A judge on Thursday said he will rule later whether a former Monument man accused of killing his 7-year-old daughter and leaving her body in a crawlspace will walk on all charges because of evidence violations.
At issue is a July 8, 2010, interview El Paso County sheriff’s detectives conducted with first-degree murder suspect Hanif Sims.
The jailhouse interview in Henderson, Nev., where Sims and his girlfriend Monique Lynch were arrested after a manhunt, was apparently the source of sheriff’s detectives’ early claim that Sims’ daughter Genesis was alive and breathing shallowly on a bed for two days before she was buried in the crawlspace.
The problem is, Sims didn’t say it – and a recording that turned up a month before Sims’ Jan. 30 trial proves it.
The question is whether the mistake is severe enough to warrant a dismissal.
“It’s a dream cross-examination of a police detective,” 4th Judicial District Judge G. David Miller said Thursday – while mulling whether the mistake would be helpful or hurtful for Sims’ defense team.
Miller said he will issue a written decision, but didn’t provide a time line.
Sims and Lynch were arrested months after his daughter’s body was discovered by workmen digging in the crawl space of a Monument home where the family had lived. Lynch was sentenced in June to 27 years in prison for her role in the death.
Sims’ attorney Tracey Eubanks said Thursday the defense doesn’t want to cross-examine detectives on the issue – because she doesn’t want the jury to hear the allegation at all, fearing it will prejudice them against Sims.
“The Sheriff’s Office thinks that if they can get away with this, they can get away with anything,” Eubanks said in asking the judge to send a message and pursue some kind of penalties against authorities in the case.
The issue has been debated for months in Miller’s courtroom, leading him to toss out other admissions made during the July 8 interview and to instruct the El Paso County Sheriff’s Office to clean up some investigative practices.
Prosecutor Margaret Vellar argued the defense will benefit from the error, which she said didn’t rise to the level of a dismissal under state law.
“There is no evidence that anything was done willfully or intentionally,” she said.
Sims’ statements were consistent during several interviews, Vellar added, though she admitted authorities have no evidence of Sims confessing to depriving the girl of medical treatment for two days.
Ralph Losasso and Sgt. Robert Jaworski were the detectives who conducted the interview.
Losasso testified Thursday that he was short on sleep after working 24 hours straight when he misconstrued something Sims said and mistakenly believed it came from a different interview a day earlier.
Any false testimony in court stemmed from the initial error, Losasso said.
“It’s bits and pieces of recollection,” he said.
Jaworski added: “We made a mistake.”
The D.A.s office said it tracked down the interview on a Henderson, Nev., police detective’s voice recorder. The detective sent it and a CD to authorities one day before a discovery deadline.
In his comments at Thursday’s hearing, Miller singled out the sheriff’s office rather than prosecutor, who were praised for being diligent in searching for the material.
Neither deputy was disciplined or subject to an internal affairs investigation in relation to the Sims case, sheriff’s spokesman Sgt. Mike Schaller said Thursday.
Schaller defended the deputies in August, saying any flaws were “inconsequential” and didn’t affect pending investigations.
“The Sheriff’s Office seeks the truth even when facing sanction, as we believe the truth with lead to justice,” Schaller wrote last summer, referring to a separate case involving a request for sanctions over discovery issues.
Schaller added that defense attorneys were “seizing any opportunity to show flaws in the proceedings with the hope of bettering the position of their clients.”
Evidence disputes are roiling a number of high-profile cases at the El Paso County Combined Courts — all based on complaints by defense attorneys against the 4th Judicial District Attorney’s Office. The D.A.s office has denied it has a discovery problem.
—Contact Lance Benzel: 636-0366 Twitter @lancebenzelFacebook Gazette Lance Benzel