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COUNTY COURT; LARIMER COUNTY, COLORADO

201 La Porte Avenue


Fort Collins, CO 80521-2761
(970) 498-6100
PEOPLE OF THE STATE OF COLORADO vs.

Defendant: MICHAELLA L. SURAT


▲ COURT USE ONLY ▲
CLIFFORD E. RIEDEL
District Attorney; Eighth Judicial District of Colorado

MITCHELL T. MURRAY, #17930 Case No: 2017M965


First Assistant District Attorney
201 La Porte Avenue, Suite 200 Courtroom: 4D
Fort Collins, CO 80521-2763
Phone: (970) 498-7246; Fax: (970) 498-7250
PEOPLE’S MOTION FOR SANCTIONS
COMES NOW CLIFFORD E. RIEDEL, District Attorney in and for the Eighth Judicial
District of the State of Colorado, by Mitchell T. Murray, his duly appointed, qualified and acting
First Assistant District Attorney, and respectfully files this Motion to admit expert testimony, as
follows:

1. The Defendant is charged with resisting arrest and obstructing a peace officer, class 2
misdemeanors.

2. Jury trial in this matter originally commenced on January 8, 2018. A jury was selected
and the People presented testimony of Officer Randall Klamser. During the course of his
testimony, a redacted version of his body camera video, lasting 4 minutes and 41 seconds,
was played for the jury. During the noon hour of the second day of trial, the defense
“discovered” that they had photos that had not been disclosed to the People or included in
their exhibit list. Based upon the failure to disclose, a mistrial was declared and the trial
was reset for April 30, 2018.

3. On April 30, 2018, prior to beginning jury selection, the defense moved to continue the
trial so they could retain an expert witness. The People did not object to that request and
the trial was continued to August 13, 2018.

4. Following the continuance of the April 30, 2018 trial date, defense attorney David Lane
participated in an interview and related news story with CBS 4 News in Denver and the
Coloradoan newspaper. Mr. Lane made numerous comments regarding the facts and
evidence in this case and provided a complete copy of a body camera video he received in
discovery to the media outlets. The video provided by Mr. Lane and published by the
Coloradoan included footage which this court had ruled could not be admitted in to
evidence.
5. Colorado Rule of Criminal Procedure 16(III)(c) states:

Materials furnished in discovery pursuant to this rule may only be used for purposes
of preparation and trial of the case and may only be provided to others and used by
them for purposes of preparation and trial of the case, and shall be subject to such
other terms, conditions or restrictions as the court, statutes or rules may provide.

6. Further, according to Crim.P. 16(III)(g):

If at any time during the course of the proceedings it is brought to the attention of the
court that a party has failed to comply with this rule or with an order issued pursuant
to this rule, the court may order such party to permit the discovery or inspection of
materials not previously disclosed, grant a continuance, prohibit the party from
introducing in evidence the material not disclosed or enter such other order as it
deems just under the circumstances.

7. The officer’s body camera footage was provided to the defense by the People consistent
with the requirements of Crim.P. 16(I). The defense then chose to use the footage in a
media campaign with the obvious purpose of calling into question the witness’s
credibility and bolstering the defendant’s theory of defense. The statements and actions
of counsel were an attempt to influence the potential jury pool in this case. This use of
the discovered materials was clearly not for “purposes of preparation and trial of the
case.”

8. The decision whether to impose a sanction for a violation of Rule 16 is within the sound
discretion of the trial court and will not be disturbed on appeal unless it is manifestly
arbitrary, unreasonable, or unfair. “The imposition of sanctions generally serves the dual
purpose of protecting the integrity of the truth-finding process and deterring discovery-
related misconduct. People v. Lee, 18 P.3d 192 (Colo. 2001).

9. Mr. Lane’s televised interview with Channel 4 was conducted while the body camera
video played on his computer, visible to the camera. Comments from Mr. Lane included:
a. He doesn’t have a right to grab her, and she has a right to resist under Colorado
law. He has no legal right to use that force, and she has a legal right to refuse that
force.
b. Did he produce any evidence of those scars? Not one shred. They had pictures of
everything. He said she dug her nails in his neck and there’s not a mark on him.
Not one shred of proof.
c. If that was not a cop, and he did that he would be facing felony assault charges,
but it’s a cop so now she’s the defendant.
d. What do I think, I think the cops are liars.

10. Quotes attributed to Mr. Lane in the Coloradoan article include:


a. The police have been hiding behind this body cam that they refuse to disclose as
vindicating their position. The body cam makes Klamser out to be a liar. Let the
public see the truth.
b. ... what you see in the cell phone video is a felony assault by a police officer by
Randall Klamser on Michaella Surat. The police have defended by saying 'oh
once the public sees the body cam, it would vindicate Klamser.'
c. But I know that that's a lie. And they are engaged in a disgusting coverup to
protect the police from civil liability.
d. I would like to get the U.S. justice department to look at this whole case to
determine whether criminal charges should be brought and I will let a jury ...
decide whether Klamser used excessive force or not.

11. Rule 3.6(a), of the Colorado Rules of Professional Conduct, states as follows:

A lawyer who is participating or has participated in the investigation or litigation of a


matter shall not make an extrajudicial statement that the lawyer knows or reasonably
should know will be disseminated by means of public communication and will have a
substantial likelihood of materially prejudicing an adjudicative proceeding in the
matter.

12. The official “Comments” to Rule 3.6 provide further explanation of the scope and
purpose of the rule. Paragraph [5] of the Comments states, “There are, on the other hand,
certain subjects that are more likely than not to have a material prejudicial effect on a
proceeding, particularly when they refer to a civil trial to a jury, a criminal matter, or any
other proceeding that could result in incarceration.”

13. Among the situations “that are more likely than not to have a material prejudicial effect
on a proceeding” are when the subject of the statement relates to the character, credibility,
or reputation, of a party or witness.” Further, the Comments go on to state that “criminal
jury trials will be the most sensitive to extrajudicial speech.”

14. The conduct of defense counsel in publishing the officer’s body camera footage violates
Crim.P. 16(III)(c). The statements of defense counsel and release of the body camera
footage violates Rule 3.6 of the Colorado Rules of Professional Conduct. The People
request, consistent with the authority of Crim.P. 16(III)(g), that the Court enter an order
(1) finding a violation of 16(III)(c) and Rule 3.6, (2) admonishing defense counsel
concerning his violations, (3) prohibiting the evidence in this case from being distributed
to any third party without prior approval by the Court, and (4) imposing appropriate
sanctions.

WHEREFORE, the People respectfully request the Court issue an order (1) finding a
violation of 16(III)(c) and Rule 3.6, (2) admonishing defense counsel concerning his violations,
(3) prohibiting the evidence in this case from being distributed to any third party without prior
approval by the Court, and (4) imposing appropriate sanctions.
Submitted this 11th day of May, 2018.

CLIFFORD E. RIEDEL
District Attorney

By:
_/s/Mitchell Murray_________
Mitchell T. Murray, #17930
First Assistant District Attorney

CERTIFICATE OF SERVICE

I certify that ( x ) I requested electronic service of the above via CCEF ( ) A true and
correct copy of the above has been deposited in the US Mail to the following this 11th day of
May, 2018.

Andrew Bertrand &


David Lane

/s/Erica Reyna
County Court Division

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