As announced to a packed courtroom this morning, 11th Judicial District Judge Brian Green denied the motions to dismiss both criminal charges filed by District Attorney Linda Stanley against Chaffee Childcare Initiative Executive Director Amy Lovato and The Schoolhouse Director Roberta Rodriguez. The judge set a jury trial for June 5-6.
“This is the perfect case for the jury to hear. The prosecution is in the best place to know what evidence there is, and in the best position to know whether they can prove beyond a reasonable doubt that the defendants were in a situation that posed a threat to life and health … the leaving of children unsupervised,” announced Green, as he denied the motion to dismiss count 2, child abuse charges against Lovato.
When the judge announced his decisions, there was a slight undercurrent in the courtroom audience, which largely appeared to consist of supporters of Lovato and Rodriguez. He responded firmly, twice saying he would brook no disturbances and expected the public to respect his courtroom. He did request that the prosecution prepare a “Bill of Particulars” specifying exactly what the theory of the prosecution’s case is, laid out in one record, rather than having to go through the entire charging document.
Jason Flores-Williams (representing Lovato) and Adam Tucker (representing Rodriguez) filed the motions to dismiss in February; stressing that the term of immediacy is being unconstitutionally applied and that there was insufficient evidence that it could be proved beyond a reasonable doubt.
Both women have been charged with second-degree misdemeanors in the uproar over incidents at The Schoolhouse in Poncha Springs, which was closed indefinitely on January 24. The school self-reported a five-year-old touching another, younger child, and an incident of a few minutes when the Schoolhouse fell below the children-to-caregiver ratio in a classroom, while attending to laundry from a naptime mat-wetting incident where the child needed to be cleaned up.
But this morning, Deputy District Attorney Joanne Morando’s case (focused on child abuse) had shifted.
While the prosecution had initially appeared focused on the behavior of a five-year-old boy in the care of The Schoolhouse who had on a few instances in a single week initiated “pants-pulling-down” of a classmate, the DA’s office announced that they apparently don’t dispute young children’s behavior.
Morando added that Colorado Rule 7-B allows them to amend their charging document at any time before the trial explaining, “They have conceded that the children were left unattended. By leaving them unattended under five years of age, knowing that events had proceeded in the past would be negligent; a gross deviation of the school that could pose an injury to their life or health. Whether any factual information excuses that conduct is for the jury to determine. The people’s position is that charge should not be dismissed.”
Williams objected saying, “the defense hasn’t conceded anything. Based on the pleadings and the question asked of the defense we are addressing the attendance.”
“So the people’s theory is it wasn’t the conduct, it was leaving the children unattended that threatened their safety…. it isn’t that we can get into whether [the word ‘immediate’] is vague?” clarified Green. “I want to get into whether or not the child abuse charge should be dismissed. It might have been the foreshadowing of leaving the children unattended that constitutes child abuse?”
This caused both Williams and Tucker to ask for a clear statement of what exactly are the charges of which their clients are being accused.
“I’m not seeing in the charging instrument where this is stated. We are now facing this issue of a moving goalpost – we cannot be figuring out in a court of law what our clients are charged with. At first, it was apparently the pulling down of the pants, and now that that might be constitutionally protected. So now the attendance piece is the focus?” asked Williams.
“I’m never going to waste court’s time with things that don’t have real merit – if attendance is their basis for a criminal case, show me again where attendance is specified within time – we’re talking about a few minutes we’re talking about a child going to the bathroom and needing to be cleaned up,” added Williams. “Where people are being tried where there is a good faith effort — the teachers who were there and felt they should go clean him off because he had peed himself – how do you make that criminal negligence? Is it a recognizable criminal act – you just took a kid to clean him up?”
Later in his response to the prosecution’s presentation, Williams added, “Again, wouldn’t we be asking the people in that box [jury] as to whether or not taking a kid to clean him off is a criminally negligent activity?” Is this what we do here in Chaffee County? Ultimately with regard to the attendance, we are asking this jury to make a decision that is ultimately a value judgment not enumerated in the law; there is no specified time limit to this. There was an issue with a kid, another kid pulls another kid’s pants down and that’s why we are here … We are still putting a question of law to the jury rather than a question of facts.”
