Early next year, Mitch Morrissey will end his term as Denver district attorney — an office he assumed in January 2005.
Morrissey's twelve years in office are among the most eventful of any DA in Denver's history. Over that span, he earned national attention for his office's use of DNA in prosecutions. But he was also a lightning rod for controversy over his alleged reluctance to charge cops in officer-involved shootings that sometimes resulted in big settlements, his decision to seek the death penalty in the quintuple homicide at Fero's Bar & Grille (a jury ultimately ordered suspect Dexter Lewis to spend life in prison without the possibility of parole), and the retrial of Clarence Moses-El, who spent 28 years behind bars for a rape to which another man eventually confessed.
A few weeks before Beth McCann, Morrissey's elected successor, is scheduled to take charge, Morrissey participated in an extended, wide-ranging interview with Westword. He talks at length about his proudest accomplishments and the future of DNA before taking on his critics with no holds barred.
Westword: Looking back on your time in office, what are some of the highlights for you?
Mitch Morrissey: One of the things I really wanted to do was kind of move the office into this century as far as the use of forensics. And a big part of that was to get the Denver Crime Lab out of a building that was built in the 1970s and turn it into a state-of-the-art crime lab. Originally I was asked at one of those coffees that you do when you run as a candidate — they asked, "In eight years, what do you hope to have accomplished long-term?" And I said, "A new crime lab for Denver." And almost eight years to the day, in 2012, we opened the doors on that state-of-the-art crime lab. Because I knew for this office to be effective, we had to have these kinds of services, because that's the way things were moving as far as catching serial murderers, catching serial rapists — just the basic cases we deal with now. That part of it happened thanks to the campaign that got the bond initiative through. But, really, it started out with myself and the lab director. We were the two people in town that were going around saying, "Hey, we need a new facility," and we did a lot of things to get that accomplished. That will be there long after I'm gone, and I think that's an important contribution to the city and certainly to law enforcement in this area.
The next step, when I did get elected, was to make sure we inundated the system with that good forensic science. I was the only deputy who ever handled a DNA case for nearly ten years before I got elected. Part of it was there was a lot of heavy lifting involved. You had to go in and do these admissible hearings, you had to cross-examine experts in the area of genetics and statistics, and there aren't a lot of lawyers that like doing that. I certainly didn't like doing it, but I had to do it, because I was the guy who drew the first case back in ’89. I was the guy who everyone came back to.
What was that first case?
It was the People v. Fishback case. It was the first case where the Colorado Supreme Court recognized that DNA was a viable way to identify someone in a criminal case. There were other cases around that time, but that was really the first one where Justice [Luis] Rovira indicated in his opinion that DNA was good for this process.
I wanted to have every deputy who worked here be able to handle a case like that. We did things in that direction to accomplish that. And one of the things we did was, we took the federal government up on an offer. They wanted to study if we could solve burglary cases with DNA. And I said, "Of course we could." They gave us half a million dollars, and we created the Denver Burglary DNA Project, and what that meant to us, to me, was I would have a number of deputies handling burglary cases, learning about DNA, how to present it, what the questions are — all of those types of things. And it would be a little less of a serious situation. It wouldn't be a rape, it wouldn't be a rape-murder or a sexual assault on a child. So they'd know the process when they did get those more serious cases. And also, they needed to know what it meant in those different cases. We had to make sure that when they were filing cases, they knew what these different forensic sciences really mean to an investigation in a case. And so we kind of pulled the whole office into what I think is this century. What we needed to do around solving these cases, making sure we get the right guy and holding them accountable in court. And that takes a team of detectives, a crime lab and a team of prosecutors that know what they're doing. I was trying to build that team, and I think I've been successful. I think this office is as prepared as any office in the country to go forward, to use all the tools available to hold people accountable and make sure they get the right person.
You were prominent nationally in talking about familial DNA [a family-member-based technique described as "the practice of creating new investigative leads in cases where DNA evidence found at the scene of a crime (forensic profile) strongly resembles that of an existing DNA profile (offender profile) in a state DNA database but there is not an exact match"]. How would you describe that process and your feelings about its use?
