Molly Midyette, a mother sentenced to sixteen years for the death of her son, speaks out
On the afternoon of December 21, 2007, twelve jurors filed into a Boulder courtroom, ready to issue their verdict for the city's most sensational trial in years.
Over the previous two weeks, these jurors and everyone else in the packed courtroom had heard all about the very short life of Jason Jay Midyette. On February 24, 2006, the eleven-week-old had been rushed to Children's Hospital in Denver, where doctors had found him damaged almost beyond comprehension, with dozens of broken bones and a massive head injury that had left him comatose. Jason never regained consciousness; he died a week later, the victim of what the county coroner would rule a homicide.
Jason's death captured headlines in Colorado and beyond — not just because of the horrific nature of his passing, but because of his parents: Alex and Molly Midyette, the son and daughter-in-law of J. Nold Midyette, a wealthy architect and Boulder real-estate mogul. And as more than a year passed without any charges being filed, without any new details emerging, people began to wonder if in Boulder, a city still haunted by the ghost of JonBenét Ramsey, justice could be bought and sold.
But in May 2007, a Boulder grand jury indicted both Alex and Molly for child abuse resulting in death. Molly was the first to go to trial. She'd sat in the courtroom as doctors testified that they were struck by how long Jason's parents waited before they sought help, as social workers and police officers described an uncooperative family that seemed to care more about its own well-being than the child's.
Finally, Molly had taken the stand — the only witness called by her lawyer, superstar Denver defense attorney Craig Truman. She didn't know anything was wrong with Jason until it was apparently too late, she told the court. She didn't know how to explain all the damage inflicted on her baby, the brain contusion and the broken bones. "I have no idea," the emotional 29-year-old law-school graduate said. "I can't explain any of them."
And now, after just six hours of deliberation, the jurors had made their decision: Molly was guilty of child abuse resulting in death — a charge that carried the same potential sentence as second-degree murder. The courtroom erupted when the verdict was read; Alex, a 6' 4" bear of a man, started screaming obscenities as his ashen-faced wife was taken away in handcuffs.
After the courtroom cleared, Truman went down to the basement holding cells, where he found Molly crying and rocking back and forth. Nearly in tears himself, Truman apologized. As he'd just told Molly's parents, it had been a long time since he'd lost the trial of an innocent client.
Molly looked up and shook her head. "No, you don't understand," she said. "There was so much that I couldn't tell you. I wasn't permitted to tell you, and so you never really had a chance."
Molly Midyette, dressed in a green prison smock, looks thinner than in the three-year-old courtroom photos, her 5' 1" frame lean from daily, methodical exercise. It's unusual for her to be meeting visitors here, in an administrators' conference room at the La Vista women's correctional facility in Pueblo, but the regular visiting rooms are occupied by an inmate GED test. Besides, as a member of the prison's "Incentive Unit," reserved for infraction-free inmates, Molly has earned some leeway.
Molly seems nervous about her first-ever media interview. But she has a story to tell, she says, a story that never came out in all the courtroom drama and flashy media reports, a story she herself ignored until it was too late. Once she begins to tell it, she talks for hours — her dark brown eyes looking off into space as she recounts the details. She pauses only when she's interrupted by droning announcements over the prison-wide intercom: Yard is open, yard is open. Return to normal operations, return to normal operations. Some parts she tells dispassionately; other parts bring her to tears.
Molly's story is bolstered by her parents and friends, as well as a lengthy court motion filed in January pushing for a new trial. But it's also strenuously disputed by people she used to consider family.
The story begins with another Colorado woman named Molly, one even more famous: the "Unsinkable" Molly Brown. Growing up in Boulder, Molly Bowers, as Molly Midyette was known then, usually had her nose in a history book — and often it was one that followed the exploits of Molly Brown, the Denver woman snubbed by socialites who didn't let a tragedy the size of an iceberg bring her down.
Molly admired the strength of her historical hero, a strength she didn't see in herself. While Molly was smart, athletic and pretty, she didn't seem to recognize the attributes that everyone else saw. "In all honesty, there is depression there, there is anxiety, there has been a struggle," says her mother, Jane Bowers. "She doesn't always know how to trust her own instincts."
Still, Molly did well at Boulder High, attended Front Range Community College and then the University of Colorado, and went on to get a law degree from Michigan State University. Then, because she was interested in trade issues, she began pursuing an advanced degree in international law at John Marshall Law School in Chicago. But she dropped out of the program and moved back to Boulder in late 2004 — in part because that summer, she'd fallen for Alex Midyette.
