David Bueno, convicted killer, may get a new trial after ruling DA's office withheld evidence
In 2010, we reported that David Bueno's murder conviction had been vacated because of withheld evidence. Attorney David Lane pointed the finger of blame at then-18th Judicial District DA Carol Chambers -- a claim vigorously denied by a Chambers associate committed to appealing the decision.
Now, three years later, an appeals court has upheld the previous ruling, with the Colorado Criminal Defense Bar using the case as an example of how the death penalty is applied unfairly. Details and more below.
We've been covering this case for more than five years. "Arapahoe County DA Charges Death-Penalty Fees to State," a February 2008 feature by Alan Prendergast, spotlighted the prosecution of Bueno, one of two cons charged with killing a fellow prisoner in 2004.
As we've reported, District Attorney Chambers sought the death penalty against Bueno, which puzzled attorney David Lane at the time. In an interview with Prendergast, he said Chambers's decision to seek the ultimate punishment against Bueno and fellow suspect Alejandro Perez, who was acquitted two years ago, "has been a head-scratcher from day one... In the history of the state, Colorado has never sought the death penalty for a prisoner killing another prisoner."
Bueno was ultimately convicted of slaying the prisoner in question, Jeffrey Heird. But in October 2010, District Judge Douglas Tallman vacated the conviction based on the assertion that the DA's office had withheld what's described by the Denver Post as "a letter found by a prison nurse minutes after the killing and written by the Aryan Nation that threatened to 'exterminate' white inmates who 'refuse to accept their proud race.'" The letter wasn't entered into evidence until more than a year after Bueno's conviction.
The complete court document is below, but here's an excerpt from the decision from District Judge Douglas Tallman:
Apparently, someone from the District Attorney's office made the conscious decision this information was not to be included in discovery because it was not relevant.... The Trial Court cannot say with certainty the District Attorney acted in bad faith by withholding relevant and possibly exculpatory evidence.... [But] it is apparent to the Trial Court that a conscious decision was made at some point early in this case to keep the information from the Defendant by separating these documents from the balance of Watson's working file.
For the foregoing reasons, the Trial Court finds the Defendant's right to present a full, fair, and complete defense to the charges, his right to due process under the State and Federal constitutions, and his right to be provided all relevant and possible exculpatory evidence that might negate his guilt have been violated. Thus, the Court does GRANT Defendant's motion for new trial.
In an e-mail, Lane slammed Chambers's office with relish, writing, "In an absolutely shocking order, the trial judge in People of the State of Colorado v. David Bueno, vacated the First Degree Murder conviction of habitual criminal David Bueno because Carol Chambers's office, the 18th Judicial District Attorney's Office, hid exculpatory evidence from the public defenders who fought the case. Carol Chambers sought the death penalty against Bueno for a prison murder of another inmate, which resulted in many news articles outlining the fact that her office was improperly making money on the death penalty.
"It is not only truly stunning that the prosecutors in this case hid evidence that was so favorable to the defense that the trial judge has granted a new trial because he had doubts about Bueno's guilt, but it is particularly shocking in light of the fact that this was a death penalty case and the prosecutors were caught red-handed cheating in a case where they were trying their best to kill Mr. Bueno. It is truly an outrage which should result in severe discipline, up to and including prosecution, being imposed upon the prosecutors who hid this evidence."
In response to these comments, assistant district attorney Leslie Hansen fired back. We've included all of her statement below, but she wrote in part, "With regard to the Bueno case, the ABN letter and report (the so called 'newly discovered evidence') was made available to the defense in May 2007 -- well before the trial which took place in March and April 2008. They were given unfettered access to every incident report over a two yr. period 2003-2004, which is what they requested. They were allowed full and complete access with no restrictions, they could take as much time as they wanted and they could mark any document that they wanted a copy of and it would be provided."
Nonetheless, the Colorado Court of Appeals upheld the previous court's judgment in a ruling issued yesterday.
The Colorado Court of Appeals opinion is below in its entirety. But a quote shared by the Colorado Criminal Defense Bar reads: "The prosecution 'shall disclose' any information tending to negate the guilt of the accused. This mandatory disclosure is something more than making information 'available....' Thus, because it is undisputed that the prosecution had copies of the [withheld evidence,] it was incumbent upon the prosecution to provide this information to defendant. As the trial court noted, '[i]t is apparent...that a conscious decision was made at some point early in this case to keep the information from the Defendant....ʼ"
The CCDB statement concludes that "this case demonstrates the unfair application of the death penalty in Colorado, and the deliberate attempt by a prosecutor to withhold evidence from the defense in a capital case. The evidence was originally withheld in Mr. Buenoʼs case under the reign of Carol Chambers -- the governmentʼs behavior here, however, was defended most recently in the courts by the new District Attorney, George Brauchler."
As you know, Brauchler is currently pursuing another high-profile death penalty case -- against accused Aurora theater shooter James Holmes.
Look below to see a larger version of Bueno's booking photo, the Colorado Court of Appeals opinion, the 2010 ruling and the complete statement from that year by assistant DA Hansen.
Leslie Hansen statement, as featured in the October 2010 post "David Bueno murder conviction vacated: 18th Judicial District asst. district attorney fires back:"
Some comments on your recent article on the Bueno murder case. David Lane is an anti-death penalty zealot who will take any opportunity to make unfair comment; more importantly, he does not have a working knowledge of the case and does not know what happened concerning this ABN letter. You mention that our office was kicked off of the Perez case but you do not mention that we were reinstated on the case for the second time on September 13th of this year; so twice now the Supreme Court has decided in favor of the prosecution.
With regard to the Bueno case, the ABN letter and report (the so called "newly discovered evidence) was made available to the defense in May 2007 -- well before the trial which took place in March and April 2008. They were given unfettered access to every incident report over a two yr. period 2003-2004, which is what they requested. They were allowed full and complete access with no restrictions, they could take as much time as they wanted and they could mark any document that they wanted a copy of and it would be provided. The incident reports were filed by date and grouped into folders for approximately a two week period; the original of the ABN letter was attached to a report dated March 28, 2004 and was in the March folders and a copy of the ABN letter was attached to another report dated April 2, 2004 and was in the April folders. The murder happened on March 28, 2004. It is reasonable to assume that out of two years worth of incident, the first couple of folders that would be examined would be the weeks and months immediately before and after the murder. (Colorado Supreme Court case law says that there is no violation of discovery when a defendant had access to the information or the information was within the defendant's actual knowledge.)
Even if the defense did not find the ABN letter during their search in May 2007 -- more likely they simply did not think it was relevant, which it really isn't -- defense counsel obtained a copy of the ABN letter on June 11, 2008; counsel made this admission in a court pleading. The motion for new trial based on 'newly discovered evidence" was not filed until July 19, 2009, more than a year later.
Rule 33 requires that a motion for new trial based on newly discovered evidence "shall" be filed as soon as the facts supporting the motion become known to the defense. The simple fact is, there was no newly discovered evidence and more importantly, the ABN letter is NOT exculpatory and based on testimony at the hearing is probably bogus.
We think the judge's decision is incorrect and we have filed a Notice of Appeal. And, the District Attorney's Office remains committed to seeking justice in this case.
Leslie Hansen Assistant District Attorney
Send your story tips to the author, Michael Roberts.
More from our Follow That Story archive circa October 2010: "David Bueno murder conviction vacated: Carol Chambers's office hid evidence, says David Lane."
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