I was going around the country before I was the elected DA, because I was the DNA guy in Colorado, in Denver. There was a time when there were something like three of us in the country, and everyone wanted to learn about it, be trained in it. So we would go all over. We actually created a little training program for the Rocky Mountain region. The federal government had us do that. We would go into places like North Dakota, South Dakota, Oklahoma, because that was the region we were in, and we would train a hundred cops and detectives about DNA at the different locations. And we would take them into the lab. I was doing trainings in Washington, D.C., and I was tracking what they were doing in the U.K., because at the time, the U.K. was ahead of us. They were ahead of us forensically, and certainly they were ahead of us in DNA. Their database was bigger. They were moving toward the technology we currently use. They were just more advanced than we were, and they were starting to get successful with familial DNA.
In 2006, I sat down with the British consul, and he said he'd like to build a relationship around what we do and what they do. And I said, "I'd like to see what you guys are doing forensically over there, because you're ahead of us." We were able to arrange a trip to the U.K. They provided an awful lot of the funding, and we were able to go. I think we did one small training over there, but we were able to go around the country and see all the different forensic things they were doing. One of the things they were doing that was incredibly important was digital video — they were way ahead of us on that. But we got to go to their national DNA lab and talk to the folks who were doing familial searching. And then we came back to the United States in 2006 and said, "Why aren't we doing this here?" And we really couldn't get any takers. We contacted the FBI and said, "Why aren't you researching this to see how this would work in the United States?" But they weren't interested.
Why weren't they interested? Were they worried about it from a cost perspective?
No, it was political. Their political agenda was to get state databases to include arrestees as opposed to convicted felons. They wanted to move in that direction, and they thought if they started talking about familial DNA, that would scare state legislators into not building these databases bigger. I said, "You know, you can do this in a practical dual way." But they weren't interested. So we were like, "Why don't we do this ourselves?" So we did. The software that was out there was way too expensive, so we developed the software to do familial searching, and we used the Denver Crime Lab to prove that it worked, and then we took it to the state. We did research there, too, showed that it worked there. We prepared a policy with John Suthers, the Colorado AG [he's now mayor of Colorado Springs], that made sure it would be used in a legal and constitutional way, and we actually had the first success as part of our research in the United States doing familial searching. It wasn't a high-publicity case like they had in California. It was actually a car break-in case, where a guy bled after breaking into, I think, 150 cars or so. He cut himself, and he bled in one of them, and as part of our research, we had run that case because we had DNA. So we ran that case, and the statute of limitations hadn't expired, so we charged the individual and were able to get him convicted. We proved it worked, and now it's been adopted in about eight or ten states, depending on who's counting. California has had incredible success with it. We worked hard with them to get them to change a policy that they had that prevented it. We've given the software away to probably six states so they could start doing it: Virginia, Wisconsin, Utah, Wyoming, Colorado, of course. We've given all of them our software, and all of them have had successes with it. They've caught serial rapists, and there's some that have caught murderers. It's moved slowly, but it works. People just need to educate themselves about it and decide whether they want to put it in place.
Privacy advocates have had some problems with familial DNA. What is your response to the suggestion that familial DNA is in some way a violation of privacy rights?
A violation of the Fourth Amendment or somebody's feeling about what's private? Because it's absolutely under no circumstances a violation of the Fourth Amendment. That's where your right of privacy comes, from the Fourth Amendment. And if you think about it, how is this a violation? Somebody abandons their DNA at a crime scene. They have absolutely no right to privacy for that DNA; they left it there. We're taking that DNA, and we've already run that in a database we know they're not in. So how does that search impact any of their rights? It doesn't impact them at all. We know we're not going to charge the person in the database that might be related to the individual. And we've legally obtained the DNA of the person in the database. So where is the violation of the rights of the person in the database? There is none there. What this is, it's using a scientific, forensic tool to get to the point where you've limited down the number of suspects to do a conventional investigation.
