Trial Explodes After Detective Caught Lying...TWICE

Added: 2026-05-12

[00:00:00]I saw the email where it was a match. My first knee-jerk response was like, "Oh my god."

[00:00:05]>> So, testifying under oath today, you believe they found his DNA?

[00:00:09]>> Yes.

[00:00:09]>> What did that report actually say? It said that there was a that there's moderate support for inclusion. You don't tell her anything about that, right?

[00:00:18]>> Uh, not in the email.

[00:00:20]>> Before this detective lied to the court, he lied to the victim. And that lie helped build this entire case. The victim had uncertainty about who assaulted her. When the detective emailed her and told her the DNA matched Frank's, that uncertainty vanished. The only problem is that's not what the lab report said. They said that DNA profile matches [music] one in every 2,000 men.

[00:00:41]In the Denver metro alone, that's 1500 people. There's a ticking time bomb the lawyers haven't really touched yet, but they will. It was the victim's own bombshell testimony that started a chain reaction, which brought the detective into court to answer and crash the trial.

[00:00:56]What's nerds? Good morning, detective.

[00:00:59]Would you step up there for me and if you could raise your right hand? Do you solemnly swear or affirm under penalty of perjury that the testimony you're about to give will be the truth, the whole truth, and nothing but the truth?

[00:01:11]>> I do.

[00:01:12]>> Thank you, sir. Go ahead and have a seat.

[00:01:13]>> My name is Kyle Harmon. K Y L E H A R M O N.

[00:01:18]>> Mr. Santos.

[00:01:19]>> Thank you, your honor. Good morning.

[00:01:21]Good morning. Um, Detective Harmon, can you uh tell the jury how you're currently employed? currently deployed with the Denver Police Department. Okay.

[00:01:29]And are you with a specific unit at the Denver Police Department? I am with the sex crimes unit. Right. And what is your role within the sex crimes unit? I'm a detective. How long have you been a detective with the sex crimes unit? Um, a little over four years now. All right.

[00:01:44]Crystal Miss Douglas um walked into the district 2 substation um and made a a counter report with the officer there.

[00:01:52]that officer completed a a report and which was sent to my unit. Um and then as I said um our supervisors review all of those reports and then that particular case was assigned to me.

[00:02:04]>> So after that interview um did you become aware of any kind of potential forensic evidence?

[00:02:10]>> Yes, I did.

[00:02:11]>> What was that? Um the victim had gone to uh Denver Health Medical Center and completed a Sane kit. After um speaking to um Crystal, after sending the same kit uh for labs, um you actually had uh Crystal come into the police department.

[00:02:30]Correct.

[00:02:31]>> Correct.

[00:02:31]>> All right. After that interview, did you speak to anybody else that potentially was an outcry witness to Crystal?

[00:02:37]>> I did.

[00:02:38]>> Who was that?

[00:02:39]>> Um I believe her name was Moren Gonzalez. Okay. And that was September 4th. So you contact um this individual based on the interview that you had with Crystal. Correct.

[00:02:49]>> Correct. Um and after speaking um to Marine Gonzalez um you set up a time for the victim to complete a pre-text phone call. Correct.

[00:03:00]>> That's correct.

[00:03:00]>> All right. And this pretext phone call took place on September 30th.

[00:03:04]>> Correct. All right. Can you describe what the purpose of a pre-text call is and kind of how that works?

[00:03:09]>> Sure. Um, a pretext phone call is a um a basically a controlled uh conversation between typically the victim and the suspect. The victim uh calls the suspect um in an effort uh to see if we can gather any information um in a conversation specifically between uh the victim and the suspect. Um suspect doesn't know uh that I'm there or that I'm listening. Um and it gives us the opportunity to see um if there's any kind of uh admission and and so a pretext phone call, this is not kind of like a novel thing, right? This thing happens normally in or happens in investigations. Is that fair?

[00:03:53]>> That's correct.

