Criminal Justice

DA indicts opposing counsel in criminal case, says lawyer took Fifth over subpoenaed letter

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A Colorado criminal defense lawyer has been indicted by a La Plata County grand jury on suspicion of tampering with evidence in a murder investigation.

Attorney Brian Schowalter is accused of withholding a letter related to a homicide investigation of a client, Shanice Smith, who was sentenced to eight years earlier this year after pleading guilty in a robbery and accessory-to-murder case. Schowalter appeared in the 6th Judicial District Court in Durango on Tuesday, along with 10 criminal defense lawyers who sat behind him in the courtroom in an apparent effort to show support, reports the Durango Herald.

He declined to comment on his indictment, but Mike Root, a Denver attorney representing Schowalter in the criminal case, called it “outrageous.”

District Attorney Todd Risberg called the case against Schowalter “uncomfortable.” However, the DA said he was left with no other options after his opposing counsel not only refused to turn over the letter but denied having it, the newspaper reports. Risberg said Schowalter refused to produce the letter even when it was subpoenaed and asserted his Fifth Amendment rights.

Meanwhile, fellow Durango criminal defense attorney Tom Williamson, who attended Tuesday’s hearing but apparently is not representing Schowalter, agreed with Root that Risberg had overstepped appropriate boundaries.

If Risberg thought Schowalter did wrong, he should have filed an attorney ethics grievance against him, Williamson contended. “This is a heavy-handed approach, and it appears to be an attempt to intimidate attorneys who represent their clients against Mr. Risberg’s clients,” Williamson said. “Perhaps Mr. Risberg’s lack of litigation experience explains his decision to proceed in this manner.”

Risberg’s decision to convene a grand jury in 2011 is the first time anyone can remember a grand jury being convened in the county, the newspaper says.

The DA said he couldn’t simply ignore the fact that Schowalter had evidence, and did what he had to do when the defense lawyer refused to turn the letter over voluntarily.

“Defense attorneys may not like it, but they’re not allowed to hide incriminating evidence,” Risberg stated.

His office has now stepped aside from the case against Schowalter, and a prosecutor and a judge from outside the county are expected to pursue it in the future.

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