D.A. Requests - God And The Constitution Of The United States Be Prohibited in Simmons Case

December 15, 2021

By Kelly Moore-Chesney

In the recent case that went before The Honorable JenniLynn Lawrence - of the People vs. Sherry Simmons, District Attorney Matthew Margeson, may have forgotten his oath of office.

On December 6, 2021 just 2 days before the trail of harassment charges against Sherry Simmons, District Attorney Matt Margeson filed a motion with the court. The motion, which is detailed below; is the prosecution's request of allowing Mrs. Simmons no other defense than a general denial.

The trial involved a class 3 misdemeanor charge of harassment by following. Sherry Simmons, along with 5 others, were charged back in January of 2021. The other five took a plea agreement with a deferred sentence. The five at the time of court pleadings did not feel they had the energy or finances to fight the charges. Mrs. Simmons entered a plea of not guilty. At the time of writing this article we cannot find any record of any misdemeanor harassment case ever going to trial in Montezuma County.

Mrs. Simmons has stood her ground, and has maintained from the beginning that she did not harass, did not intend to harass, and was out that day of January 2, 2021 with other patriots exercising their freedoms as per the first amendment of the Constitution of the United States.

January 2, 2021 was a time that many Americans struggled with questions of voting integrity and corruptions of the electoral process. The Patriot group had been seen demonstrating in downtown Cortez Colorado since April of 2020 on civic issues.

The Montezuma County Patriots have been meeting since April of 2020, photos of gatherings and social media post

The Black Lives Matter group, sometimes known as the peace and justice marchers, began marching the streets of Cortez about two months after the Montezuma County Patriots began their weekly demonstrations. Although Ms. Raleigh Cato, Black Lives Matter organizer stated while on the witness stand they begun in May 2020, a social media post celebrates their one year of marching on June 14th, 2021.

Ms. Cato, who helped organize the Cortez Black Lives Matter marchers along with Dawn Robertson, is also a psychologist for the local school district. Ms. Cato stated on the witness stand she helps children- newborns through teens-through her education in psychology.

Witnesses who testified for the prosecution were Raleigh Cato (Marmorstein ) Cortez Mayor Mike Lavey, and Officer S. King, formerly of the Cortez Police Department. Mayor Mike Lavey under oath gave his account of the January 2, 2021 incident, but couldn't remember other details of that time.

Photo from social media from the Black Lives Matter marchers in 2020

Mayor Mike Lavey talks with Sherry Simmons during demonstration January 2, 2021

A letter also part of the prosecutions discovery was from another (Peace and Justice marcher) witness that day. The letter, which did not make it to presented evidence, identifies the Mayor Mike Lavey as the Black Lives Matter Legal Observer on that day. Mayor Lavey denied he was acting as legal Observer for the Black Lives Matter marchers. Mrs. Simmons testified that she had personally witnessed the Mayor taking pictures and videos of her and other Patriots on many occasions.

Officer S. King, now with the Colorado State Patrol, testified he had served the six with a summons for the harassment by following charge. Questioned as to why only 6 people were charged when evidence shows there were at least 12 Patriots demonstrating, he replied they were unable to identify the others. Further questioning as to why Officer King never attempted to ask any of the 6 charged to identify others is still in question.

Mrs. Simmons has repeatedly stated she believes this case to be politically motivated. Mrs. Simmons has publicly called out the Mayor and the Cortez City Attorney Mike Green for questionable policies, violations of the Sunshine Law, and corruption. City Attorney Mike Green was listed as a witness for the prosecution. However, he never took the witness stand, where he would have been subject to cross-examination. Mrs. Simmons said she made multiple requests for a copy of the discovery relating to City Attorney Mike Green as a witness in this case from the prosecution. She never received any.

Mrs. Simmons had paid an attorney a 500 dollar retainer to represent her. The attorney, in less than a week's time frame of accepting payment, told Mrs. Simmons he would not represent her in court. Mrs. Simmons subsequently found out this attorney had met with the man who has housed Black Live Matter organizer Dawn Robertson all summer, only moments before taking her check for 500 dollars.

Mrs. Simmons filed for a continuance while contemplating seeking another attorney. She decided she did not know who she could trust and decided to represent herself. After compiling some evidence of her defense Mrs. Simmons filed a motion, October 5, 2021 with the Court and with the Prosecution to dismiss the case based on her evidence within her motion. The Court denied the motion stating it is the State's decision to dismiss charges and not the Courts.

