By David Grant Long

A man who went on trial in district court Monday for allegedly selling speed to a police informant was granted a motion for a mistrial after Judge Sharon Hansen found that the district attorney had withheld key evidence from the defense.

Cortez resident Tony Valdez Lobato is charged with two counts of distributing a controlled substance -- i.e. selling small quantities of methamphetamine --to Daniel Lee Kingery last fall while Kingery was wearing a wire and under police surveillance.

Kingery, who has previous convictions for sexual assault on a child and thievery, according to the testimony of Cortez Detective Jim Shethar, had agreed to work with police in return for pending charges of drunk driving and shoplifting being dropped.

"We made arrangements to have the charges dismissed," Shethar said. The informant also had other arrests for DUI, larceny and trespass, according to court records, and was recently sentenced to 90 days in Montrose for a felony theft charge he’d faced there.

The jury was seated, opening arguments made and the trial underway when the prosecution’s error was inadvertently revealed by Shethar while he was undergoing cross-examination from Public Defender Tom Williamson.

The detective, who had previously testified that no drugs or paraphernalia associated with drug dealing had been found during a subsequent search of Lobato’s residence, recalled a list of names and figures "that indicated drug sales may have taken place" had been found in Lobato’s billfold during the search; however, this item had been listed in the inventory of what was seized only as a "miscellaneous paper," and, out of the jury’s presence, Williamson declared that he’d never seen or heard of such a list before.

District Attorney Mike Green argued that his only obligation was to make the items in the inventory "available" for inspection by the public defender’s investigator, and pointed out it had been Williamson’s ill-advised question that had brought the list to light at any rate.

But Hansen said just how the existence of the list had been revealed was irrelevant, and that it should have been provided to Williamson under the rules of discovery, a process during which both the prosecution and defense must disclose to the other side the names of witnesses and whatever evidence they expect to use in the trial.

And Green ultimately agreed the omission had been a mistake on his part.