With 17 years of experience in criminal defense, Durango defense attorney Brian Schowalter explained that under Rule 702 of Colorado statutes, a foundation would have been required to deem a witness as an expert. In regard to the testimony calling Nowlin\u2019s credibility into question at the motions hearing, Schowalter described it as lay testimony under Rule 701.<\/p>\n
\u201cA lay person can testify regarding opinions and inferences if the testimony is rationally based on the perception of the witness, is helpful to a resolving the witness testimony or a fact in issue and it\u2019s not based on scientific, technical or specialized knowledge,\u201d explained Schowalter.<\/p>\n
Schowalter said he was unable to comment if the testimony provided by the three defense attorneys had any bearing on the outcome of the case.<\/p>\n
\u201cSo these three witnesses had some experience with Nowlin,\u201d said Schowalter. \u201cWhat that experience was, I don\u2019t know, but it was sufficient enough for the court to permit their testimony.\u201d<\/p>\n
John Baxter, current attorney for Montezuma County, represented the suspect in the 2008 interstate drug\/theft ring that was subject to the motions hearing. After reiterating to Baxter that The Cortez Journal was uninterested in retrying the conviction in the press and concerned about the motions hearing testimony and its impact on the current sheriff\u2019s race, he again refused to comment \u2013 on the record when contacted a second time on Friday, Sept. 19. The Journal first questioned Baxter about the motions hearing testimony in a courthouse hallway in late August.<\/p>\n
Schowalter, who represented a co-defendant in the case, said it was \u201creasonable to assume\u201d the jury disregarded any similar, if provided, trial testimony, citing the conviction was subsequently upheld up an appellate court.<\/p>\n
\u201cObviously Nowlin\u2019s testimony [at trial] was important, or the defense would not have felt the need to attack his credibility in such a manner,\u201d said Schowalter.<\/p>\n
Under Rule 608, the credibility of a witness may be attacked by evidence in the form of opinion or reputation. Schowalter explained the three criminal defense attorneys that testified at the motions hearing would have been unable to provide specific instances of conduct that supported their opinion at trial. If similar testimony was provided at trial, Schowalter said jurors would have decided the relevance.<\/p>\n
\u201cThe only people who will be able to tell you whether it affected the outcome of the trial are the jurors,\u201d he added.<\/p>\n