The place where you could violate a person's rights has nothing to do with the familial search. We don't even know the name of the individual in the database that may be related — that the software tells us there's a high likelihood of relatedness. We don't need to know their name. Send us a sample, let us run another DNA test, because these are usually males — though you can do it with females — to see if they have the same Y chromosome type. Because males inherit their Y chromosome from their father. So if it's telling us it's a father-son relationship, they should have the same Y chromosome type. If they're brothers and they come from the same father, they should have the same Y chromosome type, too. If you run that test from the individual in the database and it doesn't match the Y chromosome from the crime-scene sample, that's the end of your inquiry — and you never knew the name of the guy in the database, and obviously, you still don't know the name of the individual who abandoned his DNA at the crime scene. There's absolutely no constitutional issue that has arisen there.
Once you do get a Y that matches, then you ask the database the name of the individual and you do a conventional investigation. If it's a father-son relationship, you ask how many kids does this guy have and where were they in the night in question. One of the first ones we did was a burglary case; it was a hit to a father-son. He had three boys. Two of them were in custody, we could show, at the time our crime took place — so they had pretty good alibis: They were in prison. The third one was the only one who wasn't in prison, but he was in prison at the time we were doing our investigation — which meant he owed the state a DNA profile. So we called the penitentiary and said, "Have you run him yet?" Because if they had, he should have been in the database and we should have had our hit. They said, "No, we're running behind." So we said, "Could you move him up? Take a sample and put him in the system?" And as soon as they put him in the database, we had our hit.
If the guy doesn't owe you a sample, what you do is, you get a court order along the lines of a search warrant that says, "This is what we have. Judge, can we have permission to take a DNA sample from this guy?" If the judge says yes, you do it by a court order. You can't hold the guy, but you can bring him down, take a picture of him. We've been doing that forever. Take a sample. And this is all based on science. You let the guy go, you get the DNA sample, you see if it matches. If it matches, you get a warrant and you go arrest the guy. It's a very thoughtful system that's set up not to violate people's privacy.
Another aspect of DNA that's frequently debated is the collection of DNA related to misdemeanor offenses. Your stance is that DNA should be collected in connection to some misdemeanors but not all of them, right?
I think that if you look at the experience in New York state — they take it from all misdemeanor convictions. That's a very significant difference. We're not talking about taking DNA upon arrest now. We're talking about taking DNA upon misdemeanor conviction. If you followed what they do, the argument is that you should take it on all misdemeanors in the penal code. They have misdemeanors like we do on, say, forgetting to wear your life jacket while you're rafting down a river — but that's not in Title 18 in Colorado. It's a misdemeanor to abandon agricultural tools. Those kinds of misdemeanors, they're not what I'm talking about. I'm talking about things like thefts. And the number-one crime they hit on for misdemeanor convictions for murders and rapes in New York is what they call petit theft: virtually shoplifting. They've been able to solve a number of rapes for guys that jumped the turnstiles at the subway and didn't pay. I think it's six or eight rapes. Those guys got cited for that, they got convicted, they gave their DNA and it matched.
We presented it a number of times to the legislature. I think we learned through that process, and last year we got it down to misdemeanors that involve domestic violence or child abuse on a factual basis. Third-degree-assault domestic violence, misdemeanor child abuse. Those were the offenses. But we couldn't get it out of the second or third committee they sent us to.
Is your position that those offenses are more likely to be committed by people who also commit more serious crimes?
Yes, and that's based on the statistical analysis I did on the history of this in New York. We had theft in there because theft is number one. That was the exception to domestic violence. But simple assaults, all those kinds of things: You look at the New York statistics and what are the highest-level crimes that they're seeing. That's what we were trying to focus on. The idea was, let's go for the handful where they solve the most cases. So we did an analysis of that, and for the most part, we tried to pick the four or five that fit into the category we wanted but that also were showing really good results out in New York.
Do you hope the groundwork you've laid in this respect will lead to Colorado expanding DNA collection for certain misdemeanor convictions?
