States v. Hasting, 461 U.S. 499 (1983).

similarly held that, in the absence of a violation of the

defendant’s fundamental rights, the government’s mis-

conduct in the investigatory stage of a case cannot be the

sole grounds for dismissal. In at least two instances, a

state court examining the issue of the government's pros-

ecution of fictitious cases in order to plant an undercover

officer within the criminal justice system has similarly

held that dismissal was not warranted.4

This Court has never addressed the issue of the gov-

ernment’s use of an undercover agent within the court

system itself. Such a procedure invariably involves some

level of deceit, as well as the potential violation of one or

more of the tenets of the Code of Professional Respon-

sibility.

The investigation of an attorney who accepts stolen

or illegal property in lieu of legal fees will almost invaria-

bly require the use of an undercover agent. It is unlikely

3 See United States v. Dyman, 739 F. 2d 762 (2d Cir. 1984);

United States v. Pagan, 721 F. 2d 24 (2d Cir. 1983); United States

v. Janotti, 673 F. 2d 578 (3rd Cir.1982), cert. denied, 457 U.S.

1108, 102 S. Ct. 2908, 73 L. Ed. 2d 1317 (1982); United States v.

Martino, 825 F. 2d 754 (3rd Cir. 1987); United States v. Weisz, 718

F. 2d 413 (D.C. Cir. 1983); United States v. Garrett, 716 F. 2d 257

(5th Cir. 1983); United States v. Thoma, 726 F. 2d 1191 (7th Cir.

1984); United States v. Murphy, 768 F. 2d 1518 (7th Cir. 1985),

cert. denied, 106 S. Ct. 1188, 89 L. Ed. 2d 304 (1986); United

States v. Leroux, 738 F. 2d 943 (8th Cir. 1984); United States v

Gamble, 737 F. 2d 853 (10th Cir. 1984); U.S. v. Puett, 735 F. 2d

1331 (11th Cir. 1984); United States v. Haimowitz, 725 F. 2d 1561

(11th Cir. 1984).

4 See Nigrone v. Murtagh, 46 App. Div. 343, 362 N.Y.S. 2d

513, (1974); People v. Archer, 68 App. Div. 2d 441, 417 N.Y.S. 2d

507 (1979).

that the uncorroborated testimony of a former client will

ever be sufficient to sustain the government’s burden of

proof. The undercover agent’s legitimacy as a criminal

defendant cannot be established without the filing of a

fictitious case with the court. Although no one is likely to

find such a procedure very palatable, it is constitutionally

the responsibility of the government to determine if it is

necessary.

There are important policy considerations at stake in

this case. When a criminal defense lawyer accepts stolen

property or contraband from a client, that lawyer pro-

motes crime. The criminal justice system should not serve

to engender new criminal activity. Nor are mere disciplin-

ary procedures sufficient to address the problem. The

government should be permitted to bring to trial any

individual suspected of crimes against the State, regard-

less of the status or position of that person.

If the Colorado Court of Appeals is permitted to

dismiss a case based upon an erroneous application of the

Due Process language of Russell, other courts may do

likewise. The Court of Appeals disregarded two signifi-

cant federal precedents in this area. In United States v.

Martino, 825 F. 2d 754 (3rd Cir. 1987), the Court of

Appeals for the Third Circuit reversed a District Court’s

decision to dismiss an indictment based upon the govern-

ment’s issuance of a “sham” grand jury subpoena as a

part of an undercover investigation of an attorney. No

attempt had been made in Martino to inform the supervis-

ing judge of the government's clandestine use of a ficti-

tious subpoena. Nevertheless, the Third Circuit held that

none of the defendant’s constitutional rights had been

compromised.

In United States v. Murphy, 768 F. 2d 1518 (7th Cir.

1985), cert. denied, 475 U.S. 1012 (1986), the Circuit Court

of Appeals for the Seventh Circuit addressed the issue of

alleged governmental misconduct in a federal investiga-

tion of corrupt judges in the Chicago courts. The investi-

gation, labelled “Operation Greystone,” utilized

undercover agents posing as criminal defendants in ficti-

tious cases in order to investigate allegations of bribery

against certain judges, bail bondsmen, and attorneys. In

addition to the filing of fictitious cases, perjured testi-

mony was given by law enforcement officers in fur-

therance of the undercover operation. The Seventh

Circuit Court of Appeals did not find the government’s

conduct to be violative of the Due Process Clause.

The Colorado Court of Appeals distinguished the

Murphy decision by stating that the “Greylord” investiga-

tion involved pervasive corruption within the Chicago

court system and that the supervising judge had been

notified of the investigation. The assessment of the

degree of harm created by a suspect’s activity belongs not

to the court but to the government. If the government

determines that the illegal activity of a single individual

warrants investigation, it should be able to institute an

undercover operation without fear of a reassessment of

that need at some future point in time by the court.

