Mark Ellis Case: Appeals Court Upholds Flawed Sex-Assault Conviction

Just what does it take to get a murky child sex-assault conviction overturned in Colorado?

An admission of perjury by a key prosecution witness? Expert forensic analysis of the only piece of physical evidence in the case, which suggests that it may not be evidence at all? A ruling by a federal judge that your lawyer's efforts in your defense didn't meet constitutional standards and that you should be given a new trial or released?

Mark Ellis, found guilty in 2002 by a Jefferson County jury of sexually assaulting his nine-year-old adopted daughter, had all of those factors going for him in his long-running battle to overturn his conviction, which left him serving four concurrent prison sentences of twelve years to life. In 2014, U.S. Senior District Judge Richard Matsch ruled that Ellis's trial attorney was ill-prepared for trial, failed to call key witnesses to testify, and put on such a poor defense that Ellis's constitutional right to effective counsel was violated. Matsch ordered the State of Colorado to retry Ellis or release him within ninety days.

Colorado Attorney General Cynthia Coffman challenged Matsch's ruling, and Ellis remained behind bars pending the outcome. Last week — almost thirty months after the judge's order — a three-judge panel from the U.S. Tenth Circuit Court of Appeals overruled Matsch and denied Ellis any relief.

While it upholds the status quo, the stunning reversal has its disturbing aspects. Many prosecutions for child sexual assault rely primarily on victim testimony rather than hard evidence; for many reasons, juries are inclined to "believe the children" in such matters. But the Ellis case was more muddled than most. The allegations that he'd been abusing his daughter, referred to in court records simply as V.E., surfaced at a time that Ellis and his estranged wife, a Jefferson County sheriff's deputy, were going through a highly contentious divorce. The initial outcry was raised not by the girl, but by an older brother — who, it later turned out, had been sexually abusing the girl himself. Although the girl displayed an unusual degree of sexual knowledge for her age, it was Ellis's contention that the graphic descriptions she provided to authorities derived from the abuse inflicted by her brother, who was angry with Ellis over the divorce and eager to deflect blame to him.

At trial, V.E.'s oldest sister testified that she hadn't seen her mother orchestrating the case in any way. In post-conviction hearings, she admitted that that testimony wasn't true and cited examples of her mother coaching the victim. Another sister testified that her mother "threw her out of the house" for stating her belief that Ellis was innocent. (V.E. has never formally recanted her allegations, but has written letters to the court asking that Ellis be released from prison; she has also reportedly told other relatives that she can't recall her childhood traumas with certainty and may be afflicted with "false memory syndrome.")

The only physical evidence against Ellis was a blanket the police took from the victim's bed, which contained Ellis's DNA in semen traces. But testimony indicated that the blanket was used in other rooms, too, and that Ellis had used it while sleeping on the couch, once the marriage was on the rocks, and occasionally masturbated there.

Ellis's attorney at trial, Rowe Stayton, was highly experienced in child sex-abuse cases. But Stayton put on little direct testimony on his client's behalf, seeking to make his points largely on cross-examination of the state's witnesses. He didn't call previously endorsed expert witnesses, including two psychologists already familiar with the family dynamics. He ignored recommendations from his own defense investigator and failed to elicit testimony from other family members that would support the contention that V.E. had been coached.

Testimony at subsequent hearings indicated that Stayton had been overburdened with cases at the time of the Ellis trial. His wife had filed for divorce just weeks before the trial, and he was wrestling with other personal crises as well. As one summary puts it, "Mr. Stayton explained that his mother had shot herself in an unsuccessful suicide attempt, and that this had resulted in a family dispute regarding who would be custodian of Mr. Stayton's older sister, who was a quadriplegic from an accident." In his own review of Stayton's efforts, Matsch described the attorney's performance as "glaringly deficient."

The Tenth Circuit panel disagreed, stating in last week's ruling that Stayton's actions were within the realm of reasonable "strategy" decisions rather than proof of inadequate counsel. The trial attorney's vindication means, oddly enough, that the client loses again.

“Mr. Ellis is innocent," says Gail Johnson, his appeals attorney.  "He was convicted because his lawyer was overwhelmed and unprepared for trial. The recent decision is extremely disappointing, and we are assessing further appeals to the entire Tenth Circuit and the U.S. Supreme Court."

The decision could have ramifications beyond Ellis's case. A somewhat similar (and dubious) sex-assault conviction is currently awaiting a ruling from Matsch — the case of Charles Farrar, who was found guilty by an Arapahoe County jury in 2002 of multiple counts of sexual assault on his fifteen-year-old stepdaughter, Sacha. In that case, there was no supporting physical evidence, and his accuser recanted a year after the trial, admitting that she'd made up the story in hopes of being sent to stay with her grandmother. But Farrar is still in prison, serving a 145-year sentence for a crime that both he and his alleged victim say never happened.

In documents filed in Matsch's court, Farrar's attorney contends that it's a violation of due process "for a conviction to rest on the evidence of a witness who was later found to be lying — even if the prosecutors did not know this at the time of trial."

Will Judge Matsch agree? If he does, will the Tenth Circuit swoop in to preserve the conviction? Farrar, like Ellis, can only wait and see; thanks to the state's justice system, both men have nothing but time.