I would hope so. I worked hard on it for years. I was frustrated in the House one year; I was frustrated in the Senate another year. I think there was a year in between; I took a year off. But I've tried this a number of times. There's no doubt I was committed to doing that. I think it's the next step in getting this database up to the point where it's running optimally. I don't think people understand, but for this thing to run the most optimally and efficiently, you have to have the right ratio. Getting your crime-scene information in there is incredibly important. But you also have to have a robust database of people to search against. About 8 percent of your population commits from 80 to 85 percent of your violent crime. So the goal should be to push toward that 8 percent being in your database. And then you'll solve the kinds of crimes I'm talking about: the rapes and the murders. This has changed a little bit over time, because we're starting to use DNA in burglaries and robberies and that kind of thing. But of the violent crimes we solve, 90 percent of those crimes, the victims are women. And I think about 9 percent of the 10 percent that's left are kids. This is a technology that helps us solve crimes where women and children are being sexually assaulted, sexually abused and murdered. So I think it's really important that we continue to try to advance this science in a legal and constitutional way. And the one thing that's very clear in this country is that taking DNA upon conviction is not a violation. In fact, the ACLU argued that in the United States Supreme Court in their brief — that conviction is the line. So we're talking misdemeanor conviction. We have some misdemeanors already in Colorado where we take DNA upon conviction: sex offenses. It's the natural expansion of that.
It's not all about DNA, though, and I'd also like to mention a couple of other things. We went through a time — and I think the country did — where we saw the impact of the no-snitch generation in social media and that kind of thing. So we had to develop a program, sadly, to protect our witnesses and victims. We are a leader in Denver in witness protection. Witness protection at the local level was almost nonexistent; 2000 was around the time the state realized there needed to be a fund for that. And I've been able to build a witness-protection program, based on the limited resources we have, that's second to none in the country. I have experts in how to protect people, and if we need to change their identities, we can do that. We've done that completely to keep somebody from being murdered.
We also saved the Denver Drug Court. [Former Denver DA and ex-governor] Bill Ritter said to me, sitting at this very desk that I'm sitting at now, "The saddest thing you're going to have to do is close the Denver Drug Court, because we don't have any funding for it." But we went out and found the funding. We found it in the Justice Center campaign, which put aside money to keep people out of jail. We said, "Let's use that money for drug court." So we got that funding, and then we said, "Now, let's expand it. Let's do a sobriety court for multiple offenders of DUI," to get them sober, so they're not killing people on our streets. We did that at the county-court level. Then there was a military docket, a mental-health docket. So now it's a specialty court. It's not even just a drug court. But that's another thing I'm extremely proud of — that the former DA told us I was going to have to close the doors. And not only did we not close the doors, but I think that drug court is as strong as it's ever been. Now, it didn't hurt that the guy went on to become governor and realized how important it was and gave us some funding and supported the courts and the public defenders and all of that. But it was kind of a bleak message he was sending me. I look back on it now, twelve years, and that's one of the oldest drug courts in the country. We changed how we did things. We became the gatekeeper of who goes in. We used magistrates now instead of just a judge that was assigned. We do things differently, but I think it has the same impact. I try to go to every single drug-court graduation and as many of the sobriety-court graduations as I can.
We often get criticized because we do this with multiple DUI offenders — and we've even done that now with felony DUI. It's like, get them sober. Somebody called me the other day and said, "All the other DAs want a mandatory sentence for felony DUI." And I said, "Okay, what is it going to be? Four years?" You give a guy four years in Colorado and he's going to do three months. Then he's out on the street in a community-corrections facility without any treatment. And the message he has is, you get four chances before we'll even send you back. So go back and get drunk three or four times. We're not going to do anything to you.
In our program, the guy may not be convicted of that felony, but he's going to be in treatment for sixty to ninety days before he even gets back out on the street. That's what I think is a thoughtful way of dealing with it. Obviously if the guy's criminal or he's got a gun or a past history, he's not getting into that court. But the person who's a danger because they're a drunk and they get behind the wheel — they're getting treatment before they even step out into the community again. These other guys say, "We need a mandatory sentence." But two years, four years, you're eligible for community corrections eighteen months before your parole eligibility date. A four-year sentence is a joke in this state — and you come out untreated. So a lot of this is thinking practically, thinking about what works. We know that court works, because we were doing it at the county-court level with guys with two or three DUIs, and we were having success for two or three years before they passed that statute. We had a track record. I was reluctant to do it at first, but I thought about it, I looked at the successes. I knew what the downside was, even when the judge was giving them the maximum sentence. And it was like, "This is a no-brainer." But that's the way you've got to look at this stuff.