Moreover, the proposal that the government be

required to notify a supervising judge of the undercover

operation merely begs the question of the government's

recruiting the judiciary as its investigatory arm. As the

Third Circuit Court of Appeals pointed out in Martino,

the notification of the court transforms the appearance of

10

the court’s participation in a governmental undercover

operation into actuality. Martino, 825 F. 2d at 761.

The government does not suggest in this petition, nor

did it suggest to the court below, that the door opened by

the language of United States v. Russell, 411 U.S. 432, 93 S.

Ct. 1637, 36 L. Ed. 2d 366 (1973), should be closed. There

may certainly be some investigative activity of the gov-

ernment so violative of fundamental fairness that the Due

Process Clause would prohibit the prosecution of the

case. However, the Colorado Court of Appeals drew the

line in the wrong place and, by so doing, inhibited for-

ever legitimate government investigation into crime

occurring within the judicial system. The impact of its

decision applies equally to potential investigations of

attorneys, judges, prosecutors, or court personnel. Any

prosecutor reading the Auld decision will conclude that

an undercover operation involving the filing of a ficti-

tious court case is likely to violate the Due Process

Clause.

CONCLUSION

It is clear that the government'’s activities in this case

did not violate any constitutional right of the defendant.

The Colorado Court of Appeals decision, therefore,

upsets the delicate balance of interests embodied in this

Court’s applications of the exclusionary rule. In United

States v. Payner, 447 U.S. 727 (1980), this Court cautioned

against the use of a court’s supervisory powers to dismiss

a case, because of the dangers inherent in the exercise of

“a standardless discretion.” Payner, 447 U.S. at 733. The

1]

Auld decision establishes a precedent of rewarding the

wrongdoer for the government's violations of an ethical

rule, even when there is no arguable impact of that viola-

tion upon the defendant’s rights.

If it is impermissible conduct for the government to

create a fictitious case, not only will attorneys, in a practi-

cal sense, be immune from prosecution for crimes com-

mitted within the context of their legal employment, but

the investigation of corrupt judges and prosecutors will

likewise be curtailed. Unless the decision is reversed, the

Auld case will continue to have a chilling effect on the

government's use of covert methods to investigate crime

within the justice system for years to come.

Respectfully submitted,

Mitton K. Blakey *

District Attorney

KeitH Cross

Assistant District Attorney

SPECIAL PROSECUTORS

Attorneys for Petitioner

109 8th Street, Suite 308

Glenwood Springs, Colorado 81601

Telephone: (303) 945-8635

* Counsel of Record

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App. 1

APPENDIX A

COLORADO COURT OF APPEALS

NO. 89CA0995

THE PEOPLE OF THE STATE )

OF COLORADO )

Plaintiff-Appellant,

V. )

ROBIN K. AULD,

Defendant- Appellee. )

Appeal from the District Court La Plata County

No. 88CR129

Honorable Richard J. Brown, Judge

DIVISION III JUDGMENT AFFIRMED

Opinion by JUDGE NEY

Metzger and Ruland, JJ., concur

Keith Cross, Special Prosecutor

Glenwood Springs, Colorado

Attorney for Plaintiff-Appellant

Haddon, Morgan & Foreman, P.C.

Harold A. Haddon

Rachel A. Bellis

Denver, Colorado

Attorneys for Defendant-Appellee

The People appeal the judgment of the district court

dismissing a criminal information charging defendant,

Robin K. Auld, with one count of theft by receiving and

one count of possession of a dangerous weapon. We

affirm.

App. 2

In 1988, La Plata County law enforcement officials

obtained a federal funding grant for the conduct of

undercover activities aimed at drug trafficking, a project

known by the acronym LEADS. The steering committee

for LEADS included the sheriff of La Plata county, the

district attorney for the Sixth Judicial District, and police

chiefs of various police departments within the judicial

district. Based on unsubstantiated information, the

LEADS Committee initiated an undercover operation tar-

geting the defendant, who was an attorney.

A fictitious complaint was filed against a “Colton

Young” in the county court. “Colton Young” was in fact

the alias of an undercover agent. The fictitious complaint

was drafted by the district attorney, typed by his secre-

tary, signed by a sheriff’s officer, and notarized by the

wife of the district attorney.

“Colton Young” was “charged” with carrying a con-

cealed weapon and possessing marijuana. He was

brought before a county judge, advised of his rights, and

questioned by the court about general information relat-

ing to his identity, status, and bond. The undercover

agent made several false statements to the judge, who

was unaware of his true identity, and posted a surety

bond, which was sworn to under oath in front of a deputy

clerk for the county court. “Colton Young” then retained

the defendant to represent him in his defense. The defen-

dant telephoned the court to determine the status of the

charges against “Colton Young.”

