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Bad Execution

Defense attorneys have accused her of running a death machine, but the wheels came off Carol Chambers's rattling apparatus this week. On Monday a judge ruled that Chambers, the district attorney for Arapahoe, Douglas, Elbert and Lincoln counties, and her entire office should be removed from one of six death-penalty cases she's pursuing because of several prosecutorial blunders in the matter.

On the same day, in the tiny eastern plains town of Hugo, jurors resumed deliberations in the murder trial of David Bueno, a state inmate accused of killing another prisoner at the Limon Correctional Facility in 2004. If convicted, Bueno faces possible execution. But regardless of the jury's decision, the ultimate outcome of that case and two others has been thrown into confusion by a decision made in another courtroom regarding Bueno's co-defendant, Alejandro Perez, who has yet to go to trial.

Lincoln County District Judge Stanley Brinkley ordered Chambers, all other employees of the 18th Judicial District and the Capital Crimes Unit of the state attorney general's office disqualified as prosecutors in the Perez case. In doing so, Brinkley cited not simply one procedural misstep, but numerous ethical violations, ranging from prosecutors who'd failed to disclose conflicts of interest to misleading court filings to the unusual way the case is being bankrolled, all of which led him to conclude that a fair trial would be "unlikely" if Chambers and company remained on the job. The judge called for a special prosecutor to be appointed to take over the entire prosecution, including the question of whether Perez should face death for his actions.

"I've never seen a ruling like this before," says Perez attorney David Lane, who was involved in filing several motions that prompted Brinkley's order. "But then, I've never seen prosecutors act this unethically."

This isn't the first time that Chambers's ethics and zeal have come under fire since she took office in 2004. Vowing to shake things up in the 18th, one of the largest and busiest judicial districts in the state, she antagonized judges in Arapahoe County by ordering staff to time their breaks, and denounced an Aurora police officer as a less-than-credible witness. She also alarmed defense attorneys by filing several grievances against them and pursuing habitual criminal charges against hundreds of chronic but low-level offenders, forcing them to accept lengthy prison terms in plea deals or risk multi-decade sentences at trial.

In 2006, a disciplinary panel publicly reprimanded Chambers for interfering in a civil case involving a political ally. Another ethics complaint against her, stemming from her e-mail tirades about certain judges that some considered to be "veiled threats," was dismissed last year. But in recent months, she's stirred even greater controversy by almost single-handedly reviving the all-but-dead death penalty in Colorado, which has produced exactly one execution in the past forty years. Six of the seven capital cases now under way in the state were being pursued by her office — until the Perez ruling snatched one (and possibly more) off the table.

Chambers, who's running for re-election this fall, has blamed defense attorneys and lenient judges for the staggering cost of capital cases, insisting that they can be done more efficiently. But Lane and other death-penalty opponents say Chambers has bent the rules in her relentless pursuit of the ultimate punishment, including the way she's financing three of the prosecutions, which involve murders inside state prisons. Using a 130-year-old statute that requires the Colorado Department of Corrections to reimburse counties for the expense of prosecuting crimes committed inside their facilities, Chambers has billed the DOC hundreds of thousands of dollars in recent months for the costs of trying to execute Bueno, Perez and Edward Montour Jr., a Limon inmate who killed a corrections officer in 2002. The arrangement forced prison officials to go to state lawmakers this year, hat in hand, seeking a special fund for "payments to district attorneys."

Perez's attorneys filed motions protesting the practice, contending that it had compromised the independence of the prosecution and provided a financial incentive to pursue the death penalty; the prison system had become the DA's "client" rather than the counties she was elected to represent, they claimed. They also argued that Chambers had gone well beyond the intent of the statute by billing the state for the entire salaries and benefit packages of several employees in her office who were working full-time on the cases.

Judge Brinkley agreed — up to a point. He concluded that Chambers had "circumvented" the statute by charging salaries as well as costs to the state, although he didn't find any evidence that she'd sought "intentional financial gain" by doing so. But that was hardly the only aspect of the prosecution's conduct that troubled him. The failure of two members of the prosecution team to disclose ethical conflicts and step down was also disturbing.

Bueno and Perez are charged in the fatal stabbing of inmate Jeffrey Heird. Prosecutors say Heird was killed because he failed to tip off gang members of an impending drug bust he learned about from a female guard. The deputy DA who led the initial investigation of the murder was Robert Watson. Now a prosecutor in another district, Watson had previously represented a Limon inmate, Michael Snyder, who would emerge as a witness against Bueno and Perez — and whom Lane contends is an "excellent potential suspect" in the murder himself. But Watson never disclosed his prior relationship with Snyder to the court and claimed to have forgotten all about it; nor was Snyder ever investigated as a suspect.

"Basically, they came into it without the neutrality necessary to make a fair decision about who to prosecute," Lane says.

In a court hearing, Chambers admitted that she wouldn't have relied on Watson to assemble the case if she'd known about his prior dealings with a key witness; that would be "unseemly," she said. But even more puzzling is a larger gaffe involving Daniel Edwards, who works on the attorney general's capital-crimes team and was appointed by Chambers to work as a special deputy DA on the Bueno-Perez case. A mere five years ago, Edwards represented Alejandro Perez in post-trial proceedings on another murder conviction. This somehow escaped the notice of the AG's high-powered execution squad and Chambers's office — neither of which had a "conflict screening policy" in place — for months.

Once the relationship was disclosed, Perez objected to the presence of his former attorney on the team that was trying to kill him — and last June, Brinkley ruled that Edwards could continue to work on the Bueno case but was to steer clear of any matter impacting the Perez prosecution. Despite this caution, Chambers ordered Edwards to work on various areas of legal research in the Bueno case that, Edwards later admitted, could be used in the Perez case as well.

"In the back room, Mr. Edwards was providing the fodder that could be used indiscriminately by the district attorney's office and the Capital Crimes Unit in prosecuting death-penalty cases, including Mr. Edwards's own client, Mr. Perez," Brinkley wrote. "Mr. Edwards has literally switched sides."

The judge also found that the Perez prosecution team had taken a "shotgun approach" to endorsing witnesses for the trial. Contrary to the prosecution's assertions in court documents, many of the inmates listed as witnesses say they never spoke to any investigator and weren't in a position to see or hear anything related to Heird's murder. And one of the non-inmates listed as a witness is, in fact, deceased. Brinkley found that, despite the fact that thirty months have passed since Heird was killed, no one from Chambers's office had bothered to review the discovery material on each witness to see what was relevant.

For all these reasons, Brinkley decided to kick Chambers and the AG's Capital Crimes Unit off the case.

Chambers couldn't be reached for comment; a spokeswoman for her office has indicated that the DA will appeal Brinkley's ruling. If it stands, however, Brinkley's dim view of the prosecution's conduct could have far-reaching effects. If the Bueno jury returns a guilty verdict, the ethical conflicts of Watson and Edwards could provide ample ammo for appeals. The dubious financing scheme could spell trouble for the efforts to re-sentence Montour to death, too. And there's the little matter of the Perez case having to start over in new hands, with many of the witnesses whom prosecutors had planned to call in the death-penalty phase now prohibited from testifying by the judge's order.

"Their unethical behavior has cost the taxpayers millions of dollars and jeopardized future convictions," says Lane. "This is unprecedented in the state of Colorado."