Caplis and Silverman didn't challenge Voorhis supporter's false claim that judge "skipped over" allegations of Denver DA's office misusing database

Summary: On the February 5 broadcast of 630 KHOW-AM's The Caplis & Silverman Show, guest Mike Riebau, a retired federal immigration agent, discussed the prosecution of agent Cory Voorhis and asserted that a U.S. district judge in a recent hearing had "skipped over" allegations that the Denver district attorney's office inappropriately accessed a national crime database, as Voorhis is charged with doing. Co-hosts Dan Caplis and Craig Silverman failed to mention that the judge in the case reportedly ruled that the DA's office looked up the information "for a 'legitimate use.' "

Discussing the prosecution of federal immigration agent Cory Voorhis on their February 5 630 KHOW-AM broadcast, co-hosts Dan Caplis and Craig Silverman failed to challenge the assertion of their guest, retired immigration agent Mike Riebau, that during a recent court hearing, a federal district judge "skipped over" allegations that the Denver district attorney's office inappropriately accessed a national crime database -- as Voorhis is charged with doing. Caplis and Silverman did not point out that in fact, during the hearing on the defense's motion to dismiss the charges, U.S. District Judge John L. Kane said that an employee in the Denver DA's office had looked up information on the National Crime Information Center (NCIC) database "for a 'legitimate use,' " as the Rocky Mountain News reported on February 6.

Moreover, after reporting on February 6 that the case against Voorhis is "set for trial in March" after Kane "declined to dismiss misdemeanor charges against him," The Denver Post further reported that "Kane said employees at the Denver DA's office who accessed the database engaged in a 'legitimate use of NCIC.' " The Post also quoted Kane as saying, "The Denver district attorney's office was responding to actions precipitated by the defendant in this case."

Voorhis, a U.S. Immigration and Customs Enforcement (ICE) agent, has been accused of illegally accessing the NCIC database to obtain information that the gubernatorial campaign of then-U.S. Rep. Bob Beauprez (R) used in an October 2006 television ad attacking the record of his opponent, now-Gov. Bill Ritter (D), as Denver district attorney. Voorhis' supporters -- including Riebau, who serves as a "[c]onsultant" to Voorhis' legal defense fund -- have since claimed that the Denver DA's office also improperly accessed the NCIC database, and his attorneys have argued that Voorhis is a victim of "selective prosecution," according to the News. As the February 6 News article reported:

Voorhis' attorneys argued that the charges should be dropped because Voorhis is the target of a selective prosecution. They said others who looked up the same information weren't charged with a crime.

In a daylong hearing Friday, three employees of the Denver District Attorney's Office said a staffer used the same database in October 2006, after Beauprez, a Republican, ran an attack ad against his opponent, Democrat Bill Ritter.

The ad accused Ritter of giving illegal immigrants plea deals when he was the Denver district attorney.

But prosecutors say the DA's office was using the database for a legitimate work purpose -- to answer questions from the media and the Ritter campaign about the veracity of the ad. Their actions were not illegal, prosecutors have said.

Contrary to Riebau's claim that Kane "skipped over ... other things such as the Denver DA's office not doing anything wrong, that they were entitled to run this [NCIC] check," the News further reported:

To prove a selective prosecution, defense attorneys needed to present evidence that others in a similar situation are not generally prosecuted, and that the decision to prosecute Voorhis was discriminatory, or based on a factor such as race or religion, Kane said.

The defense proved neither of those things, the judge ruled Tuesday.

Kane said the employee in the DA's office was looking up information for a "legitimate use." [emphasis added]

The Post similarly reported:

Voorhis' attorneys presented testimony that others, including employees of the Denver DA, had accessed the same database for information on [illegal immigrant Carlos] Estrada-Medina and may have used it to help Ritter's campaign defend against the ad.

Denver DA employees have said they can't recall whether they told anyone what they learned from the NCIC about Estrada-Medina, but insist that no one from the Ritter campaign asked them to access the database.

Kane said employees at the Denver DA's office who accessed the database engaged in a "legitimate use of NCIC."

"The Denver district attorney's office was responding to actions precipitated by the defendant in this case." [emphasis added]

From the February 5 broadcast of The Caplis & Silverman Show:

RIEBAU: Well, the closing arguments by the defense and prosecution were given after the last witness, FBI agent John Elvig, testified and finished up his testimony. The defense maintained that the Denver DA's employee was similarly situated with Cory. That was one of the key points here, but Judge Kane did not agree with this in his final ruling, because Cory is a federal agent, and found that the government was also not retaliating or punishing Cory by charging him. The biggest issue, the way I saw it was, Dan and Craig, is that Kane made it perfectly clear that there's a separation-of-power issue here, between the executive branch and the judicial, with which he is part of. And he didn't want to apply any type of influence on the executive branch's discretion. He maintained -- and he used the word -- the judicial branch can "chill" law enforcement's ability to enforce the law. So I think he was weighing very heavily on this particular issue, and he skipped over, you know, other things such as the Denver DA's office not doing anything wrong, that they were entitled to run this check. He also maintained that Cory acted on his own to contact Beauprez's office, and Cory was indifferent to the outcome of the election, but believes some of the information he was providing to the Beauprez office may be used in the campaign. So he weighed all this, and he just came to the conclusion that the defense did not meet the burden, and denied the motion.

SILVERMAN: Mike, those are two of the most powerful words in criminal justice, "prosecutorial discretion." And you were an agent for 33 years, you know something about it, and I appreciate your friendship with Cory Voorhis.

—C.H. & J.F.B.