Although Alex had gone to different schools — military school, followed by a couple of years at Quest Academy, an elite private school in Boulder — he and Molly had been on the same summer swim team as kids and had mutual friends. But they didn't really get to know each other until a chance meeting at 'Round Midnight, a Boulder bar — where they immediately hit it off.
"When we first started dating, he was a charmer," Molly says. Alex told her he'd had a crush on her back in high school, when he'd pined for her from afar. To prove it, he vividly described the pair of overalls she'd worn to a Taco John's one day when he spotted her. "It was not a cute outfit," Molly says with a laugh. "But he said he thought to himself, 'How can I get a girl like that?'"
The two had some things in common: They both loved Family Guy and South Park, and they'd both grown up in the foothills outside of Boulder — Molly in Boulder Heights, Alex further south, in Sugarloaf. But while the Bowers family was solidly middle-class, Alex's was rich and renowned: His father, architect J. Nold Midyette, had designed the main Boulder Public Library and overseen the renovations of CU's Old Main building and Macky Auditorium; he also owned a large chunk of the east end of the Pearl Street Mall, a mini-empire that included the old Citizens National Bank building as well as the spaces housing the Cheesecake Factory and the then-open Borders bookstore.
It didn't take long for Molly to realize that in the Midyette clan, everything revolved around J., the patriarch. Alex, who hadn't gone to college, had a job with his father's Pearl Street Mall Properties, doing odd jobs and property maintenance work. "J. is always kind of the center of everything," says Molly. "He would just talk and talk, and you can't argue with him. There is no differing point of view." In December 2004, Molly and her parents went to the Midyettes' Sugarloaf compound for dinner. Hearing that Dan and Jane Bowers were liberal, J. began listing all the problems with the 1960s peace movement. During his diatribe, both Molly and her father dozed off — only to awaken and find J. still going on and on.
The Midyettes didn't just dislike the '60s; they seemed to despise anything and everything that smacked of liberalism, and that included Boulder. "They hated hippies, they hated Democrats, they loved guns, they said everyone in Boulder just whined," says Molly. "They were like the anti-Boulder." She remembers Alex's mother, Kay, telling her that the reason her family didn't recycle was because everyone else in Boulder did.
But Molly could look past all of that because of the way Alex treated her. "He catered to me in a lot of ways," she remembers. "He got me flowers, he took me out to restaurants, he bought me jewelry."
Still, Molly's closest friends had reservations about the match. "In her relationships, she sometimes chose people who didn't care for her as much as she cared for them," says Dancer Vernet. "Some people took advantage of her." Since Alex always seemed to be partying at bars around town, they wondered if he'd end up being like Molly's other boyfriends. And after Molly moved in with Alex in February 2005, Molly's friend Carlyla Dawson says Molly admitted that she wasn't sure things were going to work out. But the next time Carlyla heard from her friend, Molly and Alex had gotten engaged — because Molly was pregnant.
In the summer of 2005, Alex and Molly got married on the manicured lawn of the Midyette home in Sugarloaf. Because their planned officiant dropped out at the last minute, J. ended up marrying the couple, reading from the Bible: "Love is patient, love is kind. It does not envy, it does not boast, it is not proud."
By then, Molly says, she'd already discovered that love wasn't always so patient and kind. After they'd moved in together, Alex's demeanor had changed: When he got angry, he'd scream and call her names, kick doors and throw things. One time, he threatened to knock her out, she remembers. The next day she found out she was pregnant, and when she told Alex, he kicked a trash can in her direction and said he wished it had hit her in the stomach.
That fall, Molly started working at Pearl Street Mall Properties, on the family payroll, just like the wives of Alex's two brothers and just about everyone else in the extended Midyette clan. She earned significantly more than she had at her old job, doing office work at a local development firm, but having to deal with her father-in-law made her wonder if it was worth it. Once, when a toilet in the women's room started leaking, J. escorted his three daughters-in-law into the bathroom so that he could teach them how to properly flush, she says.
To make matters worse, Molly's pregnancy was a nightmare. She was diagnosed with pre-eclampsia, a dangerous complication involving high blood pressure, and gained a lot of weight. By the time Jason Jay Midyette was born on December 17, 2005, at Boulder Community Hospital, slightly premature, she was emotionally and physically drained.
Still, it felt good to bring Jason home on Christmas Eve, to introduce him to their house in Louisville and their huge Labrador, Poncho. "It was the greatest day of my life," she remembers. "It was a really happy time for all of us." At the hospital, Jason had been flagged for failing to thrive, but now he started putting on weight. At his weekly wellness checks, the pediatrician found nothing to be concerned about.