[00:03:54]>> All right. Miss Nicholas basically confronted Mr. Ortiz about uh what happened and what she recalled um having happened. Um [clears throat] and as she asked Mr. Ortiz whether or not he had um he emphatically denied uh any of that behavior. So, the preliminary round of um of DNA results indicated that um [snorts] that male DNA uh had been uh located on some uh of the swabs uh taken during Miss uh Nicholas's same kit. Um, so at that point, um, in order to determine, um, [clears throat] whose DNA that was, I would need, uh, a sample from Mr. Ortiz in order to compare, uh, that to the male DNA profile that was located.

[00:04:47]>> Okay. And so, what did you do in order to obtain that sample?

[00:04:52]>> I called Mr. Ortiz and asked him if he was willing to come in and speak with me and provide one.

[00:04:57]Ultimately though, you followed up that phone call regardless with a search warrant. Correct. That's correct. Okay.

[00:05:05]Um and that search warrant was for DNA swabs of Miss Ortiz.

[00:05:10]>> That's correct. All right. Did you get those?

[00:05:13]>> Yes, I did.

[00:05:14]>> Um they were submitted to our property bureau. Um and then I submitted those uh back to the laboratory for further testing.

[00:05:22]>> And then November 4th is when you receive all these labs back, correct?

[00:05:25]>> Correct. All right. [snorts] And so I just want to kind of recap the timing here. So this happens August 5th or August between the August 4th and 5th of 2023.

[00:05:37]>> Correct.

[00:05:38]>> You get assigned August 7th.

[00:05:40]>> Correct.

[00:05:41]>> By the time all the lab testing and all the other stuff is done, it is November of 2024, the next year. Correct.

[00:05:48]>> That's correct.

[00:05:48]>> All right. May 15th, 2024, you got the DNA lab results back. Correct.

[00:05:53]>> Correct. You reviewed the results that day. Correct. Uh, correct.

[00:05:58]Did you ever call and confront Miss Nichols about the DNA results and give her an option to explain or change her story?

[00:06:06]No. [snorts] Do you know if Miss Nichols, based on your investigation, ever knows what the lab results are?

[00:06:14]Uh, [clears throat] I believe I spoke with her [snorts] um and told her a general um general idea of what of what the lab results were. [snorts] >> At one point you suggested you had a fear that it could be somebody else who broke into the house. Correct. As I was accepting the reality of the assault, that was likely one of the train of thoughts that came before the actualization that the person assaulting me was Frank. You you had a lot of train of thoughts you you talked about. You said this can't be real. It has to be somebody else who broke into the house.

[00:06:54]Correct. You said am I dreaming? Is this a dream? It was a lot of denial. Do I wake up? Do I catch him? Do I confront him? Do I scream? If this is somebody that I knew, then clearly I don't know them. And if it's somebody I don't know, then I don't know how they're going to take it. Like once I put together that was him, I guess I don't know he was further capable. And that scared me into not confronting him. Those are the thoughts that went through your mind.

[00:07:18]Correct.

[00:07:20]>> Correct.

[00:07:21]>> And there may even have been sex assaults where he came in and you didn't hear the creek. Correct.

[00:07:27]>> It could have. I was not conscious at the time, so I cannot state whether it did or did not happen.

[00:07:32]>> You also talked earlier a minute ago about [clears throat] the DNA. Did Did you ever get a call from Detective Harmon to talk about what the DNA found or didn't find?

[00:07:44]>> There was email uh correspondence between Detective Harmon and myself.

[00:07:49]>> Really? How many email communications were there on this?

[00:07:52]>> Between 10. No, around 10. I again those emails I have saved so the actual images of them would be more accurate and I'm happy to provide them.

[00:08:06]>> Did anybody ever ask you to provide them?

[00:08:08]>> I don't recall. I guess not.

[00:08:10]>> Okay. To the best of your knowledge, you've never given them to anybody other than Detective Harmon. Correct.

[00:08:15]>> Well, it was Detective Harmon I was corresponding to. And I would also board these or I would tell Meen to keep her updated with what was happening.

