Three men still on Colorado’s death row after judge denies capital appeal

This story has been updated.

A judge today denied a five-year appeal by Sir Mario Owens, a man convicted for the 2005 witness killing of a state lawmaker’s son and his fiancé.

Today’s order leaves Owens, 32, on death row along with two other men: his co-defendant, Robert Ray, and Nathan Dunlap, the convicted Chuck E. Cheese’s shooter to whom Gov. John Hickenlooper granted a temporary reprieve in 2013.

Owens, 32, appealed his conviction and sentence largely on a long list of claims that prosecutors – who paid informant witnesses to testify against him – failed to turn over to the defense team key evidence that, if heard at trial, his lawyers argued may have changed the jury’s verdict. The appeal accused the DA’s office of  “cumulative error” and “outrageous governmental conduct” in the case.

In today’s order denying Owens’ appeal, District Judge Christopher Munch wrote, “The court concludes that Owens received a fair trial – one whose result is reliable. He also received a fair sentencing hearing – one whose result was constitutionally obtained, justified in law, and is rationally based upon the evidence.

In a statement, the District Attorney’s Office of the 18th Judicial District said it “has always believed that Sir Mario Owens received a fair trial” and is “pleased” that Munch agreed.

“I am satisfied and respectful of the court’s findings in these matters,” said District Attorney George H. Brauchler. “I hope this latest step brings some small measure of closure to the victims after all these years.”

As of this posting, The Independent is awaiting comments from state Sen. Rhonda Fields, whose son, Javad Marshall-Fields and his fiancé, Vivian Wolfe, were fatally gunned down soon before Marshall-Fields was expected to testify against Robert Ray in the investigation of another murder a year earlier.

Owens’ lead defense attorney, Jim Castle, disagrees with the court’s conclusion that none of the misconduct claims made in the case matter and that they “can be tolerated in Colorado in any case, never mind a capital one.”

“This is a sad day for Owens, his family and the Colorado criminal justice system,” he said.

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 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.

The rules of criminal conduct say that withholding evidence that could have swayed a jury against a guilty verdict amounts to prosecutorial misconduct. Under Colorado’s death penalty law, it’s one of several reasons to disqualify a case for death penalty eligibility. 

Brauchler’s office didn’t dispute that it withheld much of the evidence Owens’ lawyers listed in their appeal.  Nor did the judge. Instead, both asserted that the evidence that was withheld wouldn’t have changed jurors’ guilty verdict or death penalty decision.

Owens’ lawyers long have countered that the ends don’t justify the means. Prosecutors’ hands need to be clean, the say, especially when a life is at stake.

The case has made headlines because of a string of court orders shrouding much of the documentation and evidence in secrecy. The court file remained sealed and all parties gagged from speaking about it until 2013, seven years after it was filed. Exhibits in the case remain sealed to this day, fueling continued concerns about a lack of transparency.

Most of the claims in Owens’ appeal applied to decisions made before Brauchler won office in 2012 when Chambers was being term-limited out. Brauchler decided to keep the same lead prosecutors on the case, and, under his watch, the office continued a pattern of not disclosing evidence. In February 2015, more than two years after he took over, one of his prosecutors disclosed that there was a set of secret “witness protection files” that, even at that point, hadn’t been given to the defense. The judge at that time, Gerald Rafferty, ordered the DAs to turn over hundreds of pages of documents, which revealed even more payments the prosecutors Brauchler kept on the case made to prosecution witnesses.

In court last year, Brauchler’s team strained to justify having knowingly sat on the secret evidence by saying they were trying to protect witnesses.  

“Well, I will make the record that this is in regards to witness protection and the witness protection statute and more is not better under the witness protection statute, in fact, it’s confidential and –,” argued one of Brauchler’s prosecutors, David Jones, before Judge Rafferty interrupted him.

“I would strongly disagree with that, Mr. Jones, strongly disagree in a capital case,” the judge said. “ You can expect that in my order, sir. Let’s move on.”

Jones since has left the DA’s office but Brauchler continues keeping the two lawyers who handled the case when the materials were kept hidden as the lead prosecutors.

After reading an earlier version of this story this morning, Brauchler texted to say, “It’s not my office being accused. It’s (t)he DA’s office prior to me being DA.” The Independent responded by writing, “The claims include the ‘secret witness files’ revealed last year, George. … They were revealed three years after you took office. And your folks seemed to have known they hadn’t been turned over.”

To that, Brauchler responded this morning: “Good grief. I now own everything that happened or didn’t happen under my predecessor?”

