The Fourth Judicial District intends to move forward on a felony charge filed against state Sen. Pete Lee, despite District Attorney Michael Allen’s office acknowledging it presented incorrect information to a grand jury.

Allen’s office in a tweet Wednesday said despite receiving an update on a key part of information cited by prosecutors, “the evidence continues to support a determination that probable cause exists to reasonably believe the defendant committed the crime charged in the indictment.”

2022CR4096 (Mr Lee) Despite this correction from the Colorado Supreme Court Attorney Registration Office, the evidence continues to support a determination that probable cause exists to reasonably believe the defendant committed the crime charged in the indictment.

— 4th Judicial DA (@4thJudicialDA) September 21, 2022

Lee, D-Colorado Springs, was indicted by a grand jury in August for felony misrepresentation of his residency for voting purposes. 

Lee’s attorney, David Kaplan, on Tuesday filed a motion seeking to have the indictment dismissed. Kaplan sough that dismissal based on incorrect information presented to the grand jury by an investigator in Allen’s office.

That incorrect information came from the Colorado Supreme Court’s Office of Attorney Registration. The office submitted an affidavit in August to Allen’s office, stating that Lee had changed his address in Dec. 2019. Lee had filed registration paperwork on that date but had not changed his address, listed as a property on North Sheridan Ave. in Colorado Springs.

The information from the Attorney Registration office was prominently cited at least five times during the grand jury hearing by Investigator David Guest, in exhibits and PowerPoint presentations. Kaplan said in his Sept. 20 motion that the information was presented “with great emphasis…these misstatements and erroneous facts … are not peripheral to the charges sought,” Kaplan said in the motion. “They are a material misrepresentation of the facts used to obtain an indictment.”

“It irreversibly taints their deliberations and creates a fatal flaw in the indictment,” the lawyer added.

The Office of Attorney Registration notified the court about the erroneous information on Sept. 15 and corrected it in an affidavit submitted on Sept. 17, according to Allen’s spokesman.

Lee declined to comment on Allen’s statement.

The charge approved by the grand jury on Aug. 3 is a class 5 felony. Conviction on a class 5 felony carries a potential sentence of one to three years in state prison with the further possibility of $1,000 to $100,000 in fines, with a two-year parole period.

The indictment sought by Allen said Lee — a Colorado Springs Democrat identified by his legal name, Sanford Edmund Lee — voted in the state primary on March 3, 2020, and in the general election on Nov. 5, 2019, using “false information” about where he lives. The felony charge applies only to the March 2020 vote; the grand jury, according to Kaplan’s motion, did not return an indictment on the Nov. 2019 claim.

Lee listed the North Sheridan Ave. home as his mailing address for his last run for office, in 2018 and it is where he is registered to vote. The home is in Senate District 11, which he represents. Another home Lee owns, on West Cheyenne Road, is in Senate District 12, which is represented by Republican state Sen. Bob Gardner. 

Lee is ineligible to run for a second term in the state Senate due to redistricting that put him into Gardner’s district. Since Gardner was last re-elected in 2020, the most recent election, state law dictates he will finish out his term. Gardner is term-limited in 2024.

The next hearing on the case is Oct. 18.