Law Firm Blog - Eytan Nielsen bears down on prosecution to dismiss felony charges against innocent client who was framed by Boulder Police Department | Eytan Nielsen
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Eytan Nielsen bears down on prosecution to dismiss felony charges against innocent client who was framed by Boulder Police Department

Coleman Stewart Police Shooting Case Dismissal “A Cover-up of a Cover-up”

By Michael Roberts
November 9, 2018

A judge has dismissed a case against 27-year-old Coleman Stewart in relation to a 2014 incident during which he was shot twice by members of the Boulder Police Department.

But while his attorney, Iris Eytan, is pleased that Stewart is no longer in legal jeopardy, she’s frustrated that the matter has been dropped prior to a hearing at which she planned to argue that the officers in the case violated her client’s constitutional rights and perjured themselves to justify their actions. Likewise, she’s offended that the Boulder County District Attorney’s Office is now repeating claims against Stewart that an expert analysis characterizes as impossible, as well as portraying the trigger-pulling officers — Nicholas Frankenreiter, Erin Starks and Jacob Vaporis — as victims rather than victimizers.

“Cole Stewart is the true victim in this case,” says Eytan, who filed a motion this week calling for the matter to be closed “in a proper manner that restores Cole’s rights.” Read it below.

In Eytan’s view, the DA’s “motion to dismiss is a cover-up of a cover-up.”

The Boulder DA’s office determined that the officers’ actions during the incident were justified. But last year, the Colorado Court of Appeals tossed Stewart’s conviction for menacing, a felony, and obstructing a peace officer, a misdemeanor, because of what the decision calls “a number of errors in the trial proceedings — two of them standing alone might serve as the basis for reversal, but collectively they clearly require that we reverse the conviction and remand for a new trial.”

After new proceedings were scheduled for January 2019, Eytan filed her own motion to dismiss the charges against Stewart on October 5. It’s accessible below, along with the motion and a review and analysis of the shooting by consulting criminologist John T. Wilson dated September 17. She believes the devastating nature of Wilson’s findings prompted the Boulder DA’s office to finally give up on prosecuting Stewart once and for all.

The DA’s office version of events is contradicted by “the truth and the science, which has never been refuted by any kind of measurement or data from the prosecution or law enforcement,” Eytan maintains. “And they’re saying what they’re saying now to cover up what actually happened, which the prosecution didn’t want revealed in open court. We had a hearing set for November 19 and 20 and had all the witnesses ready to be called. But the prosecution had been ordered to respond by October 30, and instead of responding in any kind of factual fashion, they asked for the case to be dismissed and then put out false information about it.”

A Boulder Daily Camera article about the latest developments summarizes the police version of what went down during the wee hours of May 30, 2014. Officers were called to Stewart’s apartment building, in Boulder’s University Hill neighborhood, after a cab driver said he hadn’t paid his fare. Shortly thereafter, Stewart, then 23, is said to have brandished a weapon, prompting Frankenreiter, Vaporis and Starks to open fire. Only after Stewart had been hit twice, in his arm and knee, did they discover that the weapon in question was a BB gun.

The way Eytan’s motion to dismiss tells the tale couldn’t be more different. The document maintains that when Stewart didn’t immediately hand over his fare, which came to a grand total of $4.85, the cabbie “drove crazily away from Cole’s apartment after refusing to let him out; with tires screeching, horn honking and passenger door open, he made a hard right turn onto 13th Street and stopped the wrong way in front of a bank ATM near the University Hill police annex.” At that point, Stewart jumped out of the cab and ran in part because he feared the driver was kidnapping him. The motion says the cabbie was worried about that, too, but an officer reassured him that he was “good.”

Shortly thereafter, the motion goes on, officers “outrageously violated the Fourth Amendment…by hopping Cole’s six-foot privacy fence and appearing with guns drawn in his patio curtilage. From this unlawful perch, officers fired a volley of ten gunshots, eight of which made it into Cole’s apartment and two of which struck Cole. Cole laid inside for two hours while a Bearcat demolished the privacy fence and the front door until the officers dragged him outside bloodied and unconscious of what had happened.”