Mrs. Simmons prepared for the trial while in much prayer and scripture. She knew she was innocent, and she knew without doubt that it is Almighty God who fights our battles. She placed her complete trust in God, while also being thankful for the opportunity to trust Him. Anyone who has a relationship with God and was able to witness the trial proceedings could not deny the Hand of God within the courtroom walls.

The Motion filed by Matt Margeson on Monday December 6th requesting the court to not allow Mrs. Simmons any defense except a general denial was denied by Judge Lawrence on the first day of trial, December 8th. There was also another request to the Court that morning by the Cortez Journal. The Cortez Journal requested to be allowed to video the trial proceedings. The Judge did not allow live coverage but still photos without zoom would be allowed.

On December 9th, which was Thursday of the trial week, Sherry Simmons received an email from Will Furse at 12:01 AM. The email contained another motion from the District Attorney's office. This motion requested the Judge to reconsider her ruling on the first motion. The prosecution wanted the defendant not to have any defense but a general denial, including to not allow the Constitution Of the United States First amendment, and to Admonish Mrs. Simmons from speaking about or to God.

In the Motion to dismiss filed in October by Mrs. Simmons, evidence was provided about Prejudicial Prosecution and possible Overzealous Prosecution (Overzealous prosecution refers to someone instituting legal proceedings against a defendant for criminal behavior with the intention to support an excessive enthusiasm for some cause, rather than with any genuine basics for the suit.)

The evidence in this motion was a police report and an email from Will Furse, then the elected District Attorney for Montezuma County. The police report (CAD#12002362) was written on September 11, 2020. The report reads Mrs. Simmons while at a dedication ceremony for the Veteran Parks a woman came up to her vehicle. screaming foul language, and began pounding on it with a cane. After many pleas asking the woman to stop, Mrs. Simmons called for help from the Cortez Police department, via 911. Mrs. Simmons told the woman the police were on the way, it was then the woman started walking fast towards the intersection. Mrs. Simmons followed behind her, telling the woman she needed to stop until the Police arrived. As they reached the intersection the woman turned around and swung the cane, hitting Mrs. Simmons hand, attempting to knock the phone out of her hand. The report also states by the reporting Officer Loggains, "I informed Melva ****that going out of her way to antagonize someone is considered harassment. Officer Moran advised Melva she had been accused of striking Sherry with a cane. Melva denied the accusation and continued to get more irate while being questioned about the incident."

This report went to the District Attorney's office.

When after sometime had passed without hearing about her attack, Mrs. Simmons made inquiry to the DA office as to what was going on with her case. She received an email from Will Furse which read "this is not an instance of unlawful conduct based on the evidence I have been presented". Strange, that a case which involves a strike kick or shove and or following a person about public places is not unlawful, when Mrs. Simmons was attacked.

The trial was full of interruptions from the prosecution. Both defense and prosecution were called to the bench before the Judge over a dozen times. The prosecution started off with a large poster board which had the Law in which Mrs. Simmons was charged with. The prosecution brought forth another large board of a enlarged photo of Mrs. Simmons. In the opening statements for the prosecution the law of following with intent to harass was repeated.

The prosecution had previously endorsed over a dozen witnesses, but only called 3 to the witness stand. Mrs. Simmons chose not to endorse witnesses in her defense. She said "this case is about me, I don't want to have anyone drugged through the mud or give the Journal an opportunity to hurt someone. The Journal has been far less than kind or accurate to the Patriots". After the three witnesses were cross examined by both the prosecution and the defense, the Judge asked Mrs. Simmons if she had any more for her defense. She said she did not. Judge Lawrence then told her she had the right to testify but was not obligated to do so. Mrs. Simmons asked for a few moments which the Judge granted. After talking with some of her friends who sat behind her during trial, she addressed the court and stated she would take the stand in her own defense. Mrs. Simmons and her friends had discussed that taking the witness stand would be the only way to present the evidence she had for her defense. The time was near 5pm on Thursday, so the Court ordered the trial would reconvene the following morning, Friday December 10th, at 9am, and that Mrs. Simmons would take the witness stand.

The following day Sherry Simmons was sworn in and took the witness stand. As she gave her account of the events on January 2nd, she would pause at points and asked to show evidence. She rose from the witness stand and walked over to the defense table and presented evidence. She would then return to the witness stand and continue with her statement. Mrs. Simmons played an interview recording of Officer King and a woman named Patricia Coen, listed as a witness for the prosecution.