That made the decision that Molly would go back to work just six weeks after giving birth slightly easier to swallow. She wasn't thrilled with the arrangement, Molly says now, but Alex and his parents argued that it made sense. Since Alex wasn't working much anyway, he could be a stay-at-home dad while Molly worked for J. Alex was a proud father who loved to give Jason baths and talk about how he'd teach his son to play golf, one of Alex's passions. And if at times he was a bit rough with Jason, bouncing him around more forcefully than she liked, the baby still seemed to be in good hands.
Molly started getting used to leaving her son at home, settling into her three-day-a-week work schedule. But late on the morning of February 24, Alex called.
Jason wasn't acting quite right, he said.
Before she'd left for work, Jason had been fussy — and he hadn't gotten better, Alex told Molly. Still, he didn't seem too concerned: He asked if he could go golfing when Molly got home, and wondered if she could connect him with a mutual friend so that he could score some pot.
Molly got home around noon and found Jason strangely lethargic. He'd rest his head on her shoulder, then stiffen up with a jerk. She called the pediatrician's office, and a receptionist scheduled an appointment for 3:30, a few hours away, but said that if the baby got worse, they should go to the ER. Molly put Jason down for a nap — and when she tried to wake him up for the appointment, he couldn't seem to fully wake up.
Alex was acting strange, too, Molly says now. She'd discovered the baby reference book usually kept on a shelf lying on the bed, open to the "D" section. Alex said he'd been looking up digestive issues, but she noticed that the first entry on the page was "Dilated pupils." And as they were getting ready to leave for the doctor's office, she found Alex holding Jason, completely naked, up to the bathroom light. He told her he was checking for a rash.
At the doctor's office, the pediatrician confirmed Molly's worst fears: The soft spot on Jason's head was hard and bulging, suggesting something was very wrong. The family hurried to Boulder Community Hospital's emergency room — where everything quickly spiraled out of control. After running a CT scan, a doctor took Molly and Alex aside and asked who else had been watching the baby. When they replied "Nobody," he told them that Jason had multiple broken bones as well as a skull fracture. The police had been called, he added.
Soon both sets of grandparents arrived, and the situation devolved into recriminations and panicked strategizing. Molly says she asked Alex if he'd accidentally done something, which he adamantly denied; then J. asked Molly if she'd harmed Jason while suffering from postpartum depression. The Midyette family's lawyer showed up: Paul McCormick, who'd also worked for the Bowers family in the past. Molly had once talked with him about pursuing a legal career; now McCormick, too, asked Molly if she'd done something to Jason, she remembers, and instructed her not to talk to the police.
Jason had to be transported to Children's Hospital in Denver — but since his parents were now under suspicion, they couldn't ride in the ambulance. They drove down to Children's, where they got the news that Jason's head injuries were too severe to survive. Their baby was going to die.
Since Molly and Alex were both child-abuse suspects, they couldn't stay with him; Boulder County Human Services appointed a legal guardian to oversee his care. That night, the couple was allowed just a few minutes in his room. Jason seemed to be drifting in and out of consciousness, his little body hooked up to a tangle of tubes. "It was like his last waking hours, and they did not let a family member stay," Molly says, gulping back tears. "He spent his last conscious moments alone."
Over the next few days, Molly and Alex fought to get access to Jason. McCormick always seemed to be there. He told them to be wary of talking to police or social workers, told them they should be asking about things like brittle-bone disease and eggshell-baby condition. "I looked to him to defend me," Molly says. "I looked to him for advice."
Finally, Human Services relented: Molly and Alex could have unlimited time with their son. And not long after that, they had to help make the most difficult of decisions: whether to remove life support for the twelve-week-old child. "'Hard' doesn't even describe it," Molly says. "I had to be a parent, so I had to do what was the best thing. I had this belief for a few days that where there is life, there is hope. But by that point, there wasn't any life; it was just machines."
On March 1, those machines were turned off. As the couple held their son, the doctors said that Jason would likely pass away within twenty minutes. But he lived for another 48 hours — and all the while, Molly and Alex never put him down.
Then, says Molly, hardly able to utter the words, "He died in my arms on March 3, 2006."
As the media converged — reporters seeking out friends and neighbors, a Fox News van parked outside of Molly's childhood home — the bereaved parents escaped to Alex's sister's house in Golden. "I needed some privacy," says Molly. "I needed some time to breathe."
None of it made sense to her. Jason would never taste his first bite of solid food, would never learn to crawl or walk. As she hiked through the mountains, she wondered if she'd done something terribly wrong, if her tough pregnancy was to blame, if Jason had exhibited some telltale warning sign she'd missed. But her mind always drew a blank.