Our juvenile diversion system was out of funding, too. We found the funding for that, to keep those kids out of the juvenile system. We've done a lot of different things in the past twelve years. Some of it, we tried to expand and build on things that already existed. We saved some things that were going to go out of existence. And they're all doing really well. They're making a difference at different levels.
No one ever asks me about the Justice Review Project, either — the DNA project we did statewide with John Suthers. We did that, too. So when they come and say, "You've got a whole bunch of innocent people in prison for murder and rape," we've looked at it to see if DNA could exonerate them. We were part of the decision to run DNA testing on the guy out of Grand Junction [Robert Dewey] that they ended up letting out of prison after eighteen years. I was on the board and voted on that, and the one thing I said to them was, "Have you caught the guy who did it?" The idea was always, he was just there helping. He's not the one who left the biology. I said, "Have you ever caught the guy who left the biology?" They said, "No." And I said, "So that's a reason to do this testing, right?" And boom, guess what: There was a serial murderer in the penitentiary [Douglas Thames] that it matched. The real guy. So not only did it exonerate a guy, but it tied to a guy who murdered a woman in Fort Collins — and they prosecuted him successfully.
Those are the types of programs that we built around the science, around forensics. We built another one around ballistics — around shell casings and guns. I was out in New York recently, and the ATF was talking about the ballistic database. They said, "Let's talk about jurisdictions that do it well," and they spent the next half-hour talking about Denver, and how Denver's on the cutting edge of using that important database to get trigger-pullers, people who are shooting people in this community, held accountable for the murders and shootings and those kinds of things. We've been on the edge of doing a whole lot of things well beyond DNA.
I want to touch on some areas of controversy during your time in office — first, when it comes to criticism about not charging police officers involved in shootings or alleged excessive-force incidents. Each case is different, of course, but your critics seem to believe you'll find a reason not to issue charges in any of these cases. Why do you think that kind of criticism is unfair?
Well, the last sheriff's deputy we prosecuted is in prison [Deputy Matthew Andrews, who was found guilty of helping prisoner Felix Trujillo escape]. The last police officer, Denver police officer, is in prison for rape [Hector Paez]. And in those cases, the defenses that are available in shootings, in homicides, in the kinds of things people like to criticize me for, are not there. So when they say that we seem to find a reason — the reason is the law. The reason is the law of self-defense. The reason is the law of reasonable force. The reason is all those things a police officer can do out on the street. Most of the critics I'm aware of won't come down and take advantage of the most transparent police-shooting protocol in the country. That's a protocol I inherited. It was started by Dale Tooley, and if you look back, he was getting exactly the kind of criticism that I get, that Norm Early got, that Bill Ritter got. It is constant. I'm a student of history of this office, and I can give you an article from the Rocky Mountain News criticizing Dale Tooley for following the law around a police shooting.
What I always tell people is, if you want to change our decisions on these, you have to change the law. You have to take away the right of self-defense. You have to change what an officer can do when confronted with force or deadly force. You have to change those things, because that's what we have to apply. Now, is it appropriate for a police officer to always shoot somebody when they legally can? No, it's not. We do what we can to try to make sure those things are in place. But when we're making the call legally, we have to apply the law. And the critics won't come down here and look at the facts and read the statements of the witnesses. We make all of that available. The Boston district attorney told us, "I stole your program and took it to Boston." The Baton Rouge district attorney, who's been through a number of these controversial scenarios, he said, "God, I wish we had started doing this thirty years ago, like you guys did, where you videotape everything, where your officers are giving you statements, because they know you're going to apply the right law."
The critics never mention the fact that we charge cops for committing crimes we can prove. All you have to do is look at the list of the ones we've charged with assault. We haven't necessarily convicted all of them, but we've done everything within our power, legally and ethically, to do that. We charged Officer [Charles] Porter, alleging that he stomped a young man who was in cuffs, and a jury walked him. They always leave those out, and then they say, "The city does these big settlements because Morrissey doesn't charge them." [Alex Landau received a $795,000 settlement for a brutality incident, and lawsuits are pending related to the deaths of Ryan Ronquillo and Joseph Valverde.] But there was a huge settlement in the Porter case. We charged him.