Patricia Coen was the first Black Live Matters protester to arrive on the sidewalk. The video showed her walking through a group of Patriots who were holding flags. In the video Patricia held a sign which read "Hate is not Patriotic" on one side and "All lives matter when black lives matter" on the other. She held a can of wasp spray in her hand and a can of bear spray around her waist. She marched down through the patriots who were scattered along m Main Street. Mrs. Simmons had played the video to show how the mood was being set, and how the sworn witness Raleigh Cato had denied any other protesters being out first. Ms. Cato had told the jury no other marchers were out before her.

Photo of Patricia Coen from Video, the first BLM marcher to arrive on Main street -

on January 2, 2021

Mrs. Simmons took the stand again and continued to tell her account of the encounter with the Mayor. She then presented a video which showed the Mayor talking with her at the time in question. (Video link can be found below the article) Mayor Lavey while previously on the witness stand said he did not remember talking with Mrs. Simmons. Mayor Lavey under oath testified of his account of this day but did not remember talking with Mrs. Simmons.

At closing arguments the Prosecutor began to play her video again but had difficulty with it. Mrs. Simmons closing arguments detailed the Prosecution's repeated attempts to deny her defense other than a general denial. She recounted the events of the prosecution requesting the court to admonish her from talking about God or praying. She recapped the prosecution asking the court not to allow her to bring forth the First Amendment of the Constitution of the Unites States.

Mrs. Simmons told the Jury:

"I am not sure at what point in the history of Court procedures that they evolved into much like a chess game where it became more important to block moves of opposing sides than the importance of presenting fair and justified evidence . I chose to represent myself because of circumstances that caused me believe it was the only way to get a fair representation. I knew there were certain risks that I was taking."

Mrs. Simmons also included in her closing statement Glory to God as she spoke to the jury: "As you deliberate on this case, please be mindful that the prosecution on Monday, only days before this trial began attempting to deny me my right to defense, asking the Court that my only defense allowed be a general denial, my constitutional right be denied, and requested the court to admonish me from speaking to or about Almighty God. To God be the Glory the Prosecutions motion was denied. Yesterday before we began, the Prosecution challenged the Court's decision and once again asked the Court to reconsider restricting my right to defense. The Court stood on its decision and to God be the Glory it was denied."

In the closing of her statement, Mrs. Simmons asked the jury to consider some very important questions:

"Did the Prosecution prove guilt beyond doubt, did the Prosecution prove the defendant had intent to harass? Is simply protesting with counter protesters harassment?. Is simply marching in front of, in the middle of, or behind of, counter protesters a crime?

Why did the prosecutor attempt just days before this trial to deny me the right to defend myself?

Why did the prosecutor just days before this trial, attempt to deny you the jury the right to see my evidence?

Thank you for your service to this community and the consideration of the pursuit of freedoms of liberties and Justice".

The Prosecution had the opportunity to speak after Mrs. Simmons closing statement. The Prosecution objected to Mrs. Simmons claim of attacking the Constitution.

The Jury was then advised by Judge Lawrence and dismissed to go into deliberations. The Jury came back with their verdict in about 15 Minutes.

Judge JenniLynn Lawrence asked Mrs. Simmons to stand while she read the verdict. The silence in the courtroom was like a sheet of ice, Judge Lawrence read .".the jury finds the defendant not guilty..."

Mrs. Simmons had been acquitted of the charge, she turned with tears in her eyes and hugged her friends behind her. Mrs. Simmons remembers saying to them "God Is so Good, Praise God". Mrs. Simmons and her friends waited before leaving the court room. They all wanted to be sure the reporters had left. Mrs. Simmons recounted how blessed she was with her friends who stayed with her through this ordeal. She said they all prayed together in the parking lot each time before entering the Court House. She expressed her overwhelming joy that it is God who fights our battles and he is faithful and true.

Will Furse of the District Attorney's office told the Journal news outlet they plan to appeal, claiming reasons about the jury instructions given to the jury before deliberations. The jury instructions given to the jury by Judge Lawrence were discussed before, while the jury was absent in the court room. Judge Lawrence sent defense and prosecution the instructions via email and openly discussed with both of them. After some objections by the Prosecution, some wording was changed. Judge Lawrence then asked if there were any more objections to the Jury's instructions and the defense and prosecution said no objections. The Prosecution had no objections to the revised jury instructions but after losing their case now wants to challenge the Court. The prosecution had no further objections and approved the instructions which were given to the jury by Judge Lawrence. To come back after their loss might seem as a desperate move to save face.

