DENVER — The defense attorney for Sen. Pete Lee filed a motion Tuesday to dismiss the indictment in which Lee was charged with providing false information about his voting residence, saying prosecutors unknowingly provided the grand jury that indicted him with false information.
Lee, the Democrat who represents District 11 in El Paso County, was indicted on the lone felony charge in early August. The indictment claimed he voted in a March 2020 election from his home at 216 North Sheridan Avenue, in District 11, but that his primary residence was at his home in the 1600 block of West Cheyenne Road, which is in District 12.
But according to the motion to dismiss the grand jury indictment filed by attorney David S. Kaplan on Tuesday, the 4th Judicial District Attorney’s Office “unknowingly” told the grand jury wrong information. The developments and filing were first reported by The Denver Post.
Kaplan claims in the filing that a woman at the Office of Attorney Regulation Counsel (OARC) told prosecutors that Lee had changed his home residence with the Colorado Supreme Court Attorney Registration System from the North Sheridan Avenue address to the West Cheyenne Road address in December 2019.
But according to Kaplan, when Lee submitted his address when registering that day, he submitted the North Sheridan Avenue address. However, prosecutors on multiple occasions used this information from the OARC representative in presentations to the grand jury to support their push for an indictment.
Howard Black, a spokesperson for the 4th Judicial District Attorney’s Office, confirmed a sworn affidavit was submitted to the district attorney’s office from the attorney registration office that prosecutors presented to the grand jury.
“These misstatements and erroneous facts presented to the Grand Jury are not peripheral to the charges sought and the indictment rendered, they are a material misrepresentation of the facts used to obtain an indictment,” Kaplan wrote in his motion. “…It irreversibly taints [the grand jury’s] deliberations and creates a fatal flaw in the indictment.”
Black, the DA's office spokesperson, said Tuesday the attorney registration office contacted the district attorney’s office to make corrections to their previous sworn affidavit, which was submitted on Sept. 17. He said he could not say what the changes were and that they were under review by prosecutors.
On Wednesday, the 4th Judicial District Attorney’s Office tweeted that it would not be dropping the charge.
“Despite this correction from the Colorado Supreme Court Attorney Registration office, the evidence continues to support a determination that probable cause exists to reasonably believe the defendant committed the crime charged in the indictment.
2022CR4096 (Mr Lee) Despite this correction from the Colorado Supreme Court Attorney Registration Office, the evidence continues to support a determination that probable cause exists to reasonably believe the defendant committed the crime charged in the indictment.— 4th Judicial DA (@4thJudicialDA) September 21, 2022
Kaplan declined to comment on what the district attorney's office announced Wednesday.
His motion said that evidence of the false information was confirmed in discovery materials prosecutors sent to the defense counsel on Sept. 16.
Kaplan also wrote that he also received additional discovery on Sept. 19 that included a statement from a clerk in the attorney registration office in which she admitted the error.
Kaplan argues in the motion that since the grand jury did not return a true bill regarding a November 2019 vote made by Lee because it was before his purported – but allegedly untrue – address change, and that the only information used to return a true bill on the count he was indicted on was not true, that the court was in “a unique position” to consider dismissing the case.
“To allow the Grand Jury’s indictment to stand, in light of the material erroneous information provided for their consideration, is to make a mockery of the use of the grand jury and lose the confidence citizens have in an indictment being a fair determination of whether a prosecution should be initiated,” Kaplan wrote in the motion.
Lee appeared in court on Tuesday but the judge in the case did not rule on Kaplan’s motion. He set a motions hearing for Oct. 18. Lee is not running for re-election in November and a new senator for the district will take the seat in January.
He told Denver7's news partners at The Denver Post Tuesday: ““I look forward to having the court evaluate the merits of our motion to determine whether the material misstatement of fact was a significant factor in the grand jury’s decision.”