Bad Company

They had guns. They were after drugs and cash. What they got was trouble.

After six months in jail awaiting sentencing, Baxendale appeared before Denver District Court Judge John Coughlin and gave a candid, remorseful accounting of his crimes. Among the exhibits submitted was a 1985 Dallas newspaper article about the young entrepreneur who'd purchased Mossman Guitars. Judge Coughlin was impressed; here was an addict who'd once done something with his life, and might again. The judge sentenced him to Peer 1. That meant two years in rehab and eight years of reporting to a parole officer, having his urine tested regularly. One slip-up, and he could be on the next bus to prison.

"Mr. Baxendale, you're getting a big break," Judge Coughlin said.
"I appreciate it, Your Honor," Baxendale replied.
"We'll find out," the judge said crisply.

Like many prosecutors, Ron Podboy believed in walking softly but carrying one hell of a stick. With criminals, you had to be tough but pragmatic: Offer them a deal you can live with. If they turn it down and put the state to the trouble of a trial, then nail them to the wall.

"I came up against ten or fifteen people a year whose records were so horrible that they were basically asking to be taken out of society," says Podboy, now a defense attorney in private practice. "Most of the other cases are going to have some kind of disposition, and I always tried to be fair. But if you don't take that disposition, we go to trial, and all bets are off. If you haven't taken my deal, I'm going to work as hard as I can as a prosecutor to put you in jail."

Kevin Rutherford had been charged with nine counts of aggravated robbery, each carrying a mandatory sentence of from 10 to 32 years. Baxendale told Podboy that Rutherford had been unarmed and had protected Mary's twelve-year-old daughter during the robbery. Based in part on those circumstances, Michael Morrissey, Rutherford's court-appointed attorney, had persuaded Podboy to offer Rutherford what amounted to a token prison sentence--three years--in exchange for a guilty plea.

Baxendale wrote to Rutherford in jail, urging him to take the deal. He pointed out that, with credit for time served, Rutherford could be paroled in a matter of months. "I have no desire to see you go to prison for something that wasn't your fault," he wrote. "If you take the deal...you will have a life again in two years at the max."

But Rutherford rejected the offer. He was furious at Baxendale for making statements that implicated him in the crimes, even as he admitted that they weren't his fault. "I believed that if I didn't rob anybody and I didn't plan this," Rutherford says, "then why did I have to take the punishment for it?"

His client turned down "one hell of a deal," Morrissey says. "I didn't argue with him. When he says, 'I'm not guilty and I'd rather go to trial,' that ends the discussion."

"He just refused everything," Podboy recalls. "It was the dumbest thing in the world. He would have been out of prison in twelve, eighteen months at the most, but he remained intractable."

The case went before a Denver jury in the fall of 1992. Podboy didn't pull any punches. In his opening statement he portrayed Rutherford as the man who waved the badge in the two apartment robberies, the "boss cop" who ordered people on the floor and rifled through their belongings. He noted that when Rutherford was arrested at a friend's house a few days after the robberies, he had a newspaper clipping in his wallet about the crimes--"evidence of his pride in having been associated with this outrageous escapade."

But when it came time for testimony, the victims of the first robbery contradicted Podboy's version of events. Two of the three Hispanic men described Baxendale, not Rutherford, as the man who badged them. As for Rutherford, "he didn't have anything in his hands and didn't do anything," one of the men said.

The testimony from the second group of victims was more damaging. Mary denied dealing drugs from her apartment, denied ever seeing Rutherford before the robbery--despite the previous visits that night in an attempt to buy crack, which Baxendale had mentioned in his statements to the police. She and three others all said Rutherford was the man who'd flashed the badge and told them to get on the floor. "I believe if he was forced into doing it, he had opportunities to leave," she said.

Brought into the courtroom in a wheelchair, Mary's elderly grandmother eagerly identified Rutherford as "the man with the badge." But on cross-examination she admitted that she never even saw a badge that night and that, while she suffered from swollen ankles, she wasn't normally confined to a wheelchair.

"Grandma made an effective witness," Morrissey recalls. "Of course, she could walk. Podboy was caught borrowing the wheelchair. That was pretty slick. I congratulated him several years after the case was over."

The man named Bud, a golf-course designer who'd never even bothered to report the robbery to police, insisted that Rutherford had the badge, too. He claimed that Rutherford had "simulated" having a weapon in his pocket in order to force him to give him a ride that night. "I have never been so scared in my life," he said.

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