[00:08:29]>> Um, may we approach one?

[00:08:33]>> You're saying that all the communication you had with Detective Harmon as it relates to what was found in the DNA or not found or who was found is in those bless you is in those emails. I recall the email of there was a match for Frank's DNA and the evidence in the same kit, the one prior to that was male DNA was found. I asked, "What does that mean?" I saw the email where it was a match and my first knee-jerk response was like, "Oh my god, it's not for nothing that I have something." And then within that because with all this time even I know even though I know I experienced the assault I had such a wish and desire that it didn't happen that it didn't uproot my life. After the joy, it turned to a different emotion because it confirmed to me that it did happen and it wasn't something that I dreamed like this is the reality. There is confirmed >> so >> objective evidence. So, testifying under oath today, you believe based on your phone calls and emails with Detective Harmon, they found his DNA?

[00:10:06]>> Yes.

[00:10:07]>> Did he tell you about the other person's DNA?

[00:10:10]>> I I know that there was male DNA found and then the email stating that the there has been a match with Frank. I don't know about any other DNA.

[00:10:24]>> Your honor, after our bench conference, I sent an email to Detective Harmon. Um I indicated a little ham-handedly that um there were referenced I used the term a bunch of emails um between the two of them. the court has ordered us to reach out, have you provide those emails ASAP.

[00:10:43]He indicated and I have forwarded this email to defense, but essentially he indicates that he doesn't have a recollection um of emails. He doesn't remember a bunch of emails back and forth. He actually has doesn't have recollection of any, but she may have reached out via email for updates. Any conversation we had that addressed the facts of the case or information that went beyond providing whether there was an update in the case or not was completed over the phone and he believes he recorded all those. He does not presently have any emails to or from Crystal in his email at this time. We don't have them. That's a discovery violation. They've been talking about the case and turns out there was a lot more that they were talking about including DNA, including it's a match to Frank. Oh my gosh, it wasn't just a dream. So, the reason she believes, and in full disclosure, she believes it's a match for Frank. There's nobody else's DNA. I was proven right based upon phone calls and emails with this detective.

[00:11:46]We know there's a DNA issue and the court has the DNA reports. We know that's just simply not true. And I apologize, but that goes beyond gee, I don't understand DNA as a detective.

[00:11:58]He's lying to her intentionally. And it's in either a phone call that he didn't record or it's in an email that she claims she has that he's quote denying to the best of his knowledge at this time of having those emails. We have a discovery violation because we have communications about the DNA including false representations by the detective. One of them's lying. Either she had multiple phone calls as she's testified and multiple emails whether it's on a single string or not and he's lying or she's just making it up. She never had these emails and she's never had these multiple phone calls and the detectives telling the truth. But one of them needs to be impeached. So I know there's a discovery violation and I know someone's not telling the truth. I don't know who it is, but we have a problem.

[00:13:02]So your honor, as I said, I had an investigator come over. The investigator um myself Wharton, both defense council went in and reviewed. There were in fact emails between Detective Harmon and Christelle. Um I think that [clears throat] there are a couple of emails that are of specific concern to defense and which I understand it would have been something used to cross-examination with because he's not exactly being honest with her. Uh and I think that is a problem.

[00:13:40]All right, we're back on the record in 24 CR6949 people versus Frank Ortiz. All council are present. Mr. Ortiz is present. The jury has been excused for the evening.

[00:13:52]Um, while we were off record, I was provided with a copy of the email referenced previously from Mr. Santos and the detective's response. And then I believe what appears to be four sets of email strings >> [clears throat] >> um between Miss Nicholas and detective. Uh what is really important here is to bring up that this is not a situation where it is some technological failure of the detective where he had tried to send these documents to the prosecution and then through nobody's actual willful conduct did they then become made aware to the defense because that would be a threshold discovery violation. Wouldn't be anyone's fault and it'd still be a discovery violation. What's really important here is that the moment that the prosecution asked for them, they reached out indicating to the detective, hey, these emails, a bunch of them are being mentioned by somebody on the stand. Do you have them? And very immediately, this detective responded.