Tucker, representing Rodriguez pointed out that his client wasn’t even in the classroom, wasn’t part of what was going on and there is no evidence that she knew. “I have no notice of what the conduct is as attributed to her.” He pointed out that the charges against both women were being ” flushed together to create a case.”
“Where are the reporting requirements that talk about the law? There is no evidence that Ms. Rodriguez was in the room, and the court is not in the position to assess the facts … I am not on notice as to what we did that is negligent specifically on this day because that is the charging document. I am not on notice to defend on something I have no information about.”
“Can the prosecution explain why she is charged with child abuse?” asked Green of Morando.
“There were four separate incidents – neither of them took any steps to modify the supervision,” alleged Morando. “That it occurred in a childcare setting constitutes child abuse.”
“So your theory is that there were incidents of which she was aware that the childcare facility didn’t report?” said Green.
“Between January 16 and January 20, the failure to report was occurring, the lack of supervision was occurring and no policies or procedures were put in place and the lack of adequate supervision,” responded Morando.
“So the lack of adequate supervision is the case,” said Green. “I am going to order the People to prepare a bill of account setting forth the theory of each charge so we can find it without having to go through the whole [charging] document,” concluded Green.
“The theory is the defendants failed to supervise the children, failed to report, failed to rectify the lack of supervision – I don’t have more specifics than that,” said Morando. “I agree that one toddler pulling down another one’s pants is not criminal conduct. I don’t think the bill of particulars is going to include anything else I haven’t stated.”
The prosecution had requested an unredacted copy of the incident report. The judge confirmed that while an unredacted copy would be made available to both defense attorneys and prosecution, it is still protected information that could not be released to the public.
The following timeline was agreed upon:
April 14 — Bill of Particulars due
3:00 p.m. May 2 — Status conference via Webex
7 days prior to trial — Jury Instructions prepared
June 5-6 — Jury Trial
The large crowd did not dissipate after the hearing ended. It gathered in the hallway of the Courthouse, then moved outside. Conversation was animated and hugs were exchanged.
“It’s going to hinge on the word “immediate,” said Tucker, speaking to AVV after the court dismissed. “The Court of Appeals has already ruled that the term “immediately” is constitutionally vague. And you are correct, this is about licensing and the manner in which state childcare licenses are administered. To shut down a childcare center the Attorney General would be involved, not criminal court.”
Editor’s note: The reference to childcare licensing was made in connection with an Ark Valley Voice March 29 article which covered the findings from an interview with staffers of the Colorado Department of Early Childhood.
I saw this quote from Nicholas Christakis, American physician and sociologist. Although he was referring to writers, his quote could just as easily be applied to members of our own community.
“It is no small thing to deprive an adult of a livelihood. To take someone’s job away. If you’re a writer or a reporter [or a childcare provider or a high school principal] and you’ve been run out of the profession, for example, that’s devastating. Your whole life has been devoted to this profession. And so not only do you lose your income, but you lose a lot of your identity. This is not a trivial sanction. Yes, we didn’t burn you at the stake. That’s true. But we did something very bad to you. We put a scarlet letter on you and we took away your job, and your friends were afraid to associate with you. These are devastating social sanctions, not to be trifled with”.
Anybody else ever heard of “jury nullification”? Judges and prosecutors hate this one trick!
This is absolutely wrong. Good luck having any childcare in this area after this obscene abuse of the system which is punishing these women for doing the right thing. The only child abuse here is what the cops did.
Good luck finding a jury willing to convict on these charges, and good luck to the District Attorney and Judge Green in the next election. If they hope to hold onto their offices, I have a feeling they are going to need all of the luck they can find, after this fiasco. I can’t imagine that anyone following this story would ever again vote for either one of those two people.
It is a shame that Lovato and Rodriguez are going to get ground up by the system over this nonsense, but maybe they’ll be able to sue the county for a large pile of money after they’re acquitted.