Remember down at the baseball field, the individual who lost his teeth? We charged that officer [Michael Cordova], and the jury told us they thought the sound on video of the guy's teeth hitting the concrete was probably batting practice before the Rockies game. But we tried that case. We did the best we could do on those cases.
When the defenses that are there for a citizen — usually the right of self-defense — aren't there for an officer, we charge them. Are we successful in prosecuting them? Sometimes we are, sometimes we're not. People forget the ones we do charge, and when we charge, we do what we do in every case — let the jury decide.
I'll never forget one of my critics in a very large hearing saying, "We didn't need to read your report. We didn't need to look at all of these things to know they strangled him to death." And I agreed with her. "I said, 'You're right. All you needed to do is read the autopsy report. Because he didn't get strangled to death. He died of a heart attack.'" And she was one of the leading activists about this.
It's awfully hard to argue with someone who's unencumbered by the facts. The problem is, when I go into a courtroom, or one of my deputies does, to try a case, try to prove something beyond a reasonable doubt, we are encumbered by the facts. And that's what we have to rely on. Have we been supportive of these body cameras? Absolutely. Have we been supportive of these less-than-lethal tools they're trying to supply the officers with? Absolutely. It's much better for us to not have to make the call on a police shooting than it is when someone who's gotten tased and put in handcuffs and taken to jail. We'd much rather not have the situation happen at all, but when it does, we have to ethically and legally apply the law.
Another hot-button topic is the death penalty. You chose to charge Dexter Lewis with the death penalty for the 2012 murders at Fero's bar. The jury wound up sentencing him to life without the possibility of parole. It seems that a lot of district attorneys are moving away from the death penalty, and it also seems that Colorado juries are becoming increasingly reluctant to impose it. What are your feelings about that case and generally whether the death penalty is something district attorneys should seek?
You know the facts of the Fero's case. Four women, one man, laid down on a floor, held at gunpoint, who waited for their turn to get stabbed multiple times to death by someone who had a criminal history and had already served a term in the penitentiary. That case cried out for the death penalty, in my view. The number of people who were killed, the way they were tortured to death. It had all of the factors, and as a matter of fact, the Denver jury that did the penalty phase, in the aggravating phase they found every single aggravator that we brought. Thirty — they found over thirty aggravating factors.
We have a statute. We have a system for imposing the death penalty. We convicted the man of all those crimes, we went into the aggravation, and everything that we thought was an aggregating factor they found, too. One individual indicated they wouldn't go forward with the death penalty, and that's where they left it. And the system worked.
Everybody says, "You didn't get it, so the system failed." But the system didn't fail. That's the way our system is designed, and that's the way it works. That was a case that I believed a jury should decide if that individual should spend his life in the penitentiary or face the death penalty. A jury decided that. One individual can make that decision in our system. It worked. Everybody criticizes it and says, "It didn't work in the Fero's bar case, and it didn't work in the Aurora theater case." But it worked in both of those situations. That's the way it's supposed to work. Juries are supposed to be reluctant to impose the death penalty. I wouldn't want to live in a state where jurors just willy-nilly give people the death penalty. That doesn't happen here in Colorado. We have a very precise, very well-written system in how to do this in an appropriate case, and the Fero's bar situation was an appropriate case for a jury to decide what the sentence should be. The fact that the jury decided the way it did, that's their job.
Never in 32 years have I been in the business of convicting people. That's what I tell my lawyers. I say, "Did you do the best you could?" Because the jury decides if they're guilty or not. In a death-penalty scenario, the jury decides — and a jury decided in that case.
You mentioned the Aurora case as well as this one. Both of them were really extreme, shockingly violent cases in which the death penalty was not imposed — and as a result, a great deal of additional expense tends to come up. What's your response to the argument, "Death-penalty cases are too expensive, so you should settle for accepting life without the possibility of parole"?
I didn't increase my budget any to seek the death penalty against three individual in the Fero's bar case. I had two lawyers, two victim advocates that I had, and two investigators, with the help of other investigators. That's the way we do it in our office.
So are you saying the perception that death penalty cases are more expensive is false if you handle things the way you did?