[00:15:07]I do not recall any emails.

[00:15:10]I don't think I did. And I don't have any at this time. This response by Detective Harmon, the idea that he was so confident, so quick, and that he had searched for them to not find a single thing and then to say that to the prosecution indicates directly to the prosecution that whether he did that search and didn't want to share it, whether he just didn't do that search at all, uh, is a serious issue because had this witness not have them? Did she if she had not kept them or if she had hidden this then this would be the type of conduct we would have never learned of. He had these communications for years and I don't know the reason he did it and I don't think it particularly matters. He was saying that he didn't and I just don't think there's an excuse for it. is pervasive and makes me question how often that type of thing has happened and it's the type of discovery violation that warrants a motion to dismiss.

[00:16:15]>> Um, so I I guess I would ask the court for permission for leave so that I could do a little bit additional research before I respond to the motion to dismiss.

[00:16:27]>> I'm wondering um it makes sense to try and get Detective Armen here tomorrow morning.

[00:16:34]>> I told Detective Harmon to be here at 8:30. Okay.

[00:16:37]>> So, he will be here at 8:30.

[00:16:41]>> Hello, detective.

[00:16:42]>> Good morning.

[00:16:42]>> I want to just start by asking a couple questions about some things that were sent to you and your responses from yesterday. Okay.

[00:16:49]>> Sure. So, uh do you recall being sent an email yesterday regarding emails from between you and Mr. Nicholas?

[00:16:55]>> Yes. And do you recall uh that being sent by the district attorney's office?

[00:17:01]>> Yes.

[00:17:02]>> And that it was a reference to an order from the court. Correct.

[00:17:06]>> Correct. So, um, that was around I believe we're looking at that is 2:26 p.m. Does that sound about right? That sounds correct. Okay. So, when did you get that? What was your immediate followup to that? What did you do?

[00:17:27]Um, I I think I responded quickly with my recollection that I I didn't recall there being >> [snorts] >> uh many if any emails to my recollection at the time and that I didn't believe um or that I no longer had them um based on our retention period um for our email.

[00:17:47]Okay. So, I'm going to kind of slow that down a little bit. So, you responded back at 2:31 p.m., right? Sounds correct. And if [clears throat] at any point you don't recall what was exactly said, just let me know. I have your emails here. I can refresh your memory.

[00:18:01]All right, perfect. So, what actions did you do before responding when you received this email to go find them? I don't recall being asked to go find them.

[00:18:16]So, you just testified under oath that you didn't believe that you were asked to go look for them and provide them.

[00:18:26]it as the email says to to provide those emails. My understanding was to was that to provide them and I responded that I no longer had them. So you just testified under oath before I had I refreshed your memory that you had said something about a server issue.

[00:18:47]Did you say that in that immediate email response at 2:31 p.m.? the the reasoning behind No, I didn't put the reasoning behind my answer in the email. You don't mention anything about a server at 2:31 p.m. Correct? No. When you sent that email back, you simply state you don't think you sent any. Uh, no. I I think what I sent back was I don't recall there being emails between the two of us or I don't recall there being a bunch of emails between the two of us and that I I did not have the emails. I believe that's what I sent back.

[00:19:25]>> So you do not have the emails. That's that's kind of how you ended it right in that email. That's correct to you.

[00:19:33]Does that indicate that you would have looked uh no to you? I do not have any emails from slash to Cressell in my email at this time. So you mentioned just there a minute ago that uh you know later on in the day you really wanted to make sure right make sure they weren't there correct but you didn't care about that when you responded at 2:31 p.m. yesterday I wouldn't agree with that characterization.

[00:20:08]Okay.

[00:20:10]At some point, you check, right?

[00:20:13]>> Correct. When was that?

[00:20:16]>> Um, I don't recall a specific time, but it was later in the afternoon. But after 4:00 or after 5?

