By David Grant Long

The defense won an early round Monday in a potentially sensational case involving the prosecution of District Attorney Mike Green’s former girlfriend -- who, along with a man now her husband, is accused of selling $25 worth of speed to a police informant in March 1998.

But the major battle on introducing evidence critical to the defense is yet to come.

Catherine "Casey" McKenzie, 37, and Kaan Clark, 28, are each charged with one count of distributing a controlled substance, a Class 3 felony, for allegedly selling Johnny Hank Hicks a quarter-gram of methamphetamine at the Warsaw Inn in Cortez, where the defendants worked.

Hicks, a truck driver, testified at a preliminary hearing in February that he’d gone to the Warsaw and told McKenzie, the bartender, that he needed "something to keep him awake," to which she allegedly replied, "What’s your pleasure -- crank or coke?" He said she then gave his money to Clark, who handed her the contraband a short time later, and the exchange was made.

Because of McKenzie’s previous relationship with Green, which ended well before the alleged incident, her case and Clark’s are being handled by the district attorney’s office in Montrose, the Seventh Judicial District.

But beyond that complication, the case involves allegations by McKenzie that she and Clark were framed by a jealous Green as part of his obsessive efforts to win her back after she spurned him. She claims to have more than 30 love letters from Green, plus witnesses -- at least one from the Montezuma County Sheriff’s Department -- to support this charge, but the prosecution filed a motion last spring to prevent any evidence regarding this personal relationship from being introduced during the defendants’ trials, which have been set separately.

At a motions hearing Monday to clear the way for the trials, Montrose Deputy District Attorney Susanne Ross asked Montezuma County Judge Christopher Leroi to impose a gag order on The Cortez Journal that would prevent any information and testimony concerning her motion to suppress this evidence from being published.

"Even if this defense is denied," Ross argued, "(the information) coming out in the paper would serve the same purpose, since it would bias potential jurors."

"This kind of information about the district attorney is so inflammatory you would risk contaminating the entire jury pool," she added.

However, defense attorney Nancy Agro, who is representing Clark, said "there’s always the risk of tainting the jury --That’s one of the reasons for jury voir dire," the process of questioning candidates to weed out those who have already formed an opinion on a case.

Geoffrey Craig, McKenzie’s lawyer, concurred.

"The thing that makes this so unusual is that the district attorney is the subject of this hearing," he argued, "and he shouldn’t get special preference concerning a gag order."

Leroi ultimately imposed a temporary 10-day gag order on the paper related only to any new information revealed during the hearing on that motion, which was postponed until Friday.

Leroi explained that the newspaper had a right to respond to Ross’s request for a gag order, and that a final ruling based on First Amendment considerations would be issued by either him or District Judge Sharon Hansen by Oct. 8. (The Journal will be filing a motion today asking the court to vacate the gag order before tomorrow’s hearing.)

However, in the written arguments supporting the suppression motion --information gleaned from court records by the reporter last month -- the prosecution had maintained that "the defense arguments are thinly veiled accusations that (Green) committed numerous felonies in order to retaliate against the defendant."

And yet, it adds, the defense "has not presented a shred of evidence establishing how the district attorney’s jealousy and obsession, if any, led to a grand conspiracy with numerous Montezuma County Sheriff’s deputies and investigators and other individuals to frame the defendant."

But Craig maintained in a written response to the motion that McKenzie "has a good-faith basis to believe that she was set up by Mike Green because he was obsessed with her and jealous that she ended their relationship and became intimate with another man (Clark)."

And in a supplement to his response, Craig recounted that when interviewed by defense counsel June 29, Sheriff’s Detective Leslie Dunn "stated that, prior to the alleged incident giving rise to this case, Mike Green sent a memorandum to the sheriff’s office which, in essence, advised sheriff’s officers, upon observing the vehicle then owned and driven by Ms. McKenzie, to stop it and advise Ms. McKenzie regarding alleged complaints about her driving, and to ticket Ms. McKenzie if she happened to have violated any laws."

"The memo constitutes a clear abuse of power by Mike Green and a violation of Ms. McKenzie’s civil rights," he alleged, "and supports a defense theory that Ms. McKenzie was set up by an obsessed ex-lover in a position of authority and influence."

Whether Craig and Agro will be able to raise this defense and introduce the letters and testimony at trial will be the subject of Friday’s hearing, which is set for 11 a.m. in district court.

A prosecution motion to allow testimony concerning alleged prior sales of drugs by Clark was denied by Leroi on Monday after he found the uncorroborated testimony of Mendy Gustafson, Clark’s former roommate, to be unbelievable and, moreover, that the very restrictive conditions for admitting prior transactions hadn’t been demonstrated by Ross even if the allegations were true.

"There are significant questions on (Gustafson’s) reliability as a witness," the judge noted. "I think her testimony is entirely suspect."

Gustafson testified that while living in the same trailer as Clark for two months in the fall of 1997 she’d seen him sell marijuana on two occasions and use both pot and speed on several others.

Gustafson, who was recently convicted of theft related to cashing bad checks, also testified that she’d had a fistfight with McKenzie just before contacting police in late January to report Clark’s alleged drug dealing. She explained that she was angry with both of them for reporting to Social Services that she was using speed while pregnant, but denied that she’d been using meth or was retaliating by going to police herself.

However, former sheriff’s Detective Todd Martin testified Monday that when he executed a search warrant issued on the basis of Gustafson’s allegations shortly after she made them, no drugs or paraphernalia associated with drug-dealing were found in Clark’s residence, which he shared with another man.

The only items uncovered during a "very thorough" search of the trailer, Martin said, were a suspected pot pipe containing residue and 32 suspected marijuana seeds, although these objects were never positively identified through laboratory testing.

"It wasn’t what I was expecting," Martin said, "I was expecting to find evidence of distribution -- what I found was for personal use.

"The information we got from Ms. Gustafson about the packaging and sales of drugs in comparison to the items seized -- there was no indication of drug sales going on," Martin added.

Matthew Gertson, Clark’s roommate at the time, testified he never saw any drug-dealing going on and said that he seriously doubted any had.

"We lived 10 miles out in the country, and not many people stopped by," Gertson said. "I had more visitors than he ever had."