Prejudice From Illegal Detainment

Prejudice is determined when a defendant's ability to defend a charge is impaired resulting from the delay. Due to the large passage of time between the date of arrest, appointment of counsel, and date of arraignment, Hogan's ability to defend the charges against him was critically impaired and therefore prejudiced him in the following ways:

1.    Hogan was not appointed counsel to begin a prompt investigation of the circumstances of the case and explore all avenues leading to facts relevant to his case and secure exonerating exculpatory evidence, i.e. video surveillance from Cherry Creek Mall; investigate eye-witnesses and alibi witnesses in his defense, until well beyond six months after his arrest. Because an attorney was not made available to Hogan during the period of unnecessary delay, rendered him unable to fairly defend himself against the charges.

2.    On March 2, 2000, an hour after the robbery, police interviewed Kelly Van Breemen, the bank teller that handled the transaction for the alleged victim. Ms. Breemen stated that the T.H. pulled up to the window closest to her station and had a clear view of both T.H. and the passenger (CD 11/15/01, pp.88,89). She further stated that she "met eyes" with the man in the passenger seat and described him as a young Caucasian male in his late teens or early twenties with blue eyes, wearing a grey snow hat (Id at 93, 98, 99, 103, 105). In spite of Ms. Breemen having a clear view of the robber, police never returned for follow up questioning or to have her view a photo array (Id  At 99, 100).

It wasn't until after Mr. Hogan was appointed counsel that Ms. Breemen was shown a photo array (over a year later). (CD 11115/01 pp. 100, 101). Upon seeing the photo array, she stated that "none of the persons in the array looked familiar." (Id. At 101: Def. Ex. D). Ms. Breemen further testified at trial, when asked if she ever felt that she could make an identification of this man, she stated, "Well, probably if someone approached me a little earlier, I might have been able to." (Id. At 105).

Had Ms. Breemen been investigated and shown the lineup in a timely manner, not only would her identification testimony make clear that Mr. Hogan was not the perpetrator of this offense, but her identification testimony would be reliable and capable of evaluation before the trier of fact.

Because of the delays, Hogan's ability to secure identification and testimony from Ms. Breemen, the only corroborating witness-which would have exonerated Hogan-mortally impaired his right to an ample opportunity to meet the case of the prosecution and the reliability of the adversarial testing process. Without the delay, Hogan would have obtained exculpatory testimony critical to a proper defense of the case against him.

3.    Exculpatory evidence, i.e. video surveillance footage from the Cherry Creek Mall, which would have exonerated Hogan, was no longer available due to the unnecessary delays and the state's failure to collect and preserve evidence.

The record evidence reflects the alleged offense originated inside the Cherry Creek Mall parking garage, travelled to the U.S. Bank of Cherry Creek and ended at the Christy's Sports Shopping Center located at 1st and University in Denver, lasting approximately 22-25 minutes. Based on witness testimony, the prosecution presented and argued in trial that the perpetrator was "very tactical" and went to the Cherry Creek Mall, where he picked out T.H. as his prey then followed her from inside

the mall into the garage parking area where he robbed her (CD 11/16/01 pp. 105).

Video surveillance is positioned at every entrance and exit point within the mall, not to mention throughout the entire mall. Surveillance footage from the Cherry Creek Mall would have determined conclusively that Mr. Hogan was not even present at the Mall, and therefore did not commit this offense.

However, video surveillance was never requested by police or the D.A., nor did police make any attempt to retrieve fingerprints, DNA or any other physical evidence from the victim's vehicle or various incident locations. (CD, 11/14/01, pp226-30).

Consequently, due to the absence of any advisement of even a single charge and the lack of appointment of counsel during the unnecessary delay of five months, Mr. Hogan was barred from obtaining the above exculpatory evidence as it was no longer available after the large passage of time. The result of this loss of crucial physical evidence prejudiced Mr. Hogan beyond remedy.

4.     Alibi witness testimony and evidence in support thereof was greatly diminished and lost due to passage of time. In Mr. Hogan's alibi, he disclosed that he was at the Excel Institute with Crawford, picking up Crawford's four-year old son, but the records and testimony necessary to substantiate the alibi could not be obtained. (See Alibi section)

5.    Hogan's federal constitutional right to speedy trial was violated due to the delay. Such a delay between date of arrest and date of judicial advisement, a span of 5 months, prejudiced Mr. Hogan, depriving him of his constitutional right to a speedy trial.

6.    The prosecution strengthened their case during the period of unnecessary delay. Because of the delays, Mr. Hogan was unable to, (1) retrieve surveillance footage from the Cherry Creek Mall as it was no longer available; (2) interview Bank Teller Kelly Van Breemen within a reasonable time so that her identification and testimony could be capable of meeting the adversarial testing process; and

(3) secure alibi testimony and evidence in support thereof. Moreover, the prosecution deliberately delayed the commencement of the prosecution until after Hogan plead guilty in his federal case, so they could take advantage of evidence from that case.

These delays critically impaired Mr. Hogan as he was unable to obtain any of the exonerating exculpatory evidence that was available and would have still been available absent the delays, thus strengthening the prosecution's case at the detriment of Mr. Hogan.