In one of the Owens cases’s oddest twists, Judge Rafferty – who presided for 11 years over both the trial and appeal – was preparing to issue his ruling when he was fired last year for what Colorado Supreme Court Chief Justice Nancy Rice called a breach of contract on a personnel matter. Her office made the unusual move of sending out a news release about Rafferty’s removal. Rafferty argued that he did not breach his contract and emails provided by the state back up his assertion.

For years, Rafferty had shown an interest in what he once ruled was prosecutors’ “deliberate choice” not to disclose evidence favorable to Owens. He granted 37 weeks of hearings on most of the claims the defense made in its appeal. He held hearings on evidence exhibits and heard dozens of witnesses testify over two and a half years. He reviewed the 22,700-page court file, the 28,288-page trial transcript and the 27,836-page post-conviction record, plus 1,889 exhibits from trial and 880 exhibits from the appeals phase. And he spent 11 months working on his written decision.

The timing and manner of Rafferty’s abrupt removal raised questions in Colorado’s criminal defense and civil rights communities about whether state officials used the contract dispute as a pretense to fire the judge in order to keep the Owens case from being retried.

Defense efforts to uncover what led to Rafferty’s ouster have been rebuffed by the judicial branch and by Judge Munch, who was appointed to take over the case. Munch handed down his order  today without having seen or heard from a single witness about errors in the capital proceedings.

As she waiting this morning to hear if Owens’ death sentence will hold, Sen. Fields said that she has never seen any wrongdoing by either the prosecution or defense: “I saw both sides working very diligently to seek justice on behalf of my son and his fiancé.”

Owens lives in solitary confinement at Colorado State Penitentiary, the supermax in Cañon City. He learned of his defeat today from the lawyers who’ve been appealing his death sentence for more than nine years. They wanted to break the news to him in person.

Many of the issues around which Owens’ appeal pivot also are at the root of an ongoing appeal by Ray, his co-defendant. Unlike Munch, the judge in Ray’s appeal has conducted evidentiary hearings into his claims, the majority of which complain of the same errors listed by Owens’ lawyers.

In a previous capital prosecution of two defendants in another murder case, there were similar claims of misconduct by the 18th Judicial District Attorney’s office, including the suppression of key evidence. Armed with that previously hidden evidence, one of those defendants, Alejandro Perez, was quickly acquitted by a jury. The judge presiding over the case against Perez’s codefendant, David Bueno, vacated his murder conviction. That ruling is now on appeal by the Colorado Supreme Court.

Earlier this summer, Jack Roth, one of state Attorney General Cynthia Coffman’s top lawyers on death penalty cases, lost his job after having made public comments that overstepped his authority to seek death in a Crowley County murder prosecution.

The similarities between Colorado’s three death row inmates are striking. In a state with a 4 percent African-American population, each is black. Each grew up poor. Each attended the same school, Overland High in Aurora. And each was prosecuted in the 18th Judicial District, which has pursued death in far more cases than any other district in Colorado. Under Chambers’ control, the office handed out Christmas bonuses to prosecutors who took on capital cases – a practice Owens’ lawyers have claimed amounted to an improper bounty system.

Several groups, including the NAACP and the American Civil Liberties Union of Colorado, have taken issue with how the death penalty is sought in the state. They’ve cited a study showing strong biases against ethnic minorities. Nationally, groups working to abolish the death penalty and end wrongful convictions are starting to focus on the kinds of prosecutorial misconduct claimed in Owens’ appeal.

Gov. Hickenlooper won office in 2010 as a professed death penalty proponent. When announcing in 2013 that Dunlap wouldn’t die under his watch, he said he was reconsidering his position. The governor cited racial disparities explicitly and alluded more subtly to prosecutorial integrity in expressing concerns that current death penalty practices could undermine trust in state institutions. Hickenlooper gave Dunlap a reprieve while indicating that if the state were to carry out executions, it should do so when the system operates flawlessly. Hickenlooper called for a “statewide discussion” about Colorado’s death penalty practices, given concerns about how the death penalty is meted out in the state,

Four years later, that conversation has not taken place even – as the Owens case shows – questions keep surfacing about capital prosecutions. The governor’s office hasn’t said why the policy discussion hasn’t started. Colorado’s moderate Democratic governor is eyeing a presidential bid in 2020 after he’s term-limited out of office.

Brauchler, in the meantime, is one of several Republicans who’ve launched campaigns to fill Hickenlooper’s seat in the 2018 gubernatorial election. The DA built his public profile personally prosecuting Aurora theater shooter James Holmes, against whom he won a conviction but not the death sentence he sought. Brauchler has gone on to become the state’s loudest death penalty proponent.

Photo of Sir Mario Owens from the Colorado Department of Corrections web site.