[00:20:24]Um, I I don't recall. I I would have to look. How soon before you sent the email to the DA's office indicating you found them? How soon before that email did you look and find them?

[00:20:38]Um, it was uh quite quite quick. Like I said, I I don't recall. So, you your testimony is that you found them, you knew there was a court order to provide them, and you let us proceed for 2 and 1/2 hours.

[00:20:55]Correct. Okay. And in fact, that would mean that when you responded at 4:06 p.m., okay, I can be there at 8:30 if needed. you had already found these emails.

[00:21:10]>> I believe that's correct. And I I I don't want to belabor this point any further, but you had multiple emails and a phone call after saying you did not have these emails and you made no effort to correct it to correct what you had told them until 5:40 p.m.

[00:21:35]That was my understanding of when it could be corrected. What does I I'm sorry. What do you mean? That was your understanding of when it could be corrected. So, like I said, when I sent the email in response to the the email asking for the emails, the email was sent with some some urgency. And so, I responded as quickly as I could with my understanding at the time. And when I later found out that that was incorrect and I wanted to make sure that I corrected myself at the earliest convenience, um I I sent that over to the district attorney's office.

[00:22:15]Final one on this issue at least it your earliest convenience. You sent four other emails and a phone call, right?

[00:22:23]Correct. And you didn't share it then?

[00:22:26]>> Correct. your original statement that you don't even recall emailing Miss Nicholas at all.

[00:22:32]>> Correct. It's your testimony under oath that you don't remember emailing Miss Nicholas at all. That was my recollection at the time. Yeah.

[00:22:41]>> You've now looked at to your email, >> correct? How many emails was it? More than 10, >> probably. Would you like to review it?

[00:22:51]>> Like I said, I didn't count them yesterday, but sure.

[00:22:54]>> Okay. I mean, I you did you didn't review them, so you don't even know what's in these emails? I I briefly looked over them, but I didn't count every single email.

[00:23:05]Did you look to see what the content of them was?

[00:23:09]>> Yes. Okay. So, you looked enough to know that it's more than 10, right? Correct.

[00:23:14]Okay. And that these aren't all just a update email. They are not stock emails, all of them, right?

[00:23:25]Um I I mean we don't have stock emails but correct.

[00:23:31]>> So they also occur over the course of about a year and a half, right?

[00:23:38]Uh over over the course of the investigation. Correct.

[00:23:40]>> So I'm having you look at uh page six of court exhibit 4. At the bottom of page six, do you see what you had sent to Miss Nicholas?

[00:23:54]>> Yes.

[00:23:55]>> This was when or around when you had received the initial DNA report based on the same kit and the underwear that was collected. Right.

[00:24:06]>> That's correct.

[00:24:07]>> Because at this time you did not have a warrant for Mr. Ortiz's DNA.

[00:24:11]>> That's correct. So what do you inform her?

[00:24:16]Um, I said, "Thanks for following up. Do you mind if I read it directly?" I I'm fine with that. Um, I do have some positive updates for you. I've received the DNA lab report, and it indicates that male DNA was located on the inside of the underwear you submitted for testing. Uh, samples from your same kit were listed as uh, quote inconclusive, but additional testing can be completed once I get a DNA sample from Mr. Ortiz.

[00:24:45]Having looked at that now, having reviewed it, the last sentence that you mention is, "If you want to go over these results in detail, give me a call." Correct. Did you have that call?

[00:24:57]Uh, I don't recall. I would have to refer to what's invidence.com.

[00:25:02]So, did you ever have a phone call with Miss Nicholas regarding the DNA?

[00:25:08]>> Uh, I'm not sure. Do you remember testifying yesterday morning about how you believe you did informer over phone call?

[00:25:16]>> Um, correct.

[00:25:21]>> Okay. So, again, you're under oath and that was just yesterday. Did you have that phone call or not?

[00:25:29]So, like I said, I believe that I had informed her of the DNA results and believing that not recalling any emails, I believe they would have been over the phone. Obviously, [snorts] it was over email.

[00:25:48]Do you remember having that call? No.

