Category Archives: prosecutorial discretion

Colorado DA Mark Hurlbert’s Latest Idiotic Case: Female Coach Who Had Sex With Almost-Adult Male Student Faces Life In Prison; Saga Grows More Hilarious As Eagle Sheriff Releases Titillating Details

Let’s begin today’s update on Mark Hurlbert and Colorado’s latest legal

Coach Redfern Looking Pretty Good for a Booking Photo

telenovela by correcting several important details about Basalt High Girls Basketball coach studess, just-turned 26-year old Lauren Redfern, and her more than consensual sexual relationship with a very late teen, who I will for now refer to by the name “Slugger.”  Credit for the man-child’s apt moniker belongs to the fun writers at the popular celebrity site Busted Coverage.   And like many stories involving baffling Mark Hurlbert case filing decisions, this one’s now gone international and is cracking up readers across the pond in the U.K’s photo-studded Daily Mail.

I posted here on Thursday,  based on news reports, that Slugger, a senior at Basalt High, was a tender child of the mere age of 17 1/2 at the time he was violated.  But according to Eagle County Sheriff’s documents filed in court February 17, Slugger but was a full 17 and 11/12th years old at the time of his most recent heinous “sexual assault” at the hands and otherwise of Coach Redfern.   And another sexual encounter occurred right after Slugger hit the big 1-8, but Slugger was no longer a victim of a serious felony at that point.  I’m hoping we’ll see a hunky photo and learn Slugger’s name real soon.

Coach Goes To Court February 17, Eagle, CO. Is that hottie behind her Slugger?

And speaking of serious felonies, original reports I cited stated Coach Redfern faced up to 16 long years in a costly-to-taxpayers,  union-run Colorado prison for her multiple acts of “sexual assault” against Slugger.  The Fifth Judicial District’s lame duck, term limited DA Mark Hurlbert helpfully set the record straight that Colorado is not some pansy, slap-on-the-wrist state in serious “sexual assault” cases such as allegedly committed by Coach Redfern upon the helpless, passive, athletic male body of Slugger.  No, no, no, no as we say in Mexico.   Redfern actually faces life in prison for what she allegedly did to Slugger.

Not that Slugger’s felonious victimizer would actually receive such a Sharia Lawesque sentence, because DA Hurlbert will be considering all the “mitigating and aggravating” circumstances in negotiating a likely plea bargain, and the judge will do the same in imposing sentence.  But life as one knows it is basically destroyed by the mere stroking of some computer keys in just being charged with a felony.

Slugger Pursued The Coach!

I anticipate this revelation from the Eagle County Sheriff’s Department will be a major mitigating factor.

[Slugger] met with investigators at the sheriff’s office substation in El Jebel and told them he pursued Redfern romantically. He said they met two years ago and shared an interest in athletics and they worked out at the same gym. The student said Redfern was his study hall teacher.  [Slugger] said they got together several times starting in October and engaged in fondling, which advanced to sexual intercourse “about three times” in November and December, before he was 18. Their sexual relationship continued after he turned 18, according to his interview. He told deputies he believes he fell in love with Redfern. [Emphasis added] “[Slugger] explained that Redfern had no bearing on any of his grades or status within Basalt High School,” the affidavit said. “[Slugger] said that he never felt like he had to develop the relationship or continue it in exchange for any benefit or status.” Both Redfern and the student said they decided after “the bathroom incident” on Feb. 9 to discontinue their relationship until after the student graduated. They had little choice since the criminal investigation began the next day.

Bathroom Incident

Now,  what is this “bathroom incident”?  It’s a classic.

