Hector Paez mistrial: Attorney on late-arriving evidence in case of cop charged with sex assault
Last October, Denver cop Hector Paez was charged with forcing a woman to give him oral sex in order to avoid jail. But the case against him is now in mistrial due to questions involving evidence whose late arrival left Paez attorney Gary Lozow thunderstruck. "It was a little like Alice in Wonderland," Lozow says. "It was hide and seek."
Paez is accused of having arrested a 36-year-old woman (described in a preliminary hearing as a heroin user with a lengthy rap sheet) in May of 2010, then taking her to an isolated location and forcing her to perform oral sex on him in order to avoid winding up behind bars. Last fall, he was charged with second-degree kidnapping, sexual assault and an attempt to influence a public servant by lying about the incident during a subsequent Internal Affairs investigation.
Throughout the process, Paez has denied the allegations against him.
On Tuesday, following jury selection, the case was scheduled to begin. But early on, the Denver Police Department provided a piece of evidence previously unknown to Paez's defense team -- a recording of a phone call involving the victim. And that afternoon, a second phone recording of the victim surfaced.
The next morning, the Paez team questioned Sergeant Kimalee Hull, the person charged with gathering the information in question, about why the recordings hadn't been provided when defense lawyers requested evidence against Paez last year. She said the recordings had wound up in a file she'd forgotten about, and to which other officers had no access -- and she didn't find them until the last minute. She also mentioned a third recording, made when the victim was in a police car, but she recalled it being badly garbled and guessed that she had simply deleted it.
At that point, Lozow asked that the case be dismissed and the prosecution be sanctioned. Denver District Judge Robert McGahey said "no" to these requests, but he did grant a mistrial, after which the jury was disbanded. Then, after members headed home, the prosecution revealed that it had found the third recording -- the one Hull thought she'd tossed out.
As a result of these bizarre turns, a new hearing has been set for later this month, during which the court can entertain more motions -- with one possibility being the argument that finding a new jury and putting Paez on trial again might constitute double jeopardy.
Lozow's take? "It's very unfortunate for Officer Paez to have to go through the stress and expense of preparing for a trial that was a year in the making -- to protest and be assertive in his innocence -- only to find out after a jury is picked that police officers involved in the investigation have not disclosed relevant material evidence in a timely fashion.
"This information was sought both through discovery and through subpoenas, and we didn't get it -- and that's how you're supposed to get it. And then, what's even more disconcerting is that we moved for a mistrial on the premise that a tape has been destroyed -- and everybody knows that's the reason, it's articulated in the record -- and after the jury is let go, they somehow find the tape. That's not how the system is supposed to go forward."
When asked about the impact of the situation on Paez, Lozow says, "It's been very stressful for him. Sometimes innocence takes a long time to spell out, but this was a very difficult thing to have happen when you think you're finally going to get a resolution on these charges."
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