[00:25:51]Okay. And yesterday you still testified under oath that you did, but eventually in [clears throat] November of 2024, you do receive some sort of lab results, DNA results, right?

[00:26:11]I believe so. On that page nine of court exhibit 6, uh what's the the date that the email was sent? I think the date you may have to go to 8 to see it. Uh, it appears to be November 7th, 2024, if I'm reading that correctly.

[00:26:26]>> Okay. And specifically, you state that you received the DNA report and that it there was male specific DNA testing for Frank's DNA profile. That fair? That's correct. Okay. And you then say without belaboring the scientific jargon used by the labs, Frank's DNA was found on your external genitalia swabs.

[00:26:52]Correct.

[00:26:55]In that court exhibit 4 email that was from May of 2024.

[00:27:00]You also referenced male DNA found on her underwear, right? Uh, correct. But you don't reference it here. Correct.

[00:27:09]But you did review that report, right?

[00:27:12]Uh, yes, I believe we did. And in that report, there was male DNA as you had told her in May of 2024, >> correct? But that now in November of 2024, you found out that Mr. Ortiz was excluded uh from the samples from her underwear.

[00:27:29]Correct.

[00:27:29]>> And you did not inform her of that.

[00:27:32]>> No.

[00:27:34]Now, you also say that Frank's DNA was found.

[00:27:40]Correct. You've been doing this a while, right? Correct. What did that report actually say?

[00:27:47]It uh said that there was a that there's moderate support for inclusion, which is a ratio term that the lab utilizes.

[00:27:56]>> Good memory. Did you review that before today?

[00:28:00]>> Uh in preparation for yesterday. Yeah.

[00:28:03]Okay. So, it was in preparation for yesterday. Correct. All right. And so, moderate support for inclusion, right?

[00:28:11]Correct.

[00:28:13]You don't tell her anything about that, right? Uh, not in the email. Maybe on the phone. Uh, no. I apologize. That was again, if you have any questions, feel free to give me a call. I can certainly expand on that.

[00:28:27]>> Do you remember if there was a call?

[00:28:29]>> Uh, no, I don't believe there was. Okay.

[00:28:33]Uh, so did you ever inform her of the difference between moderate support and the finding of DNA?

[00:28:42]>> No.

[00:28:44]>> Again, this you've been in this division specifically, you understand that there's a sometimes misunderstanding of DNA that the lay person has, right?

[00:28:54]>> Correct.

[00:28:55]>> But you have a much better understanding, don't you?

[00:28:58]>> Correct. And you know that when you say somebody's DNA was found there, that's not what the lab report said.

[00:29:06]Um, like I said, there the lab uses a ratio verbiage and essentially uh and like I said, not not a forensic scientist, but a moderate support for inclusion um would indicate that his uh DNA uh matched the uh profile that they found with a moderate support for inclusion.

[00:29:33]>> Okay. And you keep using the word match, but are you again I know you're not an expert in this. Again the my my words not not the labs um but u my understanding from my training with the lab is that um when they are able to um overlay DNA profiles and find commonalities between DNA profiles.

[00:30:02]Again, in in general general verbiage, a a match. They provide a ratio. The male DNA that was found in her underwear that wasn't Mr. Ortiz.

[00:30:14]>> How did you react when you found out it wasn't Mr. Ortiz?

[00:30:17]>> I object to relevance at this point.

[00:30:21]>> What's your response?

[00:30:22]>> Your honor, I believe this is incredibly relevant. This is the type of information that was being shared to the name victim that gave her the impression that there was nothing else going uh nothing else besides a match that was in there. This is something that he had originally told about male DNA being found in the underwear and then specifically leaves out the exclusion when responding later giving her the impression. No, I know that what but what's the response to the the relevance as to what the discovery violation or >> Well, I think this is uh into the discovery violation and the violation of the court's order, your honor. U seems like there might have been in our opinion I think there's an argument there's a reason that initially these weren't looked for or provided.

[00:31:11]>> Okay. I think >> it's relevant to that.