I don't know how many lawyers Mr. Lewis had, but I've tried a lot of murder cases against the public defenders' office, and I've never seen that many lawyers sitting at a table. When you run up the bill and then turn around and say, "It costs too much," I think that's interesting. It didn't cost our office beyond what we normally do where I would have to have gone to city council and said, "Hey, I need some extra money to prosecute this death-penalty case."
Now, I'm the Denver DA, and it'd be different if I worked in La Junta and had a death-penalty case, or a place where I might see a murder every other year, and now I've got six, and one of them is a death-penalty case. That's somebody that may need to go get some additional funding. I don't have to do that. I run a large office with very skilled lawyers and a battery of people who've done death-penalty cases, including myself. And so we don't do this lightly, obviously. Twelve years, and you've seen some of the horrendous cases we've dealt with, and for different reasons, I've determined not to seek the death penalty in double homicides, in the starvation of a little boy, in all of those kinds of things. This is a very thoughtful process on our part; we don't do it lightly. We try to only do it in the appropriate cases. The two you've mentioned are just so obviously clear that the district attorney just has to go forward.
What I loved about that whole thing was, the Denver Post, their editorial board, which has been adamantly opposed to the death penalty in this state for as long as I can remember, wrote an editorial about me seeking the death penalty in the Fero's bar case, and their end conclusion was, "We understand why he's doing this." We put the system in play, we do what we need to do and we let a jury decide. But the system worked. Everybody says, "The system is broken. It costs too much." Those kinds of things. But the costs usually comes in the appellate process. If you look at a death-penalty timeline from trial to execution, or trial to whatever the outcome is, the trial is a very, very small part of the timeline. It's the endless appeals that go on and on and on for years that drive up the costs. It's the direct appeal, and then it's the indirect appeal — both of those happen at the state level. Then it goes to the federal level, and there's the appeal from the district court to the Supreme Court and back, sometimes numerous times. That's where your cost is.
The trial part is not that costly, but it's costly to the families. You have to sit down and explain it to them, ask how they feel, and say, "If I decided to do this, this is what it will mean." In many of these cases, I took what the family said very seriously. The family in the Travis Forbes case, they wanted their little girl's body back. They said, "Do whatever you can to get our nineteen-year-old's body back. We don't even know if she's dead or alive." She was in a grave in Keenesburg, Colorado, and I had the opportunity to recover her body because we took the death penalty off the table. That's all I had to do to give that family those answers, so they could take their daughter and bury her appropriately. All I had to do was say, "No, Mr. Forbes, I won't seek the death penalty."
The same thing happened in the Neveah Gallegos case. We found that little girl's body. I think we would have found it eventually, because they ran the RTD tracks down in Golden. But we found her because we took the death penalty off the table, and [Angel Montoya, who was convicted for the crime], said, "I'll show you where I dumped her and buried her." So I think people need to understand that the death penalty is a very important tool even when you don't seek it.
I also wanted to mention the Clarence Moses-El case. You got a lot of criticism for retrying him when there was perceived to be overwhelming evidence that he was not guilty of this crime — and in fact, a jury didn't convict him of the crime in the retrial. What was your argument for going ahead with the retrial?
I met with the victim a number of times. I understood the case was not a whodunit. There was a lot of evidence to indicate that she could identify her attacker — a man who permanently disfigured her for the rest of her life. She said the lights were on, she recognized him as her neighbor. His defense attorneys allowed the evidence we put on to be destroyed, which was very unfortunate. Robin Whitley, who's still in my office, did everything short of deliver the box to them to try to get that evidence to them, so they could test it. I would have been over at police headquarters getting that box before the ink was dry on that court order. It was across the street, but they never picked it up.
I had nothing to do with Moses-El's original case. But it started getting traction and publicity. I'd never seen a defendant with a publicist, which Mr. Moses-El had. He wrote me letters that were contrary to what they presented in court. He said, "This woman is a liar. She has to be a liar." Of course, the defense was that she was just a poor, beaten woman who was mistaken. But that [the accusation of lying] came from [Moses-El], in a letter to me. And so then he gets a new trial based on perjured testimony. The guy [L.C. Jackson, who confessed to committing the crime, then recanted] told us he was lying about it; we presented it to the judge. We went back and confirmed. He said he committed perjury in the hearing....
