Cynthia Coffman and Mitch Morrissey sued over post-conviction reviews

Colorado’s Attorney General and Denver’s District Attorney are hiding records from a $2.6 million project to identify wrongful convictions, according to a lawsuit filed this morning.

The plaintiff’s concern: That prosecutors likely rejected cases that warrant DNA testing.

The Justice Review Project was a joint, federally funded effort between the AG’s and Denver DA’s offices. Between 2010 and 2014, their staffs were supposed to carefully scrutinize the cases of prisoners convicted of certain violent crimes to determine if DNA tests might show some are actually innocent.

Out of about 5,000 cases eligible for review, prosecutors running the project deemed only one to be worthy of testing — and only after a privately funded DNA test already had shown that the defendant, Robert Dewey, was likely innocent of the murder for which he was convicted. The Colorado Independent has learned that if the Justice Review Project hadn’t made a special exception to consider Dewey’s case, its own criteria not to review cases in which DNA evidence already had been tested would have disqualified it for further testing.

That revelation raises questions about the thoroughness of the project and about how many other potential innocence cases the teams of prosecutors may have passed over. It also raises questions about the state’s assertion that having identified only one wrongful conviction out of about 5,000 convictions affirms the integrity of all those other cases and “is a validation that the Colorado criminal justice system is robust and serving the ends of justice.”

“The AG’s position is that taxpayers shouldn’t have access to the fruits of an investigation that cost millions of tax dollars, an investigation that sure seems to have been bungled,” said Boulder civil rights attorney Elizabeth Wang. “The claim that only a single case out of over 5,000 merited DNA testing — and that, therefore, the Colorado justice system is serving the ends of justice — is very difficult to believe, and the only way for taxpayers to know is to see the records.”

Wang works with The Exoneration Project, a University of Chicago-based group that advocates for the wrongfully convicted nationally. In the interest of finding out whether Colorado’s four-year, prosecution-run conviction review effort was, as officials touted, “a model for such projects,” she asked for its records.

The AG’s and Denver’s DA’s office agreed to disclose some of what Wang is seeking. But both have withheld thousands of documents that could shed light on their nearly rubber-stamp decisions not to pursue DNA testing. Both offices cite concerns about the confidentiality of defendants, victims and witnesses in refusing to make public the project’s reports on the rejected cases, as well as other records both Wang and The Colorado Independent requested under Colorado’s open records laws.

On behalf of The Exoneration Project, Wang sued in Denver District Court this morning, naming Attorney General Cynthia Coffman and District Attorney Mitch Morrissey individually as defendants. Morrissey led Denver’s DA’s office at the time of the four-year Justice Review Project. But Coffman, who took office in January 2015, had no direct involvement in the project, which was overseen by her predecessor, John Suthers.

Today’s lawsuit asks the court to order both offices to hand over the documents.

“The public has a strong interest in knowing how and why inmates were rejected for further testing under the JRP,” reads Wang’s legal complaint. “The public has a right to know how the money was spent, whether it was well-spent, and whether the assertion by these offices that the JRP is proof that prosecutors ‘do an excellent job of getting it right the first time’ is correct.“

Morrissey’s office said “we would not be able to comment on a lawsuit filed today.” Coffman’s office said it doesn’t comment on litigation. For his part, Suthers — now mayor of Colorado Springs — said through a spokesman that, “The Justice Review Program was very effectively conducted by great professionals in the AG’s Office.”

The project launched in 2010, the same year Larimer County and the city of Fort Collins agreed to pay DNA exoneree Tim Masters $10 million in settlements after the wrongful murder conviction for which he spent a decade behind bars. For many Coloradans who followed Masters’ ordeal, his case rattled faith in prosecutors’ commitment to do justice.

The project’s purpose was to examine the cases of inmates convicted of certain violent felonies – forcible rape, murder and manslaughter — to determine if any of them could be exonerated by new DNA testing. The $2.6 million in federal Justice Department grants went jointly to the Denver DA’s office, which was responsible for reviewing convictions in Denver, and the Attorney General’s office, which was responsible for convictions in all 63 other Colorado counties.

Legal interns and staff in both offices were supposed to read court documents, trial transcripts and court decisions in the nearly 5,000 cases eligible for review. Their reports were then reviewed by a supervising attorney to decide whether a case merited presentation to the “Case Review Panel.” That panel was the only part in the whole process that included representatives from the defense community.

The panel convened only once – about Dewey’s case. At no other point in the four-year project was another of the nearly 5,000 cases presented to the panel for a vote on whether there should be further DNA testing.

