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Court Address: 1777 6th Street

Boulder, CO 80302



Defendant. Case Number: 14CR884

Iris Eytan, #29505

Dru Nielsen, #28775 Division: 4
3200 Cherry Creek South Drive, Suite 720
Denver, CO 80209
Telephone: (720) 440-8155
Facsimile: (720) 440-8156

Thomas J. Bath, Jr. KS #12971

7944 Santa Fe Drive
Overland Park, KS 66204
Telephone: (913) 652-9800
Facsimile: (913) 649-8494

Attorneys for Defendant Coleman Stewart

MOTION FOR: (1) Rule 48(a) “Open Court” Hearing; (2) Standalone Order of Dismissal
With Prejudice; and, (3) Order of Full Monetary Reimbursement, among Other Relief

This prosecution stunk, and the way it closed the case worsens the stench. After an

extraordinary reversal for cumulative errors that rendered the trial and jury verdict fundamentally

unfair, People v. Stewart, 417 P.3d 882, 2017 COA 99 (July 27, 2017), the prosecution closed the case
in a way that violates the rules. The Court should close the case in a proper manner that restores Cole’s


I. Closing this Case in Dead of Night Violated the Rule 48 “Open Court” Requirement.

The extraordinary manner in which this case was closed violated Colorado rules. On October

30, 2018 at 4:24 p.m.—not coincidentally, a day past the deadline for addressing an expert forensic

report proving the falsity of Boulder police officers’ trial testimony—prosecutors moved to dismiss

the indictment with no prior notice to the defense. This prosecution motion, with self-serving and

provable false recitations of the purported evidence, was quickly sent to the Boulder Daily Camera.

Then, at 8:14 p.m., a district judge with no prior involvement in the case rubber-stamped the

prosecution motion.

Under Colorado rules, however, “No criminal case pending in any court shall be dismissed

… by any prosecuting attorney … unless upon a motion in open court, and with the court’s consent

and approval.” Crim. P. 48(a). By definition, an “Open Court” is “A court that is in session, presided

over by a judge, attended by the parties and their attorneys, and engaged in judicial business.” Open

Court, Black’s Law Dictionary; see, e.g., People v. Allegheny Cas. Co., 161 P.3d 198, 201 (Cal. 2007)

(“The term ‘open court” typically is understood to refer to nothing more or less than a hearing or trial

held in a courtroom from which the public is not excluded.”). Thus, cases have “correctly recognized

that the term ‘open court’ mean[s] with a judge on the bench.” Stroble v. Anderson, 587 F.2d 830,

839 (6th Cir. 1978) (emphasis added). A proceeding “behind closed doors” is not conducted in “‘open

court’ as [that term] refers to a courtroom to which the public has access.” United States v. Alcantara,

396 F.3d 189, 205 (2d Cir. 2005).

One of the salutary purposes of open court requirements is “to permit the public to

understand” what happened. United States v. Carey, 895 F.2d 318, 325 (7th Cir. 1990). This does not

mean, as the prosecution did here, filing a document with no prior notice and too late in the day for a

defense response, but in time for transmittal to Boulder’s primary newspaper.

II. The Court Should Correct this Violation and Restore Cole’s Rights.

A. There should be an open court hearing with both sides present.

The Court should vacate the dismissal order and set the matter for hearing in open court. All

parties, including Cole and his family, were scheduled to be present for a motions hearing on

November 19, 2018. That date should be used instead for the open court hearing on the prosecution’s

dismissal motion, which should require no more than thirty minutes.

That hearing will effectuate the defense’s right to be heard on the terms of the dismissal, as

set forth in other sections below. While prosecutors undoubtedly have broad powers to dismiss a case,

Rule 48 was “intended to give the court some supervisory power over the prosecution of a case so that

the interests of justice, as well as the interest of the defendant and society, can be effected.” People

v. Lichtenstein, 630 P.2d 70, 72 (Colo. 1981) (emphasis added). This “‘supervisory power’ [is] more

than a judicial rubber stamp for the prosecution.” People v. Storlie, 327 P.3d 243, 246-47 (Colo. 2014)

(quoting Lichtenstein).

B. There then should be a standalone order of dismissal with prejudice.

The current order of dismissal not only was entered in a procedurally improper way but also

prejudices Cole Stewart’s substantial rights. For one thing, the rubber stamping of the prosecution’s

actual motion could be read to suggest some endorsement of the self-serving justifications offered by

prosecutors in that motion. We have no doubt the Court did not intend such an endorsement, and of

course a judge with no prior involvement in the case would have no basis for doing so, but the current

order should be replaced with a clean, standalone order to remove any possible perception of having

endorsed the prosecution’s claims.

The order should also provide that the dismissal of the charges against Cole is with

prejudice. There should be no doubt left on that score.

C. The Court should order full restitution and end all probation obligations.

The Court should order full refund of the $16,986.47 that Cole has paid in fines, fees,

restitution, interest, court costs, surcharges, or other monetary amounts from the overturned

conviction. In Colorado, he has paid $15,786.47 of the $20,276.00 he was ordered to pay over time.

See Ex. A (Co Courts), Ex B (Court order for prosecution costs), and Ex. C (Court order for

restitution). When probation was transferred his home state of Kansas, the required probation

supervision fee was $30.00 a month, and to date he has paid $1,200.00. See Ex. D (Email from Kansas

Probation Officer Cheri Mumma – official invoice is forthcoming).

These refunds are required by statute, C.R.S. §13-3-1145, and by the Federal Constitution.

See Nelson v. Colorado, 137 S. Ct. 1249 (Colo. 2017). Accordingly, the Court should order that the

Colorado State Court Administrator refund Mr. Stewart $16,986.47.

Also, due to the unfortunate method of the filing and order, Cole is still under probation

supervision, and is required to check-in with Kansas Probation and pay the $30.00 monthly fee. See

Ex. E (Email from Kansas Probation Officer). The defense therefore moves that that this Court order

Boulder Probation to provide Kansas Probation through interstate compact verification that the case

has been dismissed and the Cole Stewart should no longer be under probation supervision or have to

pay any additional supervision fees.

III. Conclusion

The prosecution filed its motion to dismiss, out of court, with more brazen and baseless
accusations. This case should conclude, as required by law with the Court ordering that the
prosecution’s motion to dismiss be filed and heard in open court; with Mr. Stewart in the courtroom;

and the Court ruling on the various outstanding issues necessary for a true and full dismissal in this
Respectfully submitted this 6th day of November, 2018.


s/ Iris Eytan
Iris Eytan, #29505


I hereby certify that on this 6th day of November, 2018, a true and correct copy of the
foregoing MOTION FOR: (1) Rule 48(a) “Open Court” Hearing; (2) Standalone Order of
Dismissal With Prejudice; and, (3) Order of Full Monetary Reimbursement, among Other
Relief was served via CCES to the following:

Adrian Van Nice

Office of the District Attorney
1777 6th Street
Boulder, CO 80306
Phone: 303-441-3700
Fax: 303-441-4703

s/ Ashli G. Pyles
Ashli G. Pyles