There has been a second mistrial in the case of the man accused of hitting and killing Trooper Cody Donahue in 2016 along Interstate 25, the court announced on Friday.
Noe Gamez-Ruiz is accused of hitting and killing Trooper Cody Donahue while driving a truck on Interstate 25 outside of Castle Rock on Nov. 25, 2016.
A Douglas County judge last September declared a mistrial in the case against Gamez-Ruiz.
Harvey Steinberg, the attorney representing Gamez-Ruiz, said the reason for this mistrial is the same as the first – the prosecution presented evidence during the trial that had not been shared with the defense ahead of time.
In a press conference Friday, District Attorney George Brauchler explained that the deputy in charge of transporting the vehicle that struck Trooper Cody Donahue from the scene of the accident said during testimony that he noticed that the vehicle was pulling to the right. The deputy did not include that information in the initial report.
"The steering wheel was out of alignment, that the wheels were out of alignment. The one thing he didn't say (before the trial) was this truck felt like it was pulling to the right," Brauchler said.
The court requires that evidence from the prosecution must be shared with the defense before the trial. Because it was not, the judge declared a mistrial for the second time. In the first trial, the same kind of thing happened with two other pieces of evidence that were not disclosed to the defense before the trial.
Steinberg says he could not believe the prosecution made the same mistake twice.
"If you're in a vehicle now that's being described by the prosecution as having some kind of misalignment that's causing it to pull to the right, that's a significant fact don't you think? And, (it) should've been disclosed to us," Steinberg said. "The first time, look, mistakes happen. We don't like it, but the reality is, it's life. The second time, it becomes unfair."
Brauchler admits his office made an error and says it is frustrating the case won't be sent to the jury, again.
"To get to the point where you have to explain how we're not going to get to that outcome today, that we're going to have to wait and that in large part the reason for that delay is attributable to us? Yeah, buddy, that really sucks," Brauchler said.
He said the toughest part is making the family of Trooper Donahue go through a trial for the third time.
"We've asked them to get themselves geared up to steel themselves to this unforgiving merciless process and we can't get an outcome? That is frustrating," Brauchler said. "That it happens twice and not just to any other member of our community, but a member of our law enforcement family, yeah, that is a soul-sucking outcome."
“The family is devastated by today’s outcome,” Brauchler read from a statement made by Trooper Cody Donahue’s family. “We are angry and hurt that the justice system is failing to provide justice for Cody.”
Both sides will return to court on February 20 to set a date for the third trial.
A jury was seated for the second trial on Tuesday and opening statements began Wednesday morning.
The defendant, Noe Gamez-Ruiz, pleaded not guilty to criminally negligent homicide and two traffic offenses: one for careless driving and another for careless driving resulting in death.
Donahue, an 11-year CSP veteran, was out of his patrol car assisting Trooper Mathew Normandin with investigating another crash that day when he was hit and instantly killed by a truck.
Normandin, a 10-year CSP veteran, was the lead investigator on the crash. According to court testimony, Donahue showed up about 10-15 minutes later, and both men parked their patrol cars completely in the right shoulder while investigating the single-car crash.
Normandin testified in court that he was inside his patrol vehicle when Donahue was struck. He said he saw it happen, and that he jumped out his car and immediately called over the radio, "Officer down, officer down!"
Normandin said he ran up to Donahue and could clearly see that he was dead and that he "stood there in shock" after it happened.
Arapahoe County Deputy District Attorney Thomas Byrnes said in opening statements that Gamez-Ruiz had "plenty of opportunity" on the "clear and open road to move over."
"The defendant had the knowledge, training and experience to avoid killing Trooper Donahue that day," Byrnes said.
Defense Attorney Steve Burstein said the case was a "tragic accident."
"It is an accident and nothing more and nothing less," Burstein said.
Byrnes said Gamez-Ruiz was driving 54 mph as he crossed over the white line and passed two marked patrol vehicles with flashing lights.
Gamez-Ruiz could have seen the flashing lights from over 1.5 miles away, which would have given him 1 minute, 45 seconds to move over a lane, according to Byrnes.
Dash-cam footage and footage from inside Gamez-Ruiz's U.S. Foods truck was displayed in court and showed the moment Donahue was struck.
According to court testimony, Donahue was struck by three different parts of the box truck. It's believed a lock on the back of the vehicle struck the trooper in the head, delivering the fatal blow.
Douglas County Sheriff's Deputy Leonard Herstein testified that he responded to the initial crash after Donahue was struck.
Gamez-Ruiz is heard on camera saying he was driving in the right lane, saw the police cars ahead, but couldn't move over. He said in the video that he then saw a yellow vest in his rear-view mirror as he passed. He said he then swerved and hit the guardrail and came to a stop in the right shoulder.
Last September, a judge declared a mistrial in the case after two pieces of evidence came out that the defense says they should have seen.
Following Trooper Donahue's death, Colorado passed the "Move Over for Cody Act." The law stiffens penalties for drivers who fail to move over for emergency vehicles and cause injury accidents.
Under the law, a driver who failed to move over and injured another person would be charged with a class 1 misdemeanor. A driver who causes the death of another person would face a class 6 felony charge.
Morrison Police Chief George Mumma told 9NEWS on Tuesday his officers routinely deal with drivers who fail to move over.
Mumma described a Jan. 23 incident in which a driver of a truck crashed into an officer's car as he was working a crash on C-470. Thankfully, the officer and driver he was helping were outside of their cars at the time of the crash.
"Had that car moved over like the law says, then this accident would never have happened," Mumma said.
The driver was cited, and Mumma is thankful his officer wasn't hurt. He hopes drivers start changing their habits.
"The whole idea is that we want our guys to go home at night, too," Mumma said. "We’re just asking the public, you know, give us a break.”
This story draws on previous reporting from Katie Eastman and Allison Sylte.
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