Regarding the BB gun, Eytan says it was lying on a windowsill and admits that Stewart may have grabbed it out of fright at some point. But officers Frankenreiter, Vaporis and Starks, joined at the scene by fellow Boulder cops Andrew Kirshbaum and Ronald Perea, all maintained that he had actually aimed the weapon in a threatening fashion. An excerpt from the motion:

According to Frankenreiter: “I see him raise his hand up with a gun and put it to the window of the door…. [H]e stuck the gun up to…the blinds of that window…like he was getting ready to shoot it is the best way to describe it….” According to Starks: “I see a gun pointed at me [through ‘blinds on the door’] and “I’m right in front of the gun…. And as I moved to the right the suspect holding the gun moves the gun directly at me. I thought I was going to get shot there. And as I’m moving to the right there, that’s where I start to fire….” According to Vaporis: “I saw the blinds just pop open…and then I saw the muzzle of a gun…. I was looking straight down the barrel.”

That sounds terrifying — but Eytan says Boulder authorities never conducted a detailed crime-scene analysis to confirm these accounts: “No investigation was done other than interviewing the officers, and then it was shoved under the rug.”

Stewart’s initial defense team failed to conduct such an inquiry, either. But over the course of eighteen months or so, Eytan notes, criminologist Wilson examined police reports and department measurements and visited the scene on three different occasions in order to complete a reconstruction of events.

Wilson found that “two of the officers could not even see into the house from the angle they were at,” she says, “and if Cole had actually been at the door with the BB gun, he would have shot him through the torso and he would be dead.”

Instead, she goes on, Stewart was “hit by Officer Vaporis in the back of the arm, four and a half feet from the front door, with his back turned to the door. And then he was shot by Officer Starks in his right knee, about nine to ten feet from the front door, in a completely different room.”

These factors and plenty of others lead Eytan to conclude that the officers’ assertions about seeing Stewart brandishing a gun by the door’s window qualify as perjury intended to distract from incompetence that easily could have proven fatal. “Officers Frankenreiter and Vaporis had been on the force less than a year — they were roughly the same age as Cole — and they clearly didn’t know how to deal with this situation properly. Here you had someone who allegedly ran from a four-dollar cab fare, and you end up with five officers with their firearms out shooting blindly into a house with a young kid inside.”

This argument wasn’t made in court because prosecutors raised the white flag — not that the DA’s office put it that way. The Daily Camera quotes language from the motion suggesting that a new trial to prove that Stewart was guilty as originally charged would be “unnecessarily cumulative… . The victims [meaning the officers] understand that the defendant has attempted to paint them in the worst possible light, playing on popular themes and fears relating to law enforcement,” but they “maintain they wish to move beyond this incident and not be forced to reopen those traumatic memories in step-by-step detail once again.”

The DA’s office document adds: “The victims agree that a retrial of the case would constitute a pyrrhic victory at best, as the defendant has already completed almost the totality of the sentence imposed.”

Indeed, Stewart remains on probation; he had been ordered to undergo four years of supervision following a 45-day stint in jail. Because prosecutors asked for the case to be dismissed, Eytan says Boulder County is now on the hook for all of the probationary costs Stewart’s accrued during that period, as well as approximately $25,000 in damages to his apartment and the fence from the Bearcat and the gunshots, which he’d been forced to pay. She expects that another hearing will have to be scheduled to arrange for him to be reimbursed.

Stewart, for his part, is now living in a different state. “He’s married, he has a child, and he’s a fully employed, upstanding citizen,” Eytan divulges. “But that’s in spite of what happened to him, which will haunt him every single day for the rest of his life. He has post-traumatic stress, and he still suffers the pain from his injuries to his knee and his elbow.”

A civil suit on the original incident can’t happen at this point, since the statute of limitations has already expired. But there are more chances for the facts to be heard in court. The Stewart shooting is cited in a lawsuit filed last year by Glen Forgy, father of Sam Forgy, who was killed by Boulder police officers in 2015. That claim also cites two other fatal police encounters in a section labeled “Boulder’s Custom and Practice of Excessive Force”: the 2013 case involving Michael Habay, who was fatally shot amid a mental health crisis, and the killing of Bryson Fischer near Boulder Creek on a Sunday afternoon in May 2016.

As Eytan sees it, the shooting of Stewart “exemplifies the Boulder police practice of using excessive force.”

And then there’s the aforementioned motion, whose introduction begins with a blunt series of statements: “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…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 rights.”

The document concludes: “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 case.”

To read the full article, click here.

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