[Coach Redfern and Slugger] drew attention to themselves while allegedly having sex in the bathroom of the teacher’s office Thursday, Feb. 9, according to the Eagle County Sheriff’s Office. The athletic director of the school allegedly interrupted the encounter when he knocked on the bathroom door, said an affidavit filed in support of an arrest warrant. Teacher Lauren Redfern came out of the bathroom and exited the office with the athletic director while the student stayed behind, the affidavit said. “School administrators confronted the student who told them that he had sex with the teacher in the bathroom,” the affidavit continued. The document, which was filed in Eagle County District Court, didn’t make it clear if [Slugger] was questioned by school administrators on Thursday or Friday. Roaring Fork School District Superintendent Judy Haptonstall said she believed the incident occurred late in the day on Feb. 9 and that district administrators began investigating the morning of Feb. 10.

According to the U.K. Daily Mail, the "Bathroom Incident" occurred in a bathroom similar to this.

But it gets even better (or worse) when the “bathroom incident” and its aftermath is examined from my inevitable defense lawyer perspective.   That’s because the “bathroom incident” was perfectly legal because Slugger was now 18!  So if Slugger and Coach hadn’t opened their big mouths and “cooperated” with meddlesome government employees they would have been in the clear.

The bottom line is that the legislature is at fault for sloppily drafting this statute, but a DA has tremendous discretion on what charges to file against whom and where to spend taxpayer resources.  Mark Hurlbert is a lame duck in the upcoming November election, but there is no reason to believe his nominally-GOP second-in-command (another career bureaucrat like his boss), Scott Turner, would be much of an improvement.  I wouldn’t vote for Joe Biden any sooner than I would vote for Turner.

By contrast, private-sector lawyer Bruce Brown, nominally the Democrat opponent, seems to get very well that the vast majority of voters want a DA who goes full throtel after dangerous bad guys and doesn’t in cases like this one.  And  he brings voters some perspective-providing big city law background as well as years of private practice in Colorado as a respected, successful, ethical, case-winning attorney with 25 years’ experience.  Just what Colorado mountain county voters could use after nine insufferable years of Mark Hurlbert.

Colorado Female Basketball Coach Faces Felony Charges For Sex With 17-1/2 Year Old Male “Child” – Basalt High Teacher Lauren Redfern Charged by Eagle DA Mark Hurlbert

Basalt High's Lauren Redfern Coaching Her Girls Basketball Team - Aspen Times

In a bizarre story of legislative ineptitude, sure to invoke the ire of Fox’s Bill O’Reilly for all the wrong reasons, Eagle County District Attorney Mark Hurlbert has charged the hot, athletic, 25-year old Lauren Redfern with several acts of consensual sex with a male “child” who was also a student at Colorado’s Basalt High where Ms. Redfern taught him a P.E. class.  I kid you not, Ms. Redfern faces 16 long years in prison for this joke of a charge that at most should be a misdemeanor.

The Aspen Dailey News shares some details, as does the Aspen Times.  The Swift-owned Times explains the “nuances” of Colorado laws on young adults having sex with relatively old minors:

Colorado law has some nuances when it comes to sexual relations between people in their late teens and adults. An 18-year-old can have a consensual sexual relationship with an older adult, even a teacher, without a crime being committed, McWilliam said. That would violate policies of most schools, but it isn’t a crime because an 18-year-old is considered an adult.

A 17-year-old can have sexual relations with an adult of any age as long as it’s not a person in a position of trust — such as a teacher, according to McWilliam.

Sorry, but the hot adults a late teen is likely to meet are these “people of trust.”  Late teens generally can’t go to bars and meet untrustworthy adults there.  (I’ll be blogging later about how head District Attorneys in positions of trust are rewarded instead of punished for far worse sexual transgressions in Colorado’s 18th Judicial District as we follow the re-election bid of DA Elizabeth Oldham (RINO – Grand County).  Here’s a couple blog posts of mine from 2010 about DA Oldham and her transgressions.)

Back to the hot action at Basalt High.  How were these sexual encounters discovered?  Apparently the gossip mill was running at full-tilt in Basalt and school officials discovered the relationship while collecting their union paychecks.

