Lawyers seek to dismiss charges (1/21/10)

Molestation suspect ‘tired of fighting courts’

Jan. 21, 2010

By Tim Simard

Observer staff

Public defenders for a man accused of drugging and fondling a 13-year-old girl are asking a judge to throw out two felony charges against the suspect and suppress a key piece of evidence.

Robert Kolibas, 50, appeared in Vermont District Court in Burlington Wednesday morning to hear his attorneys’ dismissal motions. The defense asked Judge Michael Kupersmith to drop the charges of second-degree unlawful restraint and one count of aggravated assault by administering a drug. Kolibas’ defenders also asked the judge to dismiss as evidence a letter that Kolibas wrote to his wife this summer.

Kolibas faces five felony charges related to the case: lewd and lascivious conduct with a child, second degree unlawful restraint, giving a drug to a minor and two counts of aggravated assault by administering a drug. He has pleaded not guilty to all charges.

Police say Kolibas drugged his daughter and the alleged victim by giving them sedative-laced smoothie drinks last May during a sleepover at his home. While drugged, the girl alleges Kolibas fondled her. Urine samples from the alleged victim showed evidence of sedatives in her system.

Furthermore, prosecutors believe Kolibas drugged up to seven other girls beginning in the summer of 2008. Investigators also discovered more than 16,000 images of child erotica on a computer seized from the Kolibas home during the May investigation.

Prosecutors have not filed charges in conjunction with the erotica or other suspected drugging incidents, but hope the evidence will be admissible in trial as “prior bad acts.”

Prior to Wednesday’s motion hearing, Kolibas filed a motion with the court to dismiss his public defenders, Margaret Jansch and Leroy Yoder. Kupersmith gave Kolibas a chance to continue with the dismissal on Wednesday, but Kolibas just shook his head.

“To me, this whole thing is a fiasco and a circus for the media,” Kolibas said.

“Do whatever you want, judge. I’m tired of fighting these courts,” he added soon after.

Kolibas argued in papers filed this month that his defenders have not done enough to help him prove his innocence. According to Kolibas’ motion, the defenders believe his version of what happened the night of the alleged molestation is not “believable” and they have “utterly failed” in keeping him informed on the status of his case.

“(The public defenders) believe that the Defendant is guilty as charged despite his continued arguments to the contrary,” states the court document that requests the dismissal of Kolibas’ attorneys.

For much of the hour-long motion hearing, Kolibas hung his head and did not make eye contact with the judge or his attorneys.

Jansch and Yoder argued before the judge that the charge of unlawful restraint does not apply to what’s in the police affidavit. Court documents state Kolibas held the legs of the alleged victim during the incident so she would not wake his daughter, who was sleeping in the same bed.

Kupersmith appeared to agree with the defense’s take on the unlawful restraint charge. Deputy State’s Attorney Susan Hardin argued the charge is consistent with restricting the girl’s movements.

“Drugging her is a far better argument, but that’s not what’s in the affidavit in relation to unlawful restraint,” Kupersmith said. “But I’ll look at all the evidence.”

Kolibas’ attorneys also asked the judge that a letter Kolibas wrote to his wife — the two are in divorce proceedings, according to Jansch — be dismissed. Jansch argued the letter was of a personal nature and should not be considered evidence. One of the two charges of aggravated assault by administering a drug, specifically in reference to his daughter, stemmed from the letter; Kolibas’ attorneys argued that count should also be dismissed. Jansch also said urine samples from the daughter did not show any drugs in her system.

In the letter, Kolibas tells his wife the drug-laced smoothie drink was meant to calm the woman after an argument. He said he accidently put the sedatives in all the smoothies that night and unintentionally drugged the girls. He also denies fondling the girl. According to court documents, the wife gave the letter to investigators after receiving it over the summer.

Kupersmith will make a final decision on the defense’s arguments at a future court date. Before the end of the hearing, the judge ruled that Kolibas could have no further contact with the three of his four children who are under the age of 18. According to Hardin, Kolibas has written letters to his daughters even though doing so violates his divorce conditions in family court.

“It’s bordering on obstruction of justice,” Hardin said. “When he writes these letters, it’s very disturbing to them. They’ve asked that he stop doing this.”

Kolibas remains held without bail at the Chittenden Regional Correctional Facility in South Burlington.