On April Fool’s Day last year, Mark Franklin closed a gate to Zane Odell’s corral on Lime Ridge, a windy rise between the small southeast Utah towns of Bluff and Mexican Hat.
In the criminal justice fracas that ensued, that is about the only fact all sides agree on as Franklin and his wife, Rose Chilcoat, a prominent environmental activist whose pro-wilderness advocacy has upset San Juan County officials for years, are headed to a May 23 trial.
Prosecutors alleged the Durango, Colo., couple closed the gate with felonious intent — to keep Odell’s cattle from reaching a crucial water source inside the corral.
The case has become deeply political, even by the standards of San Juan County, for politically charged litigation such as County Commissioner Phil Lyman’s conviction for leading an illegal ATV ride through Recapture Canyon in 2014.
Last November, 7th District Judge Lyle Anderson ordered Franklin and Rose Chilcoat to stand trial on felony charges in the gate case after a hearing in Monticello, despite evidence that the closure made no difference for bovine safety since a 10-foot section of the corral fence was down.
According to a new brief filed on the couple’s behalf in the case by a University of Utah law professor, prosecutors’ legal theory rests entirely on impermissible grounds that violate Franklin and Chilcoat’s constitutional rights to freely associate and freedom of expression.
“The prosecution in this case — one aimed at silencing an environmental activist and her husband by threat of criminal prosecution and imprisonment — is an attack on those fundamental rights,” attorney Paul Cassell wrote in the April 9 court filing.
In essence, Cassell argues, the couple were charged because of Chilcoat’s political activism in support of public lands conservation as the one-time head of Great Old Broads for Wilderness. His brief asks Anderson to quash his own order binding the couple over for trial, which would essentially dismiss the charges.
Cassell isn’t just another lawyer. He is a formal federal prosecutor who served as a U.S. District Court judge from 2002 to 2007 before joining the U. faculty, where he is considered a national expert in victims’ rights.
“I don’t usually do criminal defense work and haven’t worked with environmentalists before,” Cassell said, “but because this case raises such disturbing First Amendment and other concerns, I felt it was important for me to get involved.”
Franklin and Chilcoat were visiting nearby Valley of the Gods at the time Franklin closed the gate on the peculiar corral on U.S. Highway 163. It is fashioned from black 6-inch diameter plastic tubes, installed vertically, giving the corral the appearance of a fort. The corral is on a state trust section of land, surrounded by Odell’s large federal grazing allotment administered by the Bureau of Land Management.
The couple stopped by the corral on their way home April 3, when they were confronted by Odell and two associates and blocked from leaving while a sheriff’s deputy was summoned. Franklin acknowledged closing the gate, telling Odell and the officer his intent was to help the rancher and that he could see a section of the fence was down, according to testimony.
In court filings, San Juan County Attorney Kendall Laws wrote that the prosecution’s theory of guilt is sound and based on “reasonable” interpretations of the couple’s “deeds and actions,” not their political views.
“At this stage of the proceedings, all that the State must do is establish that its theory is reasonable,” Laws wrote. “It is also a reasonable inference that Defendant Chilcoat’s public beliefs against livestock grazing on the public lands could have been a contributing factor in the Defendant’s actions with the gate.”
But, according to another retired Great Old Broads executive, Veronica Egan, the group does not oppose grazing on public lands, but rather advocates for more careful management of livestock, as well as voluntary retirement of grazing allotments on the part of ranchers looking to get out of the business.
“They finally have a chance to charge a Great Old Broad and make that person miserable regardless of the insignificance of what went down,” Egan said. “They trumped up a federal case out of nothing.”
Laws has declined The Salt Lake Tribune’s request for an interview about the case, which has been attacked by some as a politically motivated since the day he filed the charges a year ago, but he did offer comment via email, calling such criticism “baseless and absurd.”
“When screening a case presented to us by law enforcement, we review the reports, statements, and other items of evidence and then apply that information to the laws established by the Legislature,” Laws wrote in the email. “We follow the same procedure for all cases, regardless of the severity of the crime or the notoriety of the accused.”
Question of tire tracks
But Cassell’s brief contends Laws’ inference of Chilcoat and Franklin’s guilt is predicated on their association with each other, not on any reasonable analysis of the facts.
Evidence of Franklin’s guilt is based on his marriage to an alleged enemy of the ranching industry, while evidence of Chilcoat’s guilt is based on her visiting Valley of the Gods with Franklin that weekend. Prosecutors presented no direct evidence that Chilcoat was even present when the gate was closed.
After the preliminary hearing, Franklin underwent a polygraph test. The results support his assertion he was aware of the breach in the corral and had no desire to exclude cattle from water, according to Chilcoat.
Cassell contends Anderson improperly relied on Odell’s own analysis of Franklin-Chilcoat’s tire tracks to support the prosecution claim he intended to hurt cattle.
The closed gate, Odell testified, “could wipe out my whole calf crop and part of my next one.” The rancher said the fence had been temporarily breached to allow access while he was working on a well inside the corral, but that there was no way to see the breach from the gate, which was 50 yards away.
Over defense attorneys’ objections, Odell testified that the tire tracks indicated a certain direction of travel as Franklin’s Toyota SUV looped past the gate. In Anderson’s courtroom, the testimony passed as “proof” that Franklin could not see the fence breach and that he had “ill intent” when he closed the corral gate.
But according to Greg Rogers, a retired FBI crime-scene investigator hired by the defense, tire track analysis should be left to experts and conducted in accordance with various protocols that did not happen in the Lime Ridge case. In a declaration to the court, Rogers said tire track evidence is useless in court unless it is recovered, preserved and inspected by trained professionals.
“Even Rogers, an experienced federal agent who has investigated thousands of crime scenes, could not offer a definitive expert opinion based on the dearth of forensic evidence in this case,” Cassell wrote. “And yet the State relied on Odell’s lay opinion to reach its ultimate conclusion that Franklin shut the gate to the corral unaware that there was a separate opening in the corral that permitted the cattle to freely enter and exit.”