Man-child “X”, the alleged victim,  is now 18, and did not seek to have charges pressed, nor did his family.  But according to nanny-state enabler Eagle County Undersheriff Mike McWilliam, this doesn’t matter one little bit.  “It’s really not in their hands,” McWilliam said of alleged victims in these heinous cases.  These are cases where we, “The People of the State of Colorado” are the aggrieved party.

Meanwhile, plenty of real dangerous criminals run free in Colorado and even down here in Los Cabos, Mexico, where real victims want real charges filed.  But they aren’t.

ExPat ExLawyer herself is one such victim here in Mexico.  Right now, I’m blogging from the left – not politically speaking -no, never.  Literally speaking.  My right arm was shattered in an unprovoked attack and I just had surgery involving six screws and one titanium plate.  The assailant meanwhile is still running around loose.  I’ll be blogging about my experience with the Mexican criminal justice system soon.

Mountain Bike Racer Charged with Felony In Leadville Race, Pleads to Misdemeanor: DA Hurlbert Drops Felony Against Wendy Lyall Under Public Pressure

Colorado Mountain bike racer, Wendy Lyall,  who used her friend’s registration  number to ride in a Leadville race last year and was charged with a felony,  appeared in court today and plead guilty to a misdemeanor trespass charge.   DA Mark Hurlbert dropped the felony criminal impersonation charge he originally filed against her, and instead Lyall will receive a deferred judgment under which she’ll be required to write a letter of apology and perform 45 hours of bicycle safety instruction.

The deferred judgment settlement represents the most lenient and speedy resolution of  the case possible, short of an outright dismissal.  It is not the type of resolution one would anticipate after the filing of a felony charge.  As we first reported, in a piece that gained national attention, this result should be considered a victory for grassroots activists and ordinary citizens to get out the message when they feel government officials are not representing them.

Mark Hurlbert himself got that message at the Colorado Republican Assembly on Friday  where his state Senate bid was quashed when he failed to qualify for the GOP primary ballot in August. Hurlbert was crushed by opponent Tim Leonard, 71 to 29 percent.

The fact remains, that a better resolution for everyone concerned could have and should have come without criminal charges.  I just finished an interview with race director, Ken Chlouber.  As we first reported, he wanted criminal charges dropped, as well as information privately conveyed to him that could help him improve security procedures at the race.  Chlouber confirmed that he knew nothing about the plea bargain until after court was over.  DA Hurlbert failed Chlouber in not securing this reasonable request, and managed to also fail Lyall, Chlouber and the public by not simply dropping criminal charges.

Hurlbert still damaged Wendy Lyall far more than this plea deal indicates because Hurlbert meted out so much  “extra-judicial” punishment before she ever stepped foot in court simply by filing unwarranted felony charges.

I don’t know Lyall, but I’ve heard from quite a few people who do know her, and  I doubt she would have needed a felony prosecution to agree to teach 45 hours of  bicycle safety.  Chlouber was very outspoken in our interview this evening, so much so that it warrants a separate article while I get out these basics about the case.

Under the deferred judgment plea, the case will be dismissed in one year as long as Lyall performs her two requirements of the apology letter and the bike safety instruction.  The record of the case is then automatically sealed and she will have no official criminal conviction or even a record of the charges.   Lyall will also be able to have the felony arrest record sealed upon application to the court and the payment of a filing fee.

Her friend, Katie Brazelton, who was injured and could not compete in the race and who gave her race packet to Lyall, faces a June 7 court appearance on a charge of  felony conspiracy to commit criminal impersonation.

Supreme Court Strikes Down Ban of Animal Cruelty Images: 8-1 Decision Upholds First Amendment – UPDATED for Colorado

The Supreme Court today in an 8-1 decision, struck down a law in which a man was criminally prosecuted for producing videos showing pit bulls fighting, allegedly in violations of a ban on depictions of animal cruelty.  The decision is a major First Amendment victory, as it may hold implications for overly broad content-based speech harassment laws, hate speech laws, and anti-bullying laws.  Leading First Amendment scholar, Eugene Volokh, has called content-based speech harassment laws the greatest free speech threat facing the U.S.

