A Durango defense lawyer accused of tampering with evidence in a murder investigation has been cleared by a regulatory council that reviews attorney conduct.
Brian Schowalter said he did nothing wrong by possessing a letter that was written to his client by a suspected murderer. He said he shouldn’t have been forced to defend himself.
“People come up to me and say, ‘Congratulations. I’ll bet that’s a relief.’ It’s like, no, don’t give me congratulations. I knew from the beginning I didn’t do anything wrong.”
District Attorney Todd Risberg accused Schowalter of refusing to turn over evidence in a murder investigation, making the evidence unavailable for use in a criminal proceeding, a violation of the law.
Risberg used a local grand jury to obtain an indictment against Schowalter in August. He then filed a formal criminal charge of tampering with physical evidence, a felony.
Risberg and local judges recused themselves from the case, citing a conflict of interest.
A special prosecutor from the 12th Judicial District Attorney’s Office, which includes Alamosa, was appointed to handle the case.
The special prosecutor dropped the charge, saying she couldn’t prove Schowalter intentionally tampered with physical evidence.
The letter in question was written by Tommy Lee Mitchell, who was convicted last month of first-degree murder. Mitchell sent the letter to Schowalter’s client, Shanice Smith, who was sentenced last year to eight years in prison after pleading guilty to robbery and accessory to murder.
The letter didn’t qualify as attorney-client privilege, and lawyers are bound by ethical rules to turn over physical evidence they have in their possession in a criminal case.
Risberg asked the Colorado Attorney Regulation Counsel to investigate the case, which determined the circumstances didn’t warrant any disciplinary action.
“We conclude that, under the totality of the circumstances, your failure to produce the original letter to the prosecution when you first received it does not rise to the level of disciplinable conduct under the Rules of Professional Conduct,” reads a letter dated Feb. 20 from the counsel to Schowalter.
Risberg was aware of the letter’s existence and had access to a copy of it early on during the murder investigation, the counsel said.
Schowalter also consulted with other criminal defense lawyers to determine the best course of action to take with respect to the original letter and provided it to prosecutors as soon as he recovered it from his investigator, the counsel noted.
“There is not clear and convincing evidence that you unlawfully intended to conceal or otherwise withhold the original letter from the prosecution,” the letter reads.
Risberg said he is disappointed that the Regulation Counsel didn’t act.
“I disagree with their factual conclusions, and I’m disappointed in their decision,” Risberg said.
Schowalter said Risberg abused his prosecutorial powers by pursuing criminal charges.
“It still makes me angry,” Schowalter said. “It was wrong. There was no merit to it. I feel like I was attacked. I still don’t know why he did it.”
Risberg said he doesn’t regret raising the issue. It would have been inappropriate to ignore Schowlater’s conduct simply because he is a local attorney or a former friend.
“It was a very difficult decision, but we concluded we can’t just ignore it because it is Brian,” Risberg said. “He clearly had physical evidence in his possession and refused to turn it over.”
Schowalter said he expects the Attorney Regulation Counsel will turn its attention to Risberg and his handling of the situation.
“I think at some point in the future, Attorney Regulations is going to be asked to look into this matter,” he said.
Said Risberg: “So what. Any attorney is obligated to file a complaint if they think there is unethical conduct.”
shane@durangoherald.com
