The Washington PostDemocracy Dies in Darkness

Opinion In Colorado, a shocking case of prosecutorial abuse

Arapahoe County District Attorney Carol Chambers in Centennial, Colo., in 2012. (Joshua Lott/Getty Images)

The Colorado Independent lays out the facts in one of the worst examples of prosecutorial misconduct I’ve ever seen in a death penalty case.

The case was prosecuted for six years under former 18th Judicial District Attorney Carol Chambers. Brauchler, her elected successor, has led the office for the last five years as it has continued rallying to preserve [Sir Mario] Owens’ and other death sentences against a long list of appeals claims. Brauchler, a Republican who has made a name for himself as a death penalty prosecutor, is running for governor.
There is no definitive physical evidence, no confession, and no eyewitnesses who identified Owens in a case prosecutors built almost entirely on the testimony of informant witnesses to whom the DA’s office gave plea bargains, funds, or both in return for their cooperation against Owens.
Among the charges upon which the appeal was based is the office’s failure to disclose thousands of dollars in payments it made to informant witnesses. One of those witnesses was promised and later given a district attorney’s office car. Some were given gift cards for local businesses. One received $3,400 in benefits, including cash for Christmas presents in the months prior to testifying on behalf of the prosecution.
The defense cited the prosecution’s failure to disclose other incentives given to witnesses in exchange for their testimony. If he didn’t cooperate, court records show, one of the main witnesses was threatened with being charged for the murders Owens was accused of and with receiving two life sentences. Another witness, according to the records, received a suspension of his jail sentence on the condition that he help prosecutors in Owens’ case. People working for the prosecution would appear at informant witnesses’ court hearings and ask for lesser sentences on the condition that they testify against Owens, the records indicate. Records also show that informants who had been convicted of crimes were allowed to violate probation and commit future crimes without consequences as long as they cooperated.
The appeal argued that by failing to disclose these deals before trial, the prosecution rendered Owens’ defense lawyers unable to cast doubt on those witnesses’ testimonies and put their credibility in dispute. In doing so, the argument goes, Owens was denied a fair trial.

Incredibly, neither Chambers’s successor in the DA’s office (who is defending the conviction) nor the district court judge (who denied the appeal) dispute that informants were paid in cash, lenient sentences and other compensation, and that none of this was disclosed to the defense. And the case gets only more disturbing from there.

  • The withholding of exculpatory evidence continued through the new leadership in the DA’s office. The new DA kept the existing prosecutors on the case. In 2015, two years later, they revealed another file full of secret payments to eyewitnesses in the case.
  • For seven years after Owens filed his appeal, the courts imposed a gag order keeping the appeal secret. According to the Independent, to this day some exhibits are still secret.
  • The judge who oversaw the trial and appeals was apparently growing increasingly skeptical of the state’s case against Owens. That is, until he was abruptly fired by the state supreme court. The firing was apparently over a personnel matter, though the Independent article casts some doubt on that explanation.
  • The new judge ruled on Owens’s appeal “without having seen or heard from a single witness about errors in the capital proceedings.”

Then there is the matter of the original DA, Chambers. She has since left office, but she left quite the record. Among her greatest hits:

  • When the DNA profile for semen taken from a 8-year-old sexual assault victim didn’t match the man local authorities had arrested, Chambers offered a whopper of an explanation: “With the low-cut jeans that girls wear, she could have picked up anyone’s DNA off any surface her panties touched while they may have been riding up above her pants. I hate those low-cut pants,” Chambers said, according to the Denver Post. “Depending on how long she had been wearing those panties and where, they could have rubbed up against the back of her chair at school, a restaurant, the couch at home that someone else had been sitting on, a bus seat, someone’s toilet seat if she did not pull them down far enough — there are many ways to get unknown DNA on clothing. Another kid could have snapped the elastic on her underwear — kids do that sort of thing.”
  • In 2011, the Denver Post reported that Chambers had been offering “conviction bonuses” to prosecutors on her staff who hit her quotas.
  • The same year, Chambers was widely criticized for seeking felony arson charges against two young boys who started a house fire after playing with a lighter.
  • In 2006, she was investigated for allegedly threatening a man who was trying to collect a debt from one of Chambers’s political allies with a grand jury investigation.
  • In 2007, she was again investigated, this time for allegedly threatening a judge she felt ruled against her office one too many times.
  • At one point during her tenure, Chambers was responsible for nearly half the “habitual offender” prosecutions in Colorado, a designation that means a decade or more in prison for crimes that otherwise might earn a year or two at most.
  • Chambers’s office also faced allegations of hiding evidence in the death penalty trial of David Bueno. Those allegations were later upheld by a state appeals court.
  • . . . and in a sexual assault case.
  • After a jury acquitted an Ethiopian woman Chambers’s office had accused of human trafficking, the jury foreman told a local paper, ““In the DA’s office’s agenda to prosecute so overzealously, it seems that the facts of a case aren’t really an objective.”

You get the idea. Colorado is also the state where, incredibly, two judges were recalled by voters after the state supreme court reprimanded them for withholding exculpatory evidence during a murder trial they conducted as prosecutors.