After having paid the defendant his retainer in cash,

the undercover agent asked if the remainder could be

App. 3

paid by giving something in trade. The defendant imme-

diately replied that if cocaine was being suggested, he

would not accept it; however, he stated that he might be

interested in a gun at “a black market price.”

Under the terms of the LEADS grant, the scope of its

activities was limited to drug enforcement activities;

therefore, the program could no longer be used to justify

further action after the defendant rejected the oppor-

tunity to take drugs in exchange for legal services. Nev-

ertheless, the LEADS committee, through the undercover

agent, presented the defendant with weapons, first as

collateral for his fee, and eventually in payment of his

fee. His acceptance of an Uzi semiautomatic rifle led to

the charges against the defendant.

After the defendant's arrest, the district attorney and

law enforcement officers discussed with him the possi-

bility that the charges would “go away” if he provided

information about a number of people, including present

or former clients. The defendant refused.

In response to a pretrial motion by defendant, the

charge was dismissed, and this appeal was pursued by

current counsel for the People.

I.

The People assert that the trial court’s dismissal of

the case against the defendant violates the doctrine of

separation of powers. We disagree.

The United States Supreme Court has recognized the

existence of the legal defense of outrageous governmental

App. 4

conduct and has found application of a court’s super-

visory powers in dismissing a criminal case may be

proper if the government’s conduct has violated funda-

mental fairness and is shocking to the universal sense of

justice. United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637,

36 L.Ed.2d 366 (1973). Colorado recognized the due pro-

cess claim of outrageous governmental conduct in Bailey

v. People, 630 P.2d 1062 (Colo. 1981).

In People in Interest of M.N., 761 P.2d 1124 (Colo.

1988), this concept was again at issue. There, the court

accepted its viability, but it determined that an under-

cover agent’s encouragement of a minor to purchase

drugs and commit crimes, as well as providing a minor

with illegal drugs, was not so extreme and outrageous as

to amount to a denial of due process. Accordingly, the

trial court’s dismissal of delinquency proceedings against

the minor was reversed by the supreme court.

Relying on People in Interest of M.N., supra, the trial

court here denied defendant’s motions to dismiss that

were grounded on governmental misconduct and outra-

geous governmental conduct which denied him due pro-

cess, on targeting him without probable cause or

reasonable suspicion, on failure to cease the operation

when he refused drugs, and on infringement of the attor-

ney-client relationship. However, the court granted

defendant’s motion to dismiss based on alleged outra-

geous governmental conduct that had implicated the

court in law enforcement activities.

The Peopie in effect admit that the district attorney

here has perpetrated a fraud upon a court of this state by

filing false documents, making false statements to a

App. 5

judge, and creating a counterfeit prosecution. They fur-

ther concede that as a result of the district attorney’s

activities, the county court was duped into playing an

active part in the prosecutorial function of the executive

branch. It was therefore the executive branch which ini-

tially violated the doctrine of the separation of powers.

As the trial court correctly observed:

“How far can the Executive Branch involve the

Judicial Branch, whether knowingly or

unknowingly, as an accomplice to its undercover

operations. . . . If there is any separation of

powers and any independence of the branches

of the government, then it cannot be that a law

enforcement officer or a district attorney decides

when and to what extent the judiciary becomes

involved, knowingly or unknowingly, in its

undercover operations. This is particularly so

when the courts are supposed to be the one

arena of impartiality favoring neither the pros-

ecution nor the defense.”

We agree with this analysis and reject any invocation

of the separation of powers doctrine as a basis for rever-

sal of the trial court’s ruling.

Il.

The People next assert the trial court’s dismissal

must be reversed because the government’s conduct did

not prejudice the defendant. We disagree.

The People suggest that there is no Colorado case

and very few cases in other jurisdictions which support

dismissal for government misconduct absent a finding of

App. 6

actual prejudice to the defendant. This argument incor-

rectly assumes that the court’s dismissai was based upon

the improper conduct of targeting the defendant in an

investigation without reasonable suspicion or attempting

to use an attorney as an informant against his clients.

However, as noted above, these acts of governmental

misconduct were not the basis of the dismissal.

Therefore, we are unpersuaded by the People’s argu-

ment that, since no actual prejudice to the defendant by

the governmental misconduct was demonstrated, the dis-

missal for outrageous governmental conduct cannot

stand.

Ill.

The People further contend that the trial court erred

in dismissing the charges against the defendant based

upon the outrageous governmental conduct that impli-

cated the court in the prosecution aspect of the law

enforcement process. We again disagree.

Relying on the reasoning of United States v. Omni

International Corp., 634 F. Supp. 1414 (D. Md. 1986), the

trial court exercised its supervisory power in protecting

judicial integrity in the face of governmental misconduct.