I sat down and talked to the victim and we looked at, "Do we have a case we can continue with?" And not only did we, but we had a better case than we went to trial on when we convicted him. We had outcry witnesses, where she identified [Moses-El] in her beat-up state — where she said who did it to her to a family member on a porch when she was trying to figure out how to get some help, and she told a doctor who didn't testify in the first trial. She told the street name of the individual who did this to her. And when you describe this as a case where we didn't have any evidence, obviously we had enough evidence to go to the jury. The judge didn't say no. And judges can do that. Judges can say no, there's not enough evidence. The defense asked for it at the end of our case, and they asked for it at the end of their case. They said, "Let the judge decide. There's not enough here." The judge could have said, "I'm dismissing the case." But the judge didn't do that in this second trial. The jury deliberated and it made its decision. We understood it was an old case, and that, in and of itself, creates a problem with memories and all those kinds of things. But this wasn't a whodunit case. This was a woman who could identify her attacker. And then it came down to, did the jury believe the evidence or not? But I believe the case we put on a couple of months ago was stronger than the one we put on during the '80s — with what we could do. We couldn't change the facts, we couldn't change the evidence, but to have those extra pieces of evidence to help the jury decide, we had those things this time. They weren't presented the first time.
I understand what people thought, I understand how they'd educated themselves about the case. But I don't think the media that had reported so much about this case even watched the trial. I asked, "Was the media in there? Were they watching her testify? Were they understanding the explanations of what she was saying?" But they weren't there. It's another of those situations where I'd rather read the media, I'd rather read the press clippings than know what really happened.
Is it your belief that the jury let a guilty man off the hook?
What I'm saying is, we had a reasonable likelihood of conviction. We had it when we first convicted him. He got a new trial through perjured testimony. I think there's no doubt of that. And then we tried it again, and a jury did its job. They weighed the facts, although they were twenty or thirty years old, and they made the best decision they could make. I'm not criticizing the jury in any way. What I'm saying is that we had a reasonable likelihood of convicting him, we presented the evidence we had and let a jury decide.
If you like this story, consider signing up for our email newsletters.
SHOW ME HOW
You have successfully signed up for your selected newsletter(s) - please keep an eye on your mailbox, we're movin' in!
What advice would you give Beth McCann as she assumes the office of the Denver district attorney?
It's a very good office that's been built over the years. Things like the Economic Crime Unit; I think that started as a consumer-fraud unit under Dale Tooley, and it's built over time to become one of the flagship economic-crime units in the United States. Obviously there are the individuals who know how to put together forensic cases, DNA cases. It's a very strong office. My advice to her would be, don't mess with it too much. Don't dismantle one of the best offices in the country. Don't dismantle that police-shooting protocol. Add to it. Make it better. She's saying things like she wants to get the Independent Monitor's role bigger in those decisions. Fine: We change things over time. The idea of police officers wearing cameras was never part of that protocol. Now it's something we face almost every time there's a shooting. Do you show the officer the video before his statement? Do you not show it to him? We've had to adjust that. But that's a nationally recognized way to do these very tragic and difficult cases. I wouldn't go away from that. I would try to improve it. I'd tell her to look at the strengths of this place and build on them. That's what I tried to do. I realized some of the weaknesses we had. I realized we needed to bolster our investigative staff, for instance. Those are things I knew from working here for twenty years, from being a career prosecutor, and how important those things were. So what I would tell her to do is listen, to look and try to understand the strengths and the weaknesses, and try to build on those strengths and improve the weaknesses.
What are your plans? What's next for you?
I'm going to take some time off. I haven't been on vacation but once in twelve years. I haven't skied in twelve years, because I'm always on call. I need to spend some time with my family and my wife, who's worked nonstop on getting the Rose Andom Center built — she and I and some other people. We went through a $13 million capital campaign to raise money to build a state-of-the-art family justice center in this town, and she was one of the primary fundraisers, if not the primary fundraiser. So my hope is to be able to spend some time with her, decompress a little bit and then see what other options are out there.