[00:31:13]>> Okay.

[00:31:15]So when you found out that that Miss Ortiz was excluded from that DNA on the underwear, did you tell anybody about that in this case?

[00:31:34]>> No. Any witness?

[00:31:36]>> No. [clears throat] Did you ever think it was relevant to your investigation or anything that you communicated with her to determine where or whom that match would have been for?

[00:31:53]To my recollection.

[00:31:55]Um, and I think this may have occurred during our uh inerson interview.

[00:32:05]And again, I would have to look at the interview again, but this is my recollection. Um, was was that I had asked her if there were any other uh men who may have uh touched her clothing, anything like that, anything that she had knowledge of um to potentially address that issue.

[00:32:29]And my recollection of her answer to that was that she did not have any knowledge of any of anybody else as to why that that would be there. Um so when when that lab report came back, my understanding was already that she didn't know why there would be a different profile there if there was.

[00:32:51]You very quickly after that provided the case to the district attorney's office, right? Correct. Was it the day you sent that email that's on page nine of courts exhibit 6 that you provided the information to the DA's office?

[00:33:14]Um, I would have to look at my supplemental of what day that was.

[00:33:21]Is it fair to say that you send an email to her about what charges they're likely to go forward with in courts exhibit six?

[00:33:43]Um [clears throat] no. So th this email indicate I'm sorry on page nine this email indicates that I had previously sent uh the case to the district attorney's office and they had already tenatively accepted the case uh for those three counts. Okay.

[00:34:03]So at that time you believed that the DA's office was going to accept this case. Uh they had already provided a a tenative acceptance. Correct.

[00:34:17]So you were sending that email knowing that correct >> and yet you didn't provide any of these emails to them.

[00:34:25]>> Correct.

[00:34:26]>> I have nothing further this time, your honor.

[00:34:28]>> Okay. Thank you, detective.

[00:34:30]>> Thank you, honor.

[00:34:39]>> Any additional witnesses?

[00:34:42]>> Not for defense, your honor.

[00:34:45]any by the people.

[00:34:47]>> No >> argument.

[00:34:53]>> These are the blatant intentional misrepresentations that only become something we can even argue when somebody gets caught red-handed with them. And despite the fact that he got caught in this situation, it appears he doubled down to make additional misrepresentations and then he got on the stand here today and he attempted to do it again.

[00:35:22]I don't think there was there's any reason to believe that he his testimony about the order in which he received these is honestly truthful, your honor, because he's still trying to say that he [clears throat] misunderstood whether there was a court order. He's still testifying under oath that in his original response at 2:31 p.m. that he meant to indicate that there was this belief of this server retention issue.

[00:35:59]His words under oath do not match those that are sent in this email. They're not close and they cannot coexist.

[00:36:08]The issue before me is whether there is a rule 16 violation and if there is a rule 16 violation, what an appropriate remedy would be. When I was looking at the cases that were given to me by the parties yesterday, the circumstance here are statements made by a witness in this case, Miss Nicholas, to and from another witness in this case, Detective Harmon. These are statements between witnesses.

[00:36:41]They are written statements. But I think and everyone seems to agree. I think everyone agrees really the concerning part is that the detective when he gets the results and notifies her that the results have been received in both the circumstances, he then conveys to her his interpretation I suppose of the DNA results, the analysis and the results.

[00:37:09]in [clears throat] the first email that was just the development of the profile or the existence of male DNA regarding the swabs taken during the sane exam.

[00:37:21]Again, not fully articulating the results. Um, but advises Miss Nicholas that partially what they are, at least partially what his interpretation of them are. And then after he gets the results from the comparison analysis really in many ways misleads her as to the nature of those results. He specifically excluded the fact that Mr. Ortiz was excluded as a contributor in the very sample which he had previously advised her had been tested. but instead misstates and misleads Miss Nicholas by asserting that they are in effect a match to Mr. or Mr. Ortiz. A rudimentary reading of the DNA analysis as to the general genital swabs would lead no one to believe that they, as the detective states to her, that Frank's DNA was found on her external genitalia swabs.

