Key evidence in a kidnapping and gang-rape case was thrown out Monday by a deeply divided Colorado Supreme Court.
The kidnapping and rape occurred Oct. 11, 2002, after a woman and her husband left a Greeley bar.
According to the 4-3 opinion, a blue minivan containing several men pulled up next to the couple. The men pushed the husband away, grabbed the woman and sexually assaulted her at knifepoint.
The next day, Greeley police spotted the van and followed it back to the bar. They questioned the men inside at length.
The majority opinion, written by Justice Michael Bender, said defendant Juan Pascual should have been given Miranda warnings shortly after he and the other men were stopped.
Because Pascual wasn’t told of his right to remain silent, Bender and three other justices upheld a ruling by District Judge Gilbert Gutierrez that incriminating statements given by Pascual can’t be used at trial.
But Justice Rebecca Kourlis and two colleagues disagreed. They said Gutierrez failed to justify his conclusion, instead describing a case that weighed “more heavily in favor” of a conclusion that police acted correctly.
Critics of the high court have recently claimed it has become too liberal and that an increasing number of decisions have unfairly gone against prosecutors.
Bob Grant, executive director of the Colorado District Attorney’s Council, said these types of cases are always “close questions of law.”
“So to the degree that close questions of law are now going to be decided more in favor of the defense than the prosecution, that would cause concern as a prosecutor,” Grant said.
Ken Buck, Weld County’s DA, said he and other prosecutors “have an uphill battle with the Supreme Court. I think there are three solid votes against prosecutors.”
But former prosecutor Karen Steinhauser, a University of Denver law professor, said she believes the decision was “the right call.”
Steinhauser said Pascual was for all practical purposes in police custody, even though he wasn’t handcuffed, searched or given a Miranda warning at the scene and went voluntarily to the police station.
“The issue is that police have to give the Miranda warning if somebody is being interrogated and if somebody’s in custody,” Steinhauser said. Custody doesn’t only mean a person has been handcuffed or searched, but that a person like Pascual doesn’t feel free to leave, she added.
Bender pointed out that the keys to the van were taken, the van was impounded and at least six officers responded to the scene. Pascual was detained for more than nine hours, he added.
Buck said he will proceed with the case against Pascual.
Dave Morgan, Pascual’s lawyer, said the ruling “was wonderful news,” but he will still have to overcome testimony from the alleged victim and her husband.
“It leaves my guy facing rape-kidnap charges,” he said. “I do believe he is innocent, but it is a tough case.”
Staff writer Howard Pankratz can be reached at 303-820-1939 or hpankratz@denverpost.com.