Chief Justice Roberts wrote for the majority in U.S. v. Stevens, with Justice Alito the sole dissenter.  The dissent in my view, mistakenly focused on the underlying animal cruelty depicted in some videos.  Such underlying behavior is illegal.  “Crush” type videos might also still be illegal, but the video at issue was not in that category, and efforts to stop illegal conduct must be narrowly applied so as not to tread on protected speech.

Eugene Volokh, aptly focuses on Chief Justice Robert’s demolition of the prosecutorial discretion arguments and the Holder Justice Department:

Not to worry, the Government says: The Executive Branch construes §48 to reach only “extreme” cruelty, and it “neither has brought nor will bring a prosecution for anything less,” The Government hits this theme hard, invoking its prosecutorial discretion several times. But the First Amendment protects against the Government; it does not leave us at the mercy of noblesse oblige. We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly.

This prosecution is itself evidence of the danger in putting faith in government representations of prosecutorial restraint. When this legislation was enacted, the Executive Branch announced that it would interpret §48 as covering only depictions “of wanton cruelty to animals designed to appeal to a prurient interest in sex.” No one suggests that the videos in this case [which involve dogfights and dogs attacking other animals] fit that description. The Government’s assurance that it will apply §48 far more restrictively than its language provides is pertinent only as an implicit acknowledgment of the potential constitutional problems with a more natural reading.

(All quotes by Chief Justice Roberts, emphasis added by Ex-Pat Ex-Lawyer).

It is critical that the public stays informed about the Constitution and the First Amendment and realizes, as the Chief Justice points out so well, it’s not about whether you like or agree with the underlying speech, and we can’t trust prosecutors or police to decide which cases they want to prosecute and which they don’t.  We wouldn’t need a First Amendment to protect speech everyone likes or agrees with.  If we wanted that, we could just become like  Canada, where conservative columnist Mark Steyn has spent $1.5 million fighting hate speech charges for criticizing Islam.

Updated  For Colorado: This law was so overbroad, it could have been used to send those

Co-Blogger Steffi Q., head of the Colorado Freedom to Bark Foundation, comments: "I support the right of humans to photograph me with a dead pheasant in my mouth."

who photograph or video hunting scenes to prison. When President Clinton signed the law in 1999, he recognized it was constitutionally overbroad but signed it anyways. The founding fathers recognized that all branches of government, not just the judicial branch, have a responsibility to  pass and enforce only laws that are constitutional.

That doesn’t mean they will attain perfection in attempting to do so,  and SCOTUS is the ultimate arbiter – but they need to try very hard.  Clinton issued a “presidential signing statement” on how he wanted the order to be enforced.  But it wasn’t binding on his own US Attorneys or future US Attorneys.  He simply should have vetoed the law, but of course liberal “animal rights” Dem constituents wouldn’t have liked that.

This same problem exists in spades in Colorado, where a lot of unconstitutional laws sit on the books and are applied, or not, depending on law enforcement, depending on the DA, depending on local judges, depending on whether the defendant is popular or has money.  The law in the Stevens case was applied against people for 10 years, and undoubtedly exerted a chilling effect on free speech rights during that period.

And of course, who can forget the “Dirty Dozen” tax increases that clearly violated the Colorado Constitution’s TABOR provision,  and where all three branches of government ignored the law.

Speech harassment laws that are unconstitutional unless very narrowly applied sit on the books now in Colorado, as observed in this Glenwood Springs incident I reported on in March.  Hopefully we’ll have a big legislative and gubernatorial shakeup in Colorado in November, and I pledge to ask every candidate whether they will make ridding the books of unconstitutional statutes (as well as merely stupid and/or outdated laws) a priority, and whether they unequivocally support Clear the Bench and will vote no-retain on the four justices targeted this November.