ALAMOSA — Technological glitches delayed a Tuesday hearing in a case related to the 2016 Floyd Dale McBride murder in Alamosa — and may interfere with a July 10th trial.
Cristo Esquibel, 39, was charged with felony first-degree assault for his alleged part in the McBride death, and his attorney Donald Cutler told District Judge Michael Gonzales his client was not willing to waive his right to a speedy trial, which he is entitled to. To continue the trial past its July 10th start date would infringe on that right.
That could be a major problem, since a hearing to deal with pretrial motions could not be held on Tuesday because Cutler said he could not get his computer system to play crucial audio and video files related to the case. On that note, Cutler filed a motion on Monday asking the judge to suppress all of those files.
Cutler had several previous outstanding motions scheduled to be heard on Tuesday, and he said those were based on evidence, documentation and written reports he had received, but he had not been able to compare those with the originally recorded interviews, so he was not prepared to go forward with the hearing.
“It’s not my burden to provide discovery,” Cutler said. “I am moving to exclude this evidence because I cannot access it.”
Judge Gonzales gave the prosecution until June 19th to file a written reply to Cutler’s latest motion and Cutler until June 21 to answer. The judge rescheduled the motions hearing for the afternoon of June 30.
“It’s clear we can’t go forward with motions,” Judge Gonzales said.
He said this is an issue the legal system has not had to deal with before. One of the questions arising from this situation, Judge Gonzales said, is whether or not it is sufficient for the DA’s office to provide the defense with discs of information, and then it is up to the defense to figure out how to access them, or does the DA’s office have to provide information that is readable and accessible to the defense attorneys.
“From my perspective, that’s the legal issue,” the judge said, “and I don’t know the answer to that today.”
Cutler explained to Judge Gonzales that all of the recordings he had received as discovery in this case — involving interviews conducted by the Colorado Bureau of Investigation, Alamosa Sheriff’s Office and Alamosa Police Department — have electronic glitches making it impossible for him to hear or view them.
Sometimes he could hear a video but not view it, or he could see a video but not hear it. Sometimes he could only get through part of a recording, and he couldn’t view or hear the rest. The same was true of both audio and visual recordings, he said.
Cutler said he could not find the source of the problem and had enlisted IT assistance but still could not make the recordings work on any of the systems in his office.
He added that he had received a large volume of such evidence, probably 25-30 recordings — about 30 hours worth — involving not only Esquibel but the numerous other codefendants and witnesses in this case. The only way he has been able to review this evidence to this point has been through written documents, but he has not been able to compare those with the actual recordings, he explained.
“I have no problem accessing photos, documents, anything other than the video/audio recordings in this case,” he said.
Since Cutler was unable to view discs of the recordings, he said Assistant District Attorney Ashley McCuaig provided him with an external hard drive of the discovery on May 5, but Cutler had the same problem with that. McCuaig then went to Cutler’s office last Saturday and tried to help resolve the technical difficulties in person, Cutler said.
McCuaig “personally witnessed the problems we were having,” Cutler said.
Cutler said he tried five different computers in his office, and none would play the recordings properly.
Cutler said in order to view and hear the recordings, he might have to go to the DA’s office and see/hear them there.
“We are presently a month from trial, and the defense has not been able to play these recordings,” Cutler said.
Jack Roth, from the Attorney General’s office, who is assisting the DA’s office in prosecuting this case, said while Cutler may not have been able to view or hear the recordings recently, he had received them back in September of last year so could have cleared up this electronic problem much sooner.
Roth added that the discovery was recoded and resubmitted to Cutler in January when the prosecution decided to make the discovery consistent in all of the nine co-defendants’ cases, so a page and paragraph in one co-defendant’s documentation would be the same page and paragraph in another’s.
Roth also said that when discs were provided to defense attorneys in this case, they were also given CD’s that allowed the attorneys to run the program to watch the recordings.
“They can be run on any media player,” he said.
He argued that the prosecution had done everything it could to provide discovery in a way that could be accessed.
Judge Gonzales said the situation is, however, that the defense attorney has still not been able to view the recordings. He said it would be interesting to know if this was a problem for any of the other attorneys. He said no one else has raised the issue.
McCuaig said no one had contacted him with a similar problem.
Roth said Cutler has filed 17 motions, the last of which was filed the night before not only seeking to exclude the interviews but also the “fruits from these interviews, which is just about everything, judge.” Roth said that kind of unreasonable sanction against the prosecution was not for something the prosecution had done wrong but the result of the defense not taking the time to do his work. Roth said he understood Cutler was busy and traveled all over the state representing clients, but so did he.
Roth said Esquibel might have to make a choice on his right to a speedy trial or his constitutional right to effective counsel.
Cutler said he was not the only one who had trouble viewing the evidence, and McCuaig had seen the problem for himself when he came to his office. Roth responded that Cutler’s motion should have been to continue the motions hearing and ask for help, not to suppress all the evidence.
Cutler said he had been trying to resolve the problem and saw no solution short of sitting in the DA’s office and viewing the recordings there.
Judge Gonzales said he was not going to suppress anything at this point, given the lack of information in front of the court.
He apologized to the witnesses who had come from out of town for the hearing on Tuesday and said he had cut his vacation short to come back in time for the hearing.