By Shane Benjamin Herald staff writer
A criminal defense lawyer in Durango has been indicted by a local grand jury on suspicion of tampering with physical evidence in a murder investigation.
The charge has caught the attention of local defense attorneys and possibly exposed a rift between prosecutors and the defense bar that extends beyond courtroom ideologies.
Brian Schowalter appeared Tuesday in 6th Judicial District Court in Durango to be formally advised of the felony charge.
Ten criminal defense lawyers sat behind him in an apparent show of support.
The court released a partial indictment Tuesday that contains little information about the facts of the case.
Schowalter is accused of being in possession of an original letter that was considered to be evidence in a homicide investigation involving his client, Shanice Smith, who pleaded guilty to robbery and accessory to murder and was sentenced in February to eight years in prison.
He is suspected of refusing to turn over the evidence, making it unavailable for use in a criminal proceeding, a violation of the law, according to the indictment.
Schowalter declined to comment for this story.
His Denver defense lawyer called the tampering charge “outrageous.”
“This appears to be an effort to interfere with a lawyer’s duty to his client and to prevent ethical but aggressive representation in criminal cases,” said Mike Root, who represents Schowalter.
District Attorney Todd Risberg obtained the indictment through a La Plata County grand jury.
Risberg declined to comment about the facts of the case other than to say Schowalter had evidence and refused to turn it over. The grand jury did an investigation to locate the evidence.
“He refused to tell us whether he had it, so we had to use a process to find the letter,” Risberg said.
Durango defense lawyer Tom Williamson, who attended Tuesday’s hearing, said in 28 years of criminal litigation, he has never seen a district attorney prosecute an attorney for alleged conduct that occurred during a case they both litigated.
If Risberg thought Schowalter did something wrong, he could have filed a grievance with the Colorado Attorney Regulation Committee, Williamson said. He suggested that Risberg’s inexperience played a roll.
“This is a heavy-handed approach, and it appears to be an attempt to intimidate attorneys who represent their clients against Mr. Risberg’s clients,” Williamson said. “Perhaps Mr. Risberg’s lack of litigation experience explains his decision to proceed in this manner.”
Risberg said he used every means available to get the evidence from Schowalter, and he refused to turn it over and denied he had it.
He called it an “uncomfortable” situation.
“I like Brian. But I have to do the job, and that’s part of the job,” Risberg said.
He said he doesn’t worry about what Williamson thinks.
“Defense attorneys may not like it, but they’re not allowed to hide incriminating evidence,” Risberg said.
A subpoena was filed to obtain the letter, but Schowalter refused to produce it and asserted his Fifth Amendment rights, Risberg said.
Risberg’s office has recused itself from the case. Instead, it will be prosecuted by the 12th Judicial District, which includes Alamosa.
Local judges also recused themselves from the case, which means it will be assigned to a retired judge or transferred to another judicial district.
Grand juries are independent investigative bodies that have broad investigative powers, including the ability to call and subpoena witnesses. They operate in secrecy. The proceedings are closed to the public, witnesses take an oath to keep their testimony secret and the identity of members serving on the jury are kept secret.
Risberg convened the grand jury in 2011, the first time anyone can remember a grand jury being formed in La Plata County.
“The grand jury heard the facts, and they determined he committed a crime,” Risberg said. “I think that’s important to remember.”
He added: “I would have much rather had this resolved voluntarily, but if someone won’t turn over evidence, we’re obligated to use whatever means necessary to get the evidence. If we know a defense attorney has the evidence and he denies having it and refuses to turn it over, we have to do something about that.”
Williamson said it is common knowledge in the legal community that grand juries will indict almost anybody. Only prosecutors present evidence; there is no defense. Jurors must find “probable cause” to indict, a much lower burden than “beyond a reasonable doubt.”
A New York state chief judge once famously said that prosecutors have so much control over grand juries that they could convince them to “indict a ham sandwich.”
“It sends a chill through attorneys when they see the district attorney will not only be willing to grieve you, but he will use whatever criminal power he’s got to get his way in a case,” Williamson said. “I think it’s an abuse of his authority.”