Three criminal defense attorneys who testified at a 2008 motions hearing that GOP sheriff candidate Steve Nowlin was dishonest were not expert witnesses.
With 17 years of experience in criminal defense, Durango defense attorney Brian Schowalter explained that under Rule 702 of Colorado statutes, a foundation would have been required to deem a witness as an expert. In regard to the testimony calling Nowlin’s credibility into question at the motions hearing, Schowalter described it as lay testimony under Rule 701.
“A lay person can testify regarding opinions and inferences if the testimony is rationally based on the perception of the witness, is helpful to a resolving the witness testimony or a fact in issue and it’s not based on scientific, technical or specialized knowledge,” explained Schowalter.
Schowalter said he was unable to comment if the testimony provided by the three defense attorneys had any bearing on the outcome of the case.
“So these three witnesses had some experience with Nowlin,” said Schowalter. “What that experience was, I don’t know, but it was sufficient enough for the court to permit their testimony.”
John Baxter, current attorney for Montezuma County, represented the suspect in the 2008 interstate drug/theft ring that was subject to the motions hearing. After reiterating to Baxter that The Cortez Journal was uninterested in retrying the conviction in the press and concerned about the motions hearing testimony and its impact on the current sheriff’s race, he again refused to comment – on the record when contacted a second time on Friday, Sept. 19. The Journal first questioned Baxter about the motions hearing testimony in a courthouse hallway in late August.
Schowalter, who represented a co-defendant in the case, said it was “reasonable to assume” the jury disregarded any similar, if provided, trial testimony, citing the conviction was subsequently upheld up an appellate court.
“Obviously Nowlin’s testimony [at trial] was important, or the defense would not have felt the need to attack his credibility in such a manner,” said Schowalter.
Under Rule 608, the credibility of a witness may be attacked by evidence in the form of opinion or reputation. Schowalter explained the three criminal defense attorneys that testified at the motions hearing would have been unable to provide specific instances of conduct that supported their opinion at trial. If similar testimony was provided at trial, Schowalter said jurors would have decided the relevance.
“The only people who will be able to tell you whether it affected the outcome of the trial are the jurors,” he added.
tbaker@cortezjournal.com