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A Colorado Court of Appeals panel ordered a new trial for a man accused of sexually abusing a child, ruling 2-1 that an El Paso County prosecutor went too far in her attacks on the defense’s expert witness.

“Under these circumstances, we conclude that the prosecution’s repeated personal denigration of the defense expert so undermined the fundamental fairness of the trial as to cast serious doubt on the reliability of [the] conviction,” Judge John Daniel Dailey for the panel’s majority an in opinion released Aug. 6.

Gary Lynn Warmker allegedly assaulted  a relative when she was between four and seven years old. The girl disclosed the abuse  a decade later, resulting in prosecutors charging Warmker in 2016.

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At his trial, Warmker’s attorney argued that the victim’s statements had contradictions and inconsistencies — in part by drawing on a child psychologist who testified that the victim could have been susceptible to false memories. 

Prosecutors, by contrast, gave evidence of Warmker’s prior sexual misconduct, including claims of molestation by a different relative. A jury found him guilty and Warmker received an indeterminate prison sentence of 14 years to life.

The appeals panel found that a prosecutor went too far in trying to discredit the defense's expert witness, pointing to one string of comments that “greatly troubles us.”

The prosecutor in Warmker’s case, whom the opinion did not name, made repeated reference to how much she believed the defense's witness was getting paid to testify, saying he “is obviously affected. He’ll get paid $14,000 if he gets up and helps acquit” Warmker.

She further argued that the witness only spoke to his expertise “in the way that he needed to get paid to get the defendant out of trouble.”

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The appellate majority acknowledged that it is acceptable to point out possible grounds for bias, including financial interests. But the prosecutor went beyond that by linking the expert’s payment to an acquittal verdict and suggesting that her own expert was unpaid, and therefore more credible.

“All of this constituted (or rose to the level of) misconduct,” Dailey wrote.

 Doubts cast on the expert's credibility were significant and a possible distraction to the jury, the panel found.

Where the prosecution case was "not particularly strong," Warmker presented a plausible defense focused on the unreliability of the victim’s recollections,” Dailey added. 

Former Chief Judge Janice B. Davidson dissented. Davidson found sufficient evidence to support a guilty verdict, and believed it was a “fair request of the jury” to ask them to consider how a $14,000 payment might affect the expert.

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Lee Richards, a spokeswoman for the 4th Judicial District Attorney's Office, said the prosecutor in the case has since left the office.

"We understand the position of the majority. This case demonstrates that judicial minds can come to differing opinions," Richards said, adding that her office agreed with Davidson's dissent.

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