WHEELING - Senior Status Judge Arthur Recht reluctantly granted a motion by the prosecution Tuesday to dismiss one of eight criminal counts against former Wheeling police officer Matthew Kotson, canceling the first of his four scheduled trials.
Recht granted the motion to dismiss one count of second-degree sexual assault against Kotson Tuesday, the same day jury selection for his trial on that charge was scheduled to begin.
In a brief filed in support of the motion in Ohio County Circuit Court, Special Prosecutor David F. Cross states there is insufficient evidence to prove Kotson's guilt beyond a reasonable doubt because "key prosecution witnesses are now making statements inconsistent with what the State originally believed that they would testify to."
Additionally, potential witnesses refused to cooperate with investigating officers, the brief states. Cross Tuesday said he went to great lengths to locate witnesses, utilizing the U.S. Marshals Service to obtain contact information for individuals who now live in Ohio and South Carolina.
"These people won't cooperate," Cross said of the potential witnesses. "That's why we have the motion. And I don't know what the reason is. No one said there's been any kind of threats or anything like that."
Cross told Recht he considered proceeding to trial with the alleged victim as the prosecution's sole witness to the events of the night the alleged crime occurred.
"I explained to her," Cross said, "that a jury could find beyond a reasonable doubt, based upon her testimony alone, that Mr. Kotson was guilty of the crime charged in the indictment. However, I told her it was unlikely that there would be a verdict of guilty based solely upon her testimony."
Despite granting the motion, Recht expressed his strong disapproval.
"This gentleman," Recht said of Kotson, "as far as this count is concerned, will walk the streets. And that, Mr. Cross, is on the shoulders of the state.
"The (prosecutor's) duty is not to convict," Recht continued, "but to see that justice is done. In my mind, justice has not been done in this case."
Cross said the alleged victim, along with the investigating officers in the case, approved of the motion to dismiss.
"The prosecutor, as the court noted, has an ethical duty not just to win cases, but to do justice," Kotson's attorney, Robert McCoid said. "And sometimes doing justice means doing what the state did today."
The alleged victim told police she was speaking with Kotson at Knotty Pine's bar one evening during the summer of 2007. The woman said she had one drink, then indicated the next thing she remembers is regaining consciousness to discover Kotson sexually assaulting her at an outside area.
According to court documents, the alleged victim spoke with a man at Knotty Pine's days later to ascertain what had happened the night of the alleged crime. That man reportedly told the alleged victim something to the effect of, "Don't look at me, I wasn't the one that put something in your drink," documents state.
That man recently told Kotson's attorneys he never made that statement, and he told law enforcement he never witnessed anyone putting something in the woman's drink.
Recht scheduled Kotson's trial on two counts of first-degree sexual abuse for Sept. 4 with a pretrial hearing Aug. 2. The remaining trials on two counts of second-degree sexual assault, one count of burglary and two more counts of first-degree sexual abuse have not been scheduled.
Kotson remains free on $100,000 bond.