Colotl is a former Kennesaw State University student who was charged with felony false swearing after being booked into Cobb Jail on a traffic charge in 2010. At the time, she was in the country illegally, though she has since been allowed to stay, if only temporarily. She was illegally brought to the United States from Mexico as a child.
On Wednesday, the Journal reported that District Attorney Pat Head had responded to an earlier order from Staley in which she refused to sign off on ending further prosecution of Colotl.
In fact, Head was responding to a motion filed Monday by Colotl’s defense lawyer, Jerome Lee, in response to Staley’s order. Lee was arguing that even though Staley did not sign off on ending prosecution, Colotl and Head had made a deal and Colotl had fulfilled her end.
“While this Court refused to grant that (nolle prosequi) motion, that act does not change, nullify, dissolve or otherwise affect the District Attorney’s agreement with the Defendant,” Lee wrote.
His motion also notes that there are no state law obstacles to Colotl’s participation in the pretrial diversion program.
“To entice the Defendant to perform community service and then pay a fine to the State, but then still try the Defendant for the False Swearing charge would constitute a(n) injustice and nothing short of trickery and deception by the State. Indeed, injustice can be avoided only by the enforcement of the State’s agreement with the Defendant — i.e., that the charge against her be dismissed,” Lee wrote.
Judge Staley will now have to decide whether to grant the defense motion that in effect ends the case — as prosecutors and the defense have been trying to do for a year — or deny the motion, which would likely prompt Colotl to appeal.
If the appellate court then reverses a Staley denial, the end result is no further prosecution on the charge. If the appellate court affirms a Staley denial, then the case would go on the trial calendar.