A special prosecutor on Thursday dismissed a criminal charge against a Durango defense lawyer who was indicted by a grand jury on suspicion of tampering with physical evidence in a murder investigation.
Brian Schowalter, 41, said he didn’t do anything wrong during his representation of Shanice Smith, who pleaded guilty earlier this year to robbery and accessory to murder.
Schowalter faulted 6th Judicial District Attorney Todd Risberg for seeking the indictment and filing the charge.
“I’ve been in this town for 14 years building a practice,” Schowalter said. “I have a young family. For this guy to come after me wrongly, it’s outrageous. I’m angry. I should have never been in this situation in the first place.”
Schowalter was accused of being in possession of an original letter that was considered evidence in the homicide investigation.
He was accused of refusing to turn over the letter, making it unavailable for use in a criminal proceeding, a violation of the law.
Risberg obtained an indictment against Schowalter in August through the La Plata County grand jury. He filed a formal charge of tampering with physical evidence.
Risberg and local judges recused themselves from the case, citing a conflict of interest.
Christa Maestas, chief deputy district attorney with the 12th Judicial District Attorney’s Office, which includes Alamosa, was appointed to handle the case.
The case was overseen by 22nd Judicial District Judge Todd Plewe.
In order to be found guilty of tampering with physical evidence, prosecutors must prove the defendant acted with intent – an element Maestas said she couldn’t prove beyond a reasonable doubt based on the evidence.
But she did file an ethics complaint with the Attorney Regulation Council, something local defense attorneys said Risberg should have done to begin with.
“While the defendant’s conduct was reprehensible, obviously frustrating the prosecution’s search for the truth, and his behavior was certainly unethical, it may not have risen to the level of criminal intent required and would be questionable whether such intent could be proven beyond a reasonable doubt,” she wrote in her motion to dismiss.
In an interview Thursday, Risberg said the grand jury issued the indictment based on evidence it saw, and the case played out the way the system is supposed to work.
“I guess I agree with the special prosecutor’s assessment, that what he did was wrong,” Risberg said. “He had physical evidence in a murder case. We tried multiple ways to get that voluntarily. He refused to turn it over.”
Schowalter’s Denver defense attorney, Mike Root, said it is “scary” for defense attorneys to think they may become the subject of a criminal investigation for doing their jobs well.
“We believe Brian was just aggressively representing his client,” Root said.
The criminal charge caught the attention of local defense attorneys, including Tom Williamson, who said it is troubling to think the district attorney would use his protectoral powers to go after a fellow attorney who was doing his job.
On Thursday, Williamson said local attorneys had a negative reaction to the charges, and that feeling may still exist.
“I think there’s going to be further repercussions from this,” Williamson said.
Risberg said no one is above the law, and he can’t refuse to indict someone based on whether they’re a friend or fellow lawyer.
“In a sense, I’m glad it worked out best for Brian,” Risberg said. “I think that he’s a decent person.
“We’ll see how the (Attorney Regulation Counsel) process turns out.”
shane@durangoherald.com