[00:38:26]You can't read that conclusion that's in the actual report and in any way interpret that to be what he described in the email to Miss Nicholas and then I think as he was saying here today um describing it potentially as a match to Mr. Ortiz the So that's problematic in and of itself. But really what's problematic too is now that we know well the everyone knew while this was going on that Mrs. Nicholas had made statements contained in discovery and at various periods of time as to her uncertainty about who did this and whether it happened. I I've heard through testimony that there were previous statements she made about was did this really happen? Was it a dream?

[00:39:18]Was it him? I mean, she was saying this apparently [clears throat] all along.

[00:39:23]And then what I heard her testify to yesterday was that um when she received what we now know to be that email that's contained in exhibit 6 where the detective tells her that Frank's DNA was found, I think her testimony was something to the effect of that's when I knew for sure or that's when I realized that it was true. What I got from that is her testimony and certainty as to what she testified this jury about was heavily, if not well, very heavily influenced by the misstatement that the detective made to her about the significance of the DNA interpretation.

[00:40:08]When I'm trying to figure out what it is an appropriate remedy, the remedy has to go to her testimony before this jury and the certainty of it because it was influenced based on incorrect information that the detective gave to her that nobody knew about until apparently yesterday. To clarify and succinct, court finds a rule 16 violation.

[00:40:35]these communications and statements um are were and discoverable again talking about the materiality that's that's not really a consideration right now but as I've indicated the crux of the issue is that by providing incorrect DNA results information to Miss Nicholas here which then solidified her belief in some uncertainty about things that happen that certainly would qualify as material that would tend to negate it's favorable evidence. It's over it's exculpatory evidence uh because it goes directly to the certainty of her testimony and how she testified and indeed did testify during the proceedings. The question before me again is what is the appropriate remedy? I've already articulated my findings that I I don't believe that this was intentional.

[00:41:39]Um withholding the parties have the emails now. Um ultimately we're going to say I'm not going to grant the motion to dismiss. Um I think that that is far too severe a sanction given the totality, the fact that we have the emails. Ms. Nicholas is still available for cross-examination.

[00:41:58]>> Your honor, um I understand the court rule respectfully. Um, [clears throat] I don't think we can. First off, I don't think Frank's getting a fair trial.

[00:42:06]>> Yes.

[00:42:07]>> Um, and I don't think with all due respect, saying, "Gee will occurs, they broke the law, which may have misled letter, but here we are consider. That's not going to fix it. We have to have a mistrial at the very least." And I say that because part of it is what that detective said, I know [clears throat and snorts] the court's going to say that was not intentional.

[00:42:27]And the fact that he says at 3:00 I knew about it. Then was communicating and emailing and I didn't tell [snorts] anybody.

[00:42:36]That's that's the court's ruling. But that's something the jury a jury would need to hear and they would need to hear about him misleading and they would need to know about his training and experience. And fully I don't believe this whole server issue respectfully may be true but I'm going to flush that out in the next trial because I do not believe that's true. and you can't fix it with we're good though, right? You miss and also it's vouching for her credibility because the whole premise is the way it played out. It played out in a trial of there are no emails by the detective. He thought it was a phone call. She gets up and says, "No, it was emails. I'm certain of it. There was more than one."

[00:43:21]And then in his last email when we got the DNA results, he told me to call him and I did. And then we approached and we said we'll deal with it later. The jury saw it in real time. Now we're going to magically produce emails which show she was telling the truth which bolsters her credibility and also creates sympathy for this person who one was I think the court's use of the term very liberally was misled.

[00:43:49]She was misled and she's been in therapy for 2 years because of what this detective did and said to him. And as a reward for not turning it over, it's bolstering her credibility.

[00:44:00]You can't fix that.

[00:44:02]And not with this jury pool or this jury panel.

[00:44:06]>> I find there's good cause based on defense argument. And I'll grant the motion for mistrial.