Park County News Extra

June 23, 2010


   In a 7 – 0 decision by the Colorado Supreme Court Monday, June 21, 2010, an order by District Judge Stephen Groome was overturned on appeal filed by Park County Deputy District Attorney Kathleen M. O'Brien, Eleventh Judicial District. The appeal, filed in April of 2009, halted the trial proceedings which could not continue without a decision on the issue of subpoena demands by the defendant, Malinda Spykstra, represented by former Deputy District Attorney Sean P. Paris as defense counsel.

The underlying criminal case involves allegations of sexual assault on a child by a person in a position of trust. Spykstra turned herself in to the Park County Sheriff's Office in January 2009 after a warrant was issued. Details of the case were sealed by Judge Groome. The victim in the case is referred to only as B.G.

Colorado Supreme Court Chief Justice Mary Mullarkey wrote the opinion overturning the trial court's decision regarding subpoenas filed by defense counsel relating to the victim's parents' electronic communication and storage equipment. Defense issued two subpoenas to B.G.'s parents commanding each of them to produce in court, before trial, every electronic device in their possession, specifically including:


All computers, including, but not limited to: desktop computers, laptop computers, and cell phones, now in your possession from which you receive, have received, or expect to receive electronic communications, including but not limited to: instant messages, chat communications, e-mails, and web log ("Blog") communications, not otherwise privileged during the period of 2003 through April 6, 2009.


All hard drives, or other electronic storage devices, including but not limited to: cell phones, jump drives, thumb drives, internal hard drives, and external hard drives, now in your possession from which you receive, had received, or expect to receive electronic communications, including but not limited to: instant messages, chat communications, e-mails, and web log ("Blog") communications, not otherwise privileged during the period of 2003 through April 6, 2009.[ 1 ]

The District Attorney moved to quash (void) the defendant's subpoenas as unreasonable and oppressive, according to the appeal. They argued that the demands amounted to a “fishing expedition.” The prosecution's motion is described as asserting that compliance with the subpoena would expose private and privileged information retained on the storage devices including business and tax records, personal medical information, and private correspondence involving the father's counseling work.

Defense argued that the District Attorney did not have standing, as a prosecutor in the case, to seek to quash the subpoenas.

Trial Court Judge Stephen Groome concluded that the District Attorney had sufficient interest in the case and collection of evidence in a criminal proceeding to file motions involving defense subpoenas in the matter. However, Groome decided to alter the subpoenas rather than quash them. Groome decided, according to the Supreme Court's narrative, that the victim's parents should allow the defendant's forensic experts to examine the electronic equipment at the residence of the parents and make copies of hard drives for the purpose of searching for and retrieving emails from the victim which might contain victim statements retracting her allegations against the defendant. The Supreme Court ultimately concluded that this ruling by the trial court judge effectively changed the subpoenas to a search warrant.

Chief Justice Mullarkey's written opinion also addresses the lack of factual basis for the defendant's subpoenas, pointing out that no evidence had been offered to support the belief that correspondence of the nature sought by defense actually exists. The opinion cites a four-part test relative to the issuance of pretrial subpoenas. Among other criteria, the issuing party must show that the application is made in good faith and is not intended as a general 'fishing expedition.'

“The true scope of information sought by the defendant has been a moving target,” the Supreme Court's opinion states. “Spykstra's March 24, 2009 subpoenas initially sought to inspect every electronic storage device possessed by B.G.'s parents that could have received electronic communications from B.G. from 2003 to April 6, 2009, a time period including future communications not yet written.”

After the district trial court issued its order, the written opinion explains, the parents did not comply and did not respond to calls from the defendant's computer forensic expert. The District Attorney subsequently filed the appeal and the trial court stayed execution of its order pending resolution from the Supreme Court. In agreeing to hear arguments in the case, the State Supreme Court says, “Should the parents be wrongfully compelled to produce protected information and to produce it in an impermissible manner, the harm would not be curable on appeal. ”

The Colorado Supreme Court cites two serious errors in the trial court's decision to enforce the orders:

The preceding review of the scope and procedure of Crim. P. 17(c), as well as the interests involved, illuminates the flaws in the trial court's order in this case. Two serious errors require us to conclude that the trial court abused its discretion in modifying and ordering enforcement of the defendant's subpoenas.

As an initial matter, the trial court's order improperly converted the subpoenas into the functional equivalent of search warrants … In creating this procedure, the trial court eliminated the very protections against unreasonable search and seizure that Crim. P. 17(c) provides, including the court's role in protecting the subpoenaed party from unreasonable or oppressive subpoenas...


The second serious error was the trial court's failure to require Spykstra to show a specific factual basis demonstrating a reasonable likelihood that the emails Spykstra sought existed on the computer and contained material evidence. Spykstra set forth no "factual predicate which would make it reasonably likely that the [computer] will bear such fruit and that the quest for its contents is not merely a desperate grasping at a straw." ...

Oral arguments by Deputy District Attorney O'Brien and Attorney Sean Paris were heard by the Colorado Supreme Court Justices on September 24, 2009. A recording of the arguments can be accessed by clicking on the case link 09SA91-People v. Spykstra on the Colorado Supreme Court's website. (Click Sep 09 tab)

O'Brien asked the court to “fashion a policy that will safeguard the privacy of witnesses, particularly the privacy of victims,” arguing that a level of Fourth Amendment Constitutional protections against unreasonable search and seizure should apply. She argued that some offering of proof should be required to justify a subpoena other than “the hope that possible impeachment material existed.” O'Brien continued, “In fact, it is uncontested that the defendant has no idea what, if anything, in the nature of exculpatory or admissible evidence exists.” The Justices commented that it appeared Judge Groome attempted to narrow the scope of the subpoena, but then broadened it again by ordering that defense's experts could access all of the electronic material in the victim's parents' home to extract what they thought was pertinent, or the judge would examine the material “in camera” or in his chambers. “It's an odd order,” one Justice is heard to comment.

Mr. Paris argued that the District Attorneys had no standing to argue for the privacy rights of the victim's parents, even though the District Attorney is the party who petitioned the lower court to quash the subpoenas. He argued that the District Attorney has suffered no damage and is not directly involved in a case involving the victim's parents. (The Supreme Court ultimately agreed with the lower court that the District Attorneys did have standing to bring the appeal.) Paris further argued that the defendant was faced with serious charges and should have a right to any exculpatory evidence that existed. The court asked Paris if he had any evidence at all that correspondence regarding a retraction by the victim existed. He said that there was nothing in particular that he could point to other than the credibility issues that exist because the victim's and the defendant's versions of events do not match.

The unanimous opinion of the State Supreme Court supported the Petitioner and directed the trial court to quash the subpoenas, stating “the trial court abused its discretion in ordering enforcement of the subpoenas.”

Deputy District Attorney O'Brien told the Park County Bulletin that she has been a prosecutor for 20 years, formerly employed for 17 years with the office of the Denver District Attorney before taking the position with the Eleventh Judicial District, Fairplay office. The DDA said that this was the first time she had argued an appellate case.

O'Brien declined to comment further, noting that a gag order on the criminal case is still in place.

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