An El Paso County prosecutor resorted to illegal retaliation when she pursued an investigation against a man who threatened to complain about her to the media, says a federal civil rights lawsuit filed Monday.
Mark Aaron Alba, 46, of Colorado Springs, spent nearly a year battling a felony count of attempting to influence a public official after telling prosecutor Sharon Flaherty in 2016 that he would expose her for "trying to convict an innocent man," Alba said in a complaint in U.S. District Court.
The charge - since dismissed and wiped from Alba's record - alleged that the statement constituted a threat against Flaherty.
Fourth Judicial District Judge Jann DuBois threw out the case at a January hearing, calling it a "sorry day when we can't exercise our First Amendment rights."
By then, Alba had spent five days in jail and 10 months worrying about the potential for up to six years in prison, his attorney said Monday.
"It is shocking that a D.A. could hear the statement, 'I'm going to tell the media,' and think it's anything other than core protected speech," said lawyer Adam Frank of Denver. "Any lawyer knows that. Any first-year law student knows that."
Also named as defendants are chief deputy investigator David Guest and District Attorney Dan May. Guest is accused of participating in an investigation initiated by Flaherty; May is accused of failing to properly discipline and train his employees. The action seeks a monetary award for Alba and corrective action by the District Attorney's Office, such as more training for line-level prosecutors.
District Attorney's spokeswoman Lee Richards said the office hasn't received the complaint and doesn't comment on pending litigation.
The case is the latest claim of unethical conduct by a local prosecutor.
Last month, the Colorado Court of Appeals overturned an African-American man's 2014 conviction for attempted rape after concluding that prosecutor Jennifer Darby "appealed to racial prejudice" in remarks that emphasized his skin color during a trial.
In a separate case, prosecutor Jakrapong Pattamasaevi resigned after a Colorado Springs police officer said on the stand that he felt pressured by Pattamasaevi to withhold his conclusions from a trial because they didn't jibe with a man's criminal charges.
Alba's remarks came during a February 2016 phone call with Flaherty.
At the time, Alba was representing himself on separate allegations that he had lodged a false report with police.
During the call, which Flaherty recorded without his knowledge, Alba said there was no evidence against him and gave the prosecutor an ultimatum: Either agree to dismiss his charges within 24 hours, or he would go to the news media and to U.S. Rep. Doug Lamborn to complain that prosecutors had charged an innocent man.
Told by Flaherty that his comments sounded like a threat, he said: "I'm not threatening you with violence or anything like that. . I have the right to get the public to know exactly what's going on with the dirty goings-on inside the city of Colorado Springs."
The felony charge was filed in court about a month later.
Before DuBois dismissed the count, a Pueblo prosecutor assigned to handle the case agreed that it "would fall under protected First Amendment speech." Alba was acquitted of the separate false reporting charge at an April trial, records show. That bolsters his claims that he was innocent all along, Frank said.
Flaherty went undisciplined by her supervisors after that incident and two other instances of prosecutorial misconduct, the lawsuit alleges.
Prosecutors are generally immune from civil liability for carrying out their duties, but the courts recognize exceptions to the rule, Frank said.
"Acting as complaining witness and initiating a criminal investigation - those are actions for which a prosecutor is not entitled to prosecutorial immunity," he said.