By David Grant Long

District Attorney Mike Green’s former girlfriend, who had alleged in a pretrial hearing he’d tried to frame her out of jealousy, was acquitted on a drug-sales charge in mid-trial Tuesday after a key prosecution witness failed to materialize.

Because of his previous relationship with defendant Catherine McKenzie, Green was not involved in prosecuting the case, which had been assigned to Deputy District Attorney Susanne Ross of the Seventh Judicial District in Montrose. However, defense attorney Geoffrey Craig claimed to have evidence of Green’s efforts to use police to harass McKenzie after they parted, and letters Green had sent to her that included threats of retaliation if she didn’t come back to him.

That potential evidence was ruled inadmissible at a hearing Oct. 1, however, and Ross accused the defense attorneys and the Cortez Journal of conspiring to blacken Green’s reputation.

But McKenzie’s trial on a charge of distributing methamphetamine, which began Monday, ended before a defense was even mounted, and a similar charge against her husband, Kaan Clark, was also dismissed.

District Judge Sharon Hansen granted Craig’s motion for a directed verdict of not guilty after prosecutor Ross conceded she could not prove the required elements of her case without testimony from Colorado Bureau of Investigation agent Gary Koverman. He had been scheduled as the prosecution’s final witness but, for unexplained reasons, failed to appear in court.

Koverman had tested a substance -- purportedly methamphetamine -- that a police informant said he’d bought from McKenzie at the Warsaw Lounge in March 1998.

The CBI agent was supposed to be in court by 9:30 a.m., according to Ross, even though the jury had been instructed to be there an hour earlier to resume the trial. Still, Hansen waited until nearly 10 a.m. before telling Ross further delay was unacceptable and she would have to rest her case. The prosecutor then agreed that the felony charge should be dismissed because Koverman’s testimony was essential to establish that the alleged contraband was, in fact, a controlled substance.

Hansen stressed that her ruling was based solely on Koverman’s unavailability and not on the overall strength of the prosecution’s case.

McKenzie, along with Clark, had been accused of selling Hank Hicks approximately a quarter-gram of speed for $25 while Hicks was working as a paid informant for the Montezuma County Sheriff’s Department. But only 0.02 of a gram was sent to the CBI for testing, an amount that Craig argued in his opening statement would never be bought or sold anyway because it wasn’t "enough to get you high."

Hicks, a former bouncer at the Warsaw, testified Monday that he’d "always been against drugs" and this had been his sole motivation in working with police. He said he’d told McKenzie he needed "something to keep him awake" during a two-day truck-driving stint, and she’d asked him if he preferred "coke or crank (speed)."

Hicks said he then gave her $25, which she handed to Clark, who left the bar and returned with the contraband a short time later.

Both Detective Steve Harmon, who was supervising the operation from a vehicle parked nearby, and Deputy Eric Trapp, who was also working undercover at the Warsaw that evening, testified for the prosecution, but neither had personally witnessed the alleged transaction. A recording made from the transmitting device Hicks was wearing was also played for the jury, but consisted mostly of unintelligible noise. At one point, a voice could be heard mentioning McKenzie’s name, and Harmon said this was Hicks informing him he was about to make the buy.

Under cross-examination, Hicks denied that he’d ever expressed a romantic interest in McKenzie, that he’d been fired from the Warsaw and that he’d never threatened to have the Warsaw closed because of his influence with police and the Montezuma County district attorney -- a statement Craig promised to refute with a defense witness.

Craig also demonstrated that Hicks’ testimony differed on several points from earlier testimony he’d given at a preliminary hearing in February, including his denial that he’d ever been charged with a felony himself.

Craig produced documents showing Hicks had been notified two weeks before the hearing that he’d been charged with felony theft in Moffat County, a charge that Hicks explained had been reduced to a misdemeanor after he’d talked to the DA there.

The informant initially maintained that he’d only been asked during the preliminary hearing if he’d ever been convicted of a felony, and when a transcript was produced that showed otherwise, Hicks then asserted that he’d misunderstood the question. Hicks also said he had no idea what quantity a teaspoon might be, even though, according to the transcript, he’d estimated at the preliminary hearing he’d obtained a little more than a teaspoon’s worth of contraband from McKenzie.

One juror who later agreed to talk on the condition of anonymity said Hicks had been a "horrible witness" who lacked credibility, and that in brief conversations after the jury was dismissed he’d gotten the impression the majority believed the evidence against McKenzie was extremely weak.

"The whole case rested with one witness," he said, "and he was not really believable because he made up different stories in his testimony."

Disparities also existed between Hicks’ accounts of how long he’d been in the bar and Trapp’s testimony on the same issue. At the preliminary hearing, Hicks agreed that he’d been at the Warsaw for roughly a half-hour and left around 10 p.m.

Tuesday, however, he testified he’d been there until approximately 12:30 a.m. and left at the same time as Trapp. Then the deputy testified he’d left the bar around midnight and Hicks had joined him outside a half-hour later.

In explaining this discrepancy, Hicks said he could have been in the bar anywhere from a half-hour to two or three hours.

"When you’re talking to people, you don’t keep track of time," he said.

Trapp also testified that Hicks, contrary to standard procedure, hadn’t been thoroughly searched before the attempt to make a drug purchase but had only been asked to empty his pockets.

After Hansen’s ruling on McKenzie’s case, Ross submitted a motion requesting Clark’s charge be dismissed because "the prosecution of this case is no longer in the best interests of the people of Colorado.

"The likelihood of conviction is extremely low and the cost to the people is very high," she stated, even though the "investigation and prosecution of this case were initiated lawfully and in good faith."