The Colorado Supreme Court has overturned a county court judge’s decision to punish the district attorney’s office for not following evidence rules and prohibit evidence not provided to the defense by deadline from being used for a preliminary hearing in a sexual assault case.

In a 5-2 decision handed down Monday, the state Supreme Court justices ruled County Court Judge Sean Murphy abused his discretion and didn’t adequately support his decision to prevent the prosecution from including evidence in the preliminary hearing for Ashton Whittington.

The ruling removes the pause that has been in place for the case since late March, when Whittington was supposed to have that preliminary hearing.

Whittington is accused of giving a 17-year-old girl alcohol at his own 18th birthday party.

The woman told law enforcement she was sexually assaulted by two others at this party at the former Ouray police chief’s home in 2023.

The decision to overturn the county court judge’s decision is significant not only in Whittington’s case, but also for the cases of his co-defendants, Gabriel Trujillo and Nathan Dieffenderffer, the former police chief’s stepson.

Whittington has been charged with a class 2 misdemeanor for allegedly providing alcohol to the underage woman, a class 4 felony for contributing to the delinquency of a minor and a class 3 felony sexual assault. At this point the prosecution has not produced any evidence suggesting Whittington actually sexually assaulted the woman, but his arrest affidavit indicates he was present when she said the others committed the crime.

The state Supreme Court’s ruling means the prosecution can use all the evidence it has disclosed to the defense in an upcoming preliminary hearing, which requires the prosecution to show the court it has enough evidence to move forward with a trial.

The state has rules governing how evidence should be disclosed in court – the Colorado Rules of Criminal Procedure. The rule in question here is referred to as “rule 16,” requiring the district attorney’s office to hand over evidence to the defense it planned to use within 21 days of filing charges against Whittington. In this case, that means everything should have been provided to the public defender’s office by Jan. 17.

While the prosecution gave some evidence to the defense on Dec. 27, 2023, shortly after Whittington’s arrest, it did not hand over the rest within the 21-day window required by the state rules.

Instead, there were four more sets of evidence handed over in February and March. The justices noted in their decision that some of that evidence was in the hands of the prosecution during the 21-day disclosure window and it was not handed over. The high court also noted some of the evidence had errors prohibiting access, including broken links.

The dispute over the evidence escalated in February, when Whittington’s attorneys asked for evidence including a Snapchat video recovered from his phone, which the prosecution claimed supported the charges in his case, according to court records. Whittington’s attorneys also asked for body-worn camera footage of the search of the former police chief’s home, the alleged crime scene.

Whittington’s attorneys asked for this evidence again after his preliminary hearing was postponed until March.

About 90 minutes before the rescheduled preliminary hearing was set to begin on March 13, the prosecution handed over 11 videos, including the requested bodycam footage and a video interview with one of the codefendants, according to court records. Then seven more videos were provided to the defense.

At this point, when the prosecution provided this fifth set of evidence long after the 21-day deadline had passed, Chief Public Defender Patrick Crane filed a motion to dismiss Whittington’s case or impose sanctions on the district attorney’s office, citing concerns about a pattern of behavior with the district attorney’s office breaking evidence disclosure rules. In his motion, he specifically referenced 37 prior discovery violations committed by the district attorney’s office.

Though Murphy said he didn’t think the late or missing evidence was a result of any bad intent, he imposed a sanction on the prosecution, ruling that any evidence that wasn’t provided in the original 21-day window couldn’t be used in the preliminary hearing.

The hearing continued with one witness called to the stand, and then Murphy postponed the rest of the hearing.

The district attorney appealed Murphy’s decision two days after he made the ruling.

The justices did not hear oral arguments in the case and issued the ruling Monday without warning. In their written ruling, they ruled Murphy’s decision conflicted with a trial court’s duty to avoid using sanctions that exclude evidence from cases, calling it a “drastic remedy that may affect the outcome of the trial, provide a windfall to the party against whom the evidence would have been offered, or otherwise hinder the search for the truth.”

It cited concerns that excluding evidence “may tend to cut against the primary purpose of the discovery rules – to reveal the truth.”

The justices also said Murphy himself did not establish there was a pattern of discovery violations in the district attorney’s office, despite Crane’s allegations.