The trial court found, with evidentiary support, that the

conduct of the district attorney, an officer of the court,

and the law enforcement agencies may have violated the

Colorado Criminal Code relating to perjury and false

swearing.

In addition, the district attorney may very well have

violated the Code of Professional Responsibility by using

App. 7

perjured testimony, making false statements to the court,

and by the manner in which he performed the duties of a

public prosecutor. Also to be considered is ABA, Stan-

dards for Criminal Justice, Standard 3-2.8(a) (1980) which

denotes as unprofessional conduct the intentional misrep-

resentation by a prosecutor of matters of fact or law to

the court.

The foregoing list of potential violations, which is not

intended to be exhaustive, committed by the district

attorney and law enforcement agencies for the purpose of

duping a court into becoming an accomplice in their law

enforcement function must be condemned by this court.

Relying on United States v. Murphy, 768 F.2d 1518 (7th

Cir. 1985), the People assert that even though some rules

have been broken, dismissal is not warranted even if the

courts have been compromised.

The People’s reliance on Murphy is misplaced. Mur-

phy, which arose out of a federal investigation of corrup-

tion in the Chicago judicial system, is readily

distinguishable.

An undercover investigation of an allegedly corrupt

court system necessarily implicates the court system, and

the Chicago investigation was conducted under the

supervision of the presiding judge. Here, there was nei-

ther a corrupt court to be investigated, nor judicial super-

vision of the investigative activities.

We conclude that the trial court correctly determined

that the conduct of the executive branch in compromising

the judicial branch, thereby making it an unknowing

App. 8

accomplice to undercover prosecution activities, was so

outrageous that appropriate sanctions are required.

IV.

The People finally assert that even if sanctions are

appropriate, dismissal is too severe a sanction. In

response to an invitation to suggest an appropriate sanc-

tion, the People have proposed that the political process

may provide the only appropriate remedy. We are unper-

suaded that the sole remedy lies in the electoral process.

We conclude that when the integrity of the court is com-

promised, as here, by overzealous prosecution, dismissal

of the case is an appropriate remedy.

The judgment is affirmed.

JUDGE METZGER and JUDGE RULAND concur.

App. 9

APPENDIX B

SUPREME COURT, STATE OF COLORADO

Case NO. 91SC158

Certiorari to the Colorado Court of appeals 89CA0995

La Plata County District court 88CR129

ORDER OF COURT

THE PEOPLE OF THE STATE OF COLORADO,

Petitioner,

v.

ROBIN K. AULD,

Respondent.

Upon consideration of the Petition for Writ of Cer-

tiorari to the Colorado Court of Appeals, and after review

of the record, the briefs, and the opinion of said Court of

Appeals,

IT IS THIS DAY ORDERED that said Petition for Writ

of Certiorari shall be, and the same hereby is, DENIED.

BY THE COURT, EN BANC, AUGUST 26, 1991.

CHIEF JUSTICE ROVIRA would grant as to the fol-

lowing issues:

Whether the court of appeals erred in affirming the

trial court’s dismissal of the case as not violative of the

doctrine of separation of powers by infringing upon the

authority of the district attorney to carry out his or her

constitutionally imposed duty to enforce the criminal

App. 10

laws of the State of Colorado.

order to place an undercover officer in the position of the

“client” of the defendant, an attorney, and the subsequent

dismissal of the case, constitute outrageous governmental

Whether the filing of a fictitious county court case, in

misconduct under Colorado law.

[SEAL]

cc:

Keith Cross

Special Prosecutor

Assistant District Attorney

109 8th St., Suite 308

Glenwood Springs, CO 81602

HADDON, MORGAN & FOREMEN

Harold A. Haddon

Rachel A. Bellis

150 E. 10th Ave.

Denver, CO 80203

Honorable Richard J. Brown

La Plata County District Court

1060 Second Avenue

P.O. Box 3340

Durango, CO 81302-3340

James Benway, Clerk

Colorado Court of Appeals

App. 11

APPENDIX C

Appeal from the District Court of La Plata County, Colo-

rado, to the Colorado Court of Appeals. Opinion issued &

judgment entered January 17, 1991 before Ney, Metzger

and Ruland, JJ.

COURT OF APPEALS, STATE OF COLORADO

2 East Fourteenth Avenue, Suite 300

Denver, Colorado 80203

(303) 837-3785

MANDATE

Court of Appeals No. 89CA0995

Trial Court No. 88CR129

PEOPLE v. ROBIN K. AULD

This cause came to be heard on the record on appeal from

the District Court of La Plata County, and was argued by

counsel, on consideration thereof, it is ordered that the

Judgment of said Court is AFFIRMED.

DATE: September 12, 1991 JAMES G. BENWAY

Clerk of Court

By: /s/

Deputy Court Clerk