By agreeing to test evidence from only one case in 5,000, the project fell far short of the goal it put forth to the Justice Department to pursue testing in one percent of the cases, or 50 convictions.

The Justice Review Project was, in practice, an exercise in rejection.

The AG’s and DA’s offices weeded out all cases in which defendants admitted any sort of involvement. That excluded from consideration cases where confessions may have been coerced or later withdrawn. Reviewers also disqualified cases in which there was no DNA evidence, or in which evidence previously had been DNA tested. Records show many cases also were disqualified because reviewers decided, for whatever reason, that DNA “could not exonerate” them.

“Without the case review reports, the public cannot know whether this claim has any merit,” Wang’s lawsuit reads.

As Wang and others who’ve helped exonerate the wrongfully convicted tell it, the project’s review criteria ignore important truths about innocence cases. About 15 percent of exonerations in the U.S. involve defendants who pled guilty to the crimes for which they were convicted. And DNA technology has improved so radically over the past two decades that evidence that once was inconclusively tested now can be tested with far more conclusive results.

Dewey’s evidence is a case in point.

He was sentenced to life for a 1996 rape and murder in Mesa County. Key evidence in the conviction was a Texaco shirt that belonged to Dewey. Prosecutors claimed it bore the victim’s blood. That blood was DNA tested in 1995, but the results were inconclusive.

Danyel Joffe, Dewey’s state-appointed lawyer, worked for 11 years to help prove his client’s innocence. In 2009, she convinced the Innocence Project in New York to pay for testing of DNA extract left over from the first DNA test. It found that the blood on the shirt was Dewey’s, not the victim’s.

Joffe brought those test results and a host of other evidence and legal work to the attention of the AG’s staffers working on the Justice Review Project. That approach was markedly outside of the project’s normal protocol, whereby it sought to identify innocence cases on its own or through specific forms filled out by prisoners. Still, the project ordered and paid for more DNA testing in Dewey’s case, which resulted in his 2012 exoneration.  

Though she appreciates the project’s help speeding up a legal process she says would have taken her at least twice as long, Joffe says she could have secured Dewey’s exoneration alone.

She questions the criteria the project used to reject cases for review.

“Based on the fact that prior DNA testing had been done, they would have excluded my client, and that concerns me,” she said. “The reason the case got this far was that I brought it to their attention. I sought them out, they didn’t come, doing the seeking.”

In its final grant report to the feds, the Justice Review Project described Dewey’s exoneration as its “crowning achievement.”

“I don’t doubt it was their crowning achievement,” Joffe said. “But, I don’t think that says a lot for the program if it was just one person, one case.”

She questions the effectiveness of an innocence review project run only by prosecutors.

“Even if they have the best of intentions, they have an inherent bias to protect prosecutions. Asking them to find wrongful convictions is like asking a fox to guard the henhouse,” she said.

Joffe isn’t alone in her skepticism.

Maureen Cain, policy program director with the non-profit Colorado Criminal Defense Institute, said, “While I have respect for the attorneys from the AG’s office involved in this project, I question now, as I did at the time, if prosecutors are the best people to recognize innocence.”

In litigating the open records issue, Wang is challenging Coffman’s and Morrissey’s confidentiality concerns. Given that the convicts whose cases were reviewed were either tried or entered a guilty plea in open court, their names and the names of witnesses and victims contained in the case review reports are a matter of public record, she argues. For the protection of sexual assault victims, their names easily could be redacted.

“There is no confidential information in these documents,” Wang said. 

She and her law firm represented The Independent earlier this year in a lawsuit against the City and County of Denver for videos of a mentally ill homeless man being fatally restrained by deputies in the city jail. The Independent dropped the suit after the city released the footage.

As Robert Dewey’s, Tim Masters’ and subsequent post-conviction innocence cases in Colorado illustrate all too painfully, the criminal justice system sometimes fails. Presumably, the point of prosecutors leading a wrongful conviction review process was to recognize their own fallibilities.

But, to the contrary, the message the state sent about the project was that one wrongful conviction found in a stack of  5,000 potential cases is a testament to the justice system’s near statistical infallibility.

“One takeaway is that Colorado’s prosecutors do an excellent job of getting it right the first time,” Attorney General spokeswoman Carolyn Tyler said in a news story in 2014. 

Cain, a longtime policy advocate for criminal defendants and convicts, scoffed at that takeaway.

“I don’t think the fact that they only found one case proves anything at all about whether we have innocent people in prisons.”

Photo credit: fortheloveofcc, Creative Commons, Flickr.