The Prosecution in this case, by approving the jury instructions, leave little or no recourse as to what they may state to challenge. The Constitution of the United states of America also has an Amendment, double jeopardy- the Fifth Amendment:

"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation".

The Prosecutions attack on the Constitution of the Unites States through out this case has been to say the least, disturbing. One needs also to take into consideration the Oaths which are taken by the Prosecution before they take office and into the BAR association. The Colorado BAR associations Oath of Admission reads:

Colorado

"I DO SOLEMNLY SWEAR by the Everliving God (OR AFFIRM) that:

I will support the Constitution of the United States and the Constitution of the State of Colorado; I will

maintain the respect due to Courts and judicial officers; I will employ only such means as are consistent

with truth and honor; I will treat all persons whom I encounter through my practice of law with fairness,

courtesy, respect and honesty; I will use my knowledge of the law for the betterment of society and the

improvement of the legal system; I will never reject, from any consideration personal to myself, the

cause of the defenseless or oppressed; I will at all times faithfully and diligently adhere to the Colorado

Rules of Professional Conduct"

We must also take into consideration a second Oath of office also sworn to, by our elected District Attorney Matthew Margeson. Another sworn Oath to uphold the Constitution of the Unites States. Our District attorney swore an oath to uphold the Constitution not to work to deny the right there in.

At some point one must question where the goal of a win in court became more important than justice. Justice, true and honest should be the goal for the prosecutors in every court case. We may also question how many other defendants in Montezuma county were victims of a Prosecutor's personal gain, where justice was not the end goal, where some deal was made in a backroom to give glory to the DA's office at the expense of a defendant. Notches on the belt of the Montezuma County Prosecutors may indeed shout of other injustices. Our court rooms have been designed for fair and just procedures. This is the job and duty of the prosecution. Their requirements is of a fair and just process, not to seek to hide defense but to examine all legal elements.

The remarks from the District Attorney's office by Will Furse question the integrity of justice and illuminates the quest for self gain by wins and not justice.

Below is the document filed by the District Attorneys office December 6, 2021:

PEOPLE’S NOTICE OF PRO SE DEFENDANT’S FAILURE TO ENDORSE WITNESSES

& DEFENSES AND PEOPLE’S MOTION IN LIMINE REGARDING SAME

COMES NOW Matthew Margeson, District Attorney, by and through Deputy District Attorney Jessica Salem and hereby provides it Notice and Motion in Limine as follows:

1. Per the Court’s Trial Scheduling Order and CRCP Rule 16, Part II(c), the defendant was required to submit a list of endorsed witnesses and defenses no later than 21 days prior to trial. It is now two days before trial and the People have not received the defendant’s disclosures.

1. The People can therefore only presume the defendant will not be calling any witnesses nor will argue any other defense other than “general denial” at trial.

1. Based on above, the People move this Court for a pre-trial order precluding the defendant from arguing any defense beyond that of a general denial.

1. The People believe the defendant may wish to rely on the United State Constitution – specifically the First Amendment – when attempting to avoid criminal liability in this matter.

1. The offense at bar does not provide for an affirmative defense nor has the defendant attempted to challenge the constitutionality of CRS 18-9-111(1)(c) (“Harassment – Follow Person in Public Place). Therefore, the People move for a pre-trial order precluding the defendant from arguing for any perceived relief the “First Amendment” may provide.

1. The People assert the alleged offense includes a requisite mens rea plus a physical act (not speech), as the basis for criminal liability. Permitting the defendant to argue its actions are Constitutionally protected serves as an illegal and inappropriate affirmative defense. This type of argument is also one purposed behind jury nullification. The People therefore move this Court to expressly preclude the use of this defense at trial.

1. The defendant has also failed to provide an endorsed witness list. The People therefore move this Court to preclude the defendant from calling witnesses at trial based on fundamental fairness.

1. Finally, the People are aware of the defendant’s prior use of religious prayer in public meetings. While the People maintain respect and appreciation for the defendant’s faith, the use of prayers and expressions of religious devotion are inappropriate within the courtroom. Any type of communication to the court, the People, a witness, or juror is irrelevant per CRE 401, 402, & 403. Accordingly, the People move the Court to admonish the defendant prior to jury selection to prevent this kind of prejudicial and irrelevant communication.

DATED this December 6, 2021

MATTHEW MARGESON

District Attorney

By: /s/ Jessica Salem Date: 12/6/2021

Jessica Salem, Temp. Reg. # 21PPA0745

Deputy District Attorney

Below are the links to Videos presented By Sherry Simmons in her defense