Jan. 14, 2005
SportsLine.com wire reports

BOULDER, Colo. -- The only person indicted in the University of Colorado football scandal won the right Thursday to review all materials from a grand jury that investigated the scandal but lost a bid to have the case suspended based on alleged leaks from the secret panel.

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The materials ordered released could include transcripts of conversations between prosecutors and grand jurors, testimony by witnesses, and a fraud investigator's report on the CU athletic department's finances and a private foundation.

Nathan Maxcey, 28, was charged with soliciting a prostitute and embezzlement of public property by misusing his university-issued cell phone. Maxcey, who flew in from Texas to attend the hearing, did not enter a plea and refused to comment to reporters afterward.

"I don't know if there is any information in that material that may be exculpatory for Mr. Maxcey," Maxcey's attorney Patrick Mulligan argued before the judge. "But there is a great wealth of additional (material) that I need to parse through to determine what may or may not be relevant."

District Judge Daniel Hale ordered the material released under seal, meaning only Mulligan and his investigators have access to the information.

Hale also ordered the attendance records of grand jurors released so Mulligan could determine if the jurors who heard key testimony were the same jurors who voted to issue an indictment.

Before his ruling on the grand jury material, Hale rejected Mulligan's motion to suspend the case based on newspaper reports that an accountant conducted a fraud examination of the university's finances as part of the grand jury's investigation.

Mulligan argued the media reports might show prosecutorial misconduct because the leak of secret information might have come from people involved in the grand jury investigation. Such misconduct could lead to a dismissal, Mulligan argued.

Hale said he would wait to rule on that issue until an investigation into the alleged leaks ordered by Denver District Judge Jeffrey Bayless, who oversaw the panel's investigation, was completed.

The next court date was set for April 1.

Deputy District Attorney Cynthia Kowert, who argued the case for the Boulder district attorney's office, said the DA's office would release the grand jury material to Mulligan.

"Grand jury materials are not routinely given to the defendant, but it's not unheard of either," said Dan Recht, former president of the Colorado Criminal Defense Bar.

Kowert argued that the material not be released because it was ordered sealed by Bayless. She also argued that Maxcey wasn't entitled to all the information because there were two separate investigations -- one that resulted in Maxcey's indictment and one that resulted in a report written by the grand jury.


That issue is being decided in the courts, a process former Attorney General Ken Salazar said could take months after his emergency appeal to the Colorado Supreme Court was rejected last month. Attorney General nominee John Suthers, who took over this month after Salazar got elected to the U.S. Senate, said he would continue Salazar's efforts.

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Colorado law allows a grand jury to indict someone or issue a report when there is not enough information to charge someone with a crime. Because it cannot do both, Bayless has kept the grand jury's report from being publicly released. A grand jury also could choose to do nothing.

Hale said Bayless considered the grand jury report one investigation. Because of that, Maxcey was entitled to all of the grand jury material, which includes material not directly related to Maxcey's case, including names of alleged victims and information about the university and its finances.

"If I have to wait for the appellate process to conclude, that would not allow me to give Mr. Maxcey a speedy trial," Hale said, adding that witnesses not directly involved in Maxcey's case could be questioned by Mulligan or his investigators only with court approval.

The grand jury investigated CU's football recruiting program this summer after three women filed federal lawsuits alleging they were raped by football recruits or players. The lawsuits are pending.

In court documents filed in one of those lawsuits, a former escort service manager said Maxcey paid her $2,500 for prostitutes to visit "very young, very athletic" at two Boulder-area hotels. Maxcey has denied wrongdoing.

The grand jury, along with CU officials and an independent panel, also examined allegations that the football program used sex and alcohol to lure top recruits. The independent panel said some players offered to arrange sex, alcohol and drugs for recruits and blamed lax oversight by top university officials.