Did San Juan County officials orchestrate charges against public-lands activist over closing corral gate?

(Brian Maffly | The Salt Lake Tribune) In April 20017, this corral west of Bluff in Bears Ears National Monument was the scene of a confrontation between ranchers and environmental activist Rose Chilcoat and her husband, Mark Franklin. San Juan County prosecutors allege the couple tried to deprive the cattle of access to water by closing the gate pictured here. Chilcoat and Franklin say the felony charges are absurd, filed as payback for Chilcoat's watchdog activism on San Juan's public lands.

San Juan County prosecutors last week offered to dismiss felony charges against a conservation advocate accused of trying to kill cattle, but then withdrew the deal unless the activist’s husband admitted guilt.

In a flurry of court filings and emails, Rose Chilcoat’s lawyer Jeremy Delicino demanded County Attorney Kendall Laws honor the offer he extended Wednesday and promised to seek Laws’ removal from the case.

Defense lawyers also now contend in a new filing that County Commissioner Phil Lyman applied his influence to trump up bogus charges against the retired director of Great Old Broads for Wilderness and husband Mark Franklin in retaliation for Chilcoat’s efforts to close Recapture Canyon to motorized use and support of Lyman’s criminal prosecution for leading a protest ride there in 2014.

The couple were charged with attempted wanton destruction of livestock, a second-degree felony, and trespassing on state land with intent to disrupt a cattle operation after Franklin admitted he closed a gate to rancher Zane Odell’s corral. Prosecutors allege he intended to block cows’ access to a water source inside the corral, even though part of the corral’s fence was down.

Chilcoat is also charged with another felony based on a complaint she submitted to the Bureau of Land Management that claimed Odell could be overgrazing his allotment and performing unauthorized excavations. Prosecutors alleged she made false claims in retaliation for Odell’s making criminal allegations against her, even though Chilcoat had no way of knowing the allegations were being taken seriously.

Franklin has denied ill intentions throughout, pointing out that Odell’s cows could enter and exit the corral whether or not the gate was closed.

Guilt by association?

A May 23 trial is set before 7th District Judge Lyle Anderson in Monticello, but first Anderson must decide on Chilcoat and Franklin’s recent motion to quash the judge’s own order binding over the pair for trial. That motion was filed by University of Utah law professor and formal federal judge Paul Cassell, newly hired to work on the defense.

Franklin is being represented separately by Jon Williams, who shares a Salt Lake City office with Delicino, while Cassell is representing the couple jointly.

(Courtesy of Great Old Broads for Wilderness) Rose Chilcoat

The motion to quash alleges the prosecution’s case criminalizes constitutionally protected conduct; to prove criminal intent, it rests principally on Chilcoat’s conservation advocacy and Franklin’s association with Chilcoat. In other words, the basis for Franklin’s guilt would rest on his being married to a leader of a wilderness group that supposedly advocates for the destruction of cattle.

The motion also contends the case improperly relies on Odell’s interpretation of Franklin’s tire tracks, which he claimed at the preliminary hearing indicated Franklin was not aware that the corral fence was breached.

In his responses, Laws objects that the defense brought its motion and supporting evidence too late, five months after the Nov. 2 preliminary hearing where Anderson determined there was sufficient evidence to try the couple, who live in Durango, Colo. He also contends a key defense filing is too long and chides the highly experienced lawyers for bending the rules in their favor.

“Their bar number or their prestige does not entitle them to take an unfair advantage or to disregard the rules,” Laws wrote.

In an e-mail to Delicino, Laws also complained their latest filing was rife with falsehoods, which he hasn’t specified, and threatened to pursue sanctions against defense lawyers if they filed it, which Delicino did on Chilcoat’s behalf Friday.

Claims of retaliation

While the charges ostensibly stem from Franklin closing a gate to the corral west of Bluff last year, the couple’s lawyers believe unseen hands are at play because evidence of their guilt is purely speculative. They point to Lyman, the outgoing county commissioner who is expected to win election to the Utah House seat occupied by retiring Rep. Mike Noel.

In a string of social media posts last year, Lyman laid out his theory that Chilcoat was bent on depriving the cattle of water while the couple were spending a weekend in Bears Ears National Monument and wrote that Odell should recover $6 million in damages.

Lyman’s posts also blamed Chilcoat’s activism for his prosecution, as well as the prosecution of other “innocent” Blanding residents, including those who cut an ATV trail through Recapture Canyon; those suspected of illegal artifacts trafficking; and even the local sheriff, according to a declaration filed by Cassell’s investigator Greg Rogers.

Lyman did not respond to an email from The Salt Lake Tribune seeking comment.

The case arose when Odell detained the couple at his corral on April 3, 2017, after he recognized their vehicle from trail-camera images shot at the time the gate was closed two days earlier.

The sheriff deputies who responded to the confrontation, however, concluded there was not much evidence of crime, according to body-cam audio of a deputy’s conversation with supervisors.

“I think all we’d have is probably just trespassing, I don’t even think it is criminal trespassing if it wasn’t done with malice,” Deputy Rob Wilcox told responding officer Jay Begay. The deputy let Chilcoat and Franklin leave without writing any citations and the couple believed that was the end of the matter.

“And yet, after the matter was reviewed by the County Attorney’s Office, the result was multiple felony charges against both Ms. Chilcoat and Mr. Franklin,” Delicino wrote in the responding brief filed Friday.

‘Wired’ plea

The case took another strange turn Thursday, when Chilcoat accepted prosecutors’ offer to dismiss the charges against her, which carried the possibility of 21 years behind bars. The day before, Laws emailed a settlement offer to defense lawyers that agreed to reduce the felony against Franklin to a misdemeanor.

“If this case proceeds to trial, I intend to place, on the record, statements from your clients acknowledging that they have been informed of the offer presented here,” Laws wrote to Delicino, indicating he would use the offer against Chilcoat and Franklin at trial if they rejected it by the Friday deadline.

Delicino promptly accepted the offer on Chilcoat’s behalf. But Laws wrote back saying his offer was predicated on Franklin pleading guilty to misdemeanors, even though his email did not make it clear that his offer was a “package deal.”

The prosecutor’s reply stunned defense lawyers. Such multiparty plea arrangements, known as a “wired” plea, must be handled with care because they can induce a false guilty plea, especially when the co-defendant to get lenient treatment is a family member, according to Delicino.

“The Court should not lightly infer that a plea offer is a ‘wired’ offer without specific language to the effect. Wired pleas must be carefully constructed to avoid unconstitutional coercion,” he wrote in a follow-up motion asking the court to dismiss the charges against Chilcoat.