Court orders state mental exam in Vail murder case |

Court orders state mental exam in Vail murder case

Lauren Glendenning
Vail, CO Colorado
NWS Rossi Hearing 1 DT 12-30-09

EAGLE, Colorado – Richard “Rossi” Moreau is not using an insanity defense for charges he faces in the Nov. 7, 2009, shooting at the Sandbar in West Vail, but the subject of his mental health remains a hot topic among both prosecution and defense attorneys.

District Court Judge R. Thomas Moorhead ruled Wednesday that Moreau, who is charged with eight felonies including first-degree murder for the death of Carbondale man Dr. Gary Kitching, must receive a mental health evaluation at a Colorado state mental health facility. The ruling sided with a District Attorney’s Office motion filed Tuesday asking for the court to order the evaluation.

The motion states that a defendant is required to undergo a court-ordered examination before introducing any expert opinions regarding mental condition – opinions that public defender Dana Christiansen has said would be submitted in the trial.

Mental health experts retained by the defense have caused months of delays in pre-trial hearings and two delays of the trial itself. The trial was originally set to begin in September 2010 and was postponed until this February, and then postponed again to begin this July.

Public defenders Christiansen and Reed Owens told the court in December that evidence of post traumatic stress disorder would be presented at trial, which is why District Attorney Mark Hurlbert and Deputy District Attorney Steven Mallory filed their motion for the court-ordered evaluation.

They cite a Colorado statute that says “regardless of whether a defendant enters a plea of not guilty by reason of insanity, the defendant shall not be permitted to introduce evidence in the nature of expert opinion concerning his or her mental condition without having first given notice to the court and the prosecution of his or her intent to introduce such evidence and without having undergone a court-ordered examination.”

Christiansen argued for about 20 minutes that the statute is unconstitutional in that it strips Moreau of his Fifth and Sixth Amendment rights. He argued that Moreau has a right to avoid self-incrimination, which Christiansen said would be taken away should Moreau have to submit to the court-ordered evaluation.

“It makes sense when a person is pleading not guilty by reason of insanity to require they be seen by a state hospital. … This is not the case with the defense that Mr. Moreau is raising. The requirement that he go down and submit to this is disproportionate to the ends (the requirement is) serving to promote,” Christiansen said.

Hurlbert said Christiansen was acting “intentionally obtuse.”

The statue is clear and straightforward, Hurlbert told the court. The state evaluation cannot be used by the prosecution to establish guilt in the case – it can only be used to rebut statements made by the defense’s two mental health experts.

That fact cast doubt over whether the defense would still call its two mental health experts as witnesses. “Given what the court may rule, we may not wish to proceed along that avenue,” Christiansen said.

Hurlbert said the court-ordered evaluation was a choice – that the defense could either withdraw their mental health experts as witnesses or submit to the state evaluation.

Moorhead told both Hurlbert and Christiansen that he expects briefs from each of them within seven days outlining their opinions on what advisement they believe the court is required to provide based on Wednesday’s ruling for the court-ordered evaluation. Hurlbert said he would also respond to a defense motion requesting sanctions within seven days.

The case heads back to court Feb. 7 at 1 p.m.

Community Editor Lauren Glendenning can be reached at 970-748-2983 or

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