The Midyette family closed in tight around her and Alex, and drew in Molly's parents, too. No one talked to the media, no one talked to the police. At one point, according to a motion later filed on Molly's behalf, J. told Molly's parents "that if there was any way to buy off [Boulder District Attorney] Mary Lacy, he would do it."
As part of the damage control, Molly's time sheets at work disappeared, she says. And while the couple was spending the month in Golden, their Louisville house was quietly emptied and sold, and a replacement was purchased in Erie. When Molly and Alex had left for the doctor's office with Jason on February 24, they had no idea they would never again return home.
A few days after Jason was taken to Children's, McCormick had told Molly she'd have to get her own lawyer in case there were criminal charges; he would be representing Alex. But he had the perfect attorney in mind for her, he said: Craig Truman, a friend who was one of the most well-known criminal-defense lawyers in Denver. Still, everyone continued to act as though McCormick was in charge of all the legal strategies — including Molly. "I still saw him as my lawyer," she says. "He acted as a lawyer to everybody." When medical experts began suggesting that Jason's death was a homicide, McCormick was the one who refuted the evidence in the press. Molly often acted like McCormick's unofficial paralegal, she says, providing documents or serving as an intermediary between McCormick and Alex, who sometimes didn't want to talk about the case. Often, McCormick called Molly on her own cell phone to talk. She much preferred talking to him than Truman. "He was very standoffish," she says of the latter. "I never felt like I could really call Craig and ask him questions the way I could with Paul."
And in the fall of 2006, when a grand jury was finally convened to look into Jason's death, McCormick "called potential witnesses and 'advised' them they had the right to counsel and volunteered to help them find counsel," according to the motion filed four years later on Molly's behalf.
Alex was dealing with Jason's loss very differently than Molly was. He refused to see a grief counselor and would go out with friends, drinking and smoking pot, even doing cocaine. Molly says she'd known he was into that when they met, but she thought he'd quit when she got pregnant. Still, Molly says she never seriously questioned Alex, never wondered whether something had happened when Jason was in his care. She believed the rationale their lawyers were working on putting forward as a legal defense: Jason must have had a medical condition, one that ravaged his body from within. "I feel like my law degree worked against me," she says now. "It was so easy for me to see both sides of it."
That changed on St. Patrick's Day 2007. Molly, Alex and some friends went to Denver to see the parade and get their minds off of the grand-jury proceedings. In the midst of the outing, Alex said he had to see a friend about scoring some cocaine. While he was gone, one of Alex's friends started talking about Alex's cocaine use, Molly says, telling her that Alex had never stopped doing the drug — not when she was pregnant, not when he was a stay-at-home dad.
That was a turning point, Molly says now. She had her friends take her back to Erie, leaving Alex in Denver. And at home, Molly opened up to her friends. "He's awful to me," she says she told them. "I have to get out of here." As for Jason's death, she said, "I think he did it."
Molly packed some belongings and went to her parents' house, where she voiced similar worries. Then, in a hastily arranged meeting with Truman the next day, she described Alex's drug use, temper and abusive tendencies — plus her suspicions about what had happened to Jason. "I said I wanted to talk to the grand jury," says Molly, "and that I felt like a needed to check myself in somewhere for a break."
But Truman downplayed her concerns, she remembers. She needed to calm down, spend a few weeks at her parents' house, maybe eat some lasagna, her favorite comfort food. His reaction made Molly feel foolish. "I felt like obviously no one believed me, so I must be the one who's wrong," she says. "I thought, how horrible must I be to come up with such horrible theories about Alex?"
So Molly went back to her husband. Her temporary defection had made Alex all the more angry, all the more abusive, she says; he warned her that if she ever talked that way to Truman again, she'd be hurt and her parents would be killed. And Alex wasn't the only one intimidating her. Not long after she returned, Molly says, J. Midyette took her for a drive, during which he reminded her that he owned everything she valued and said that if she ever again accused her son, he would take it all away — her house, her car, her job, even Jason's ashes. "Things just got worse and worse," Molly says now. "I did whatever they wanted, and I went into this total state of operating on subsistence only."
Maybe that's why, when Truman told her a few months before her trial that he'd come to believe there was no medical explanation for Jason's death and that Alex must have been responsible, Molly disagreed. Maybe that's why she never uttered a word to anyone as Alex's behavior steadily worsened, culminating with his slapping her around and sleeping with another woman on the night of their second wedding anniversary, she says now.
And maybe that's why, when Molly's criminal trial finally began in Boulder District Court, Molly did everything Alex and his family asked. Every day, she took part in a post-court debriefing with the Midyettes and McCormick, the specifics of which she was supposed to keep from Truman, she says. The night before she was scheduled to testify, McCormick called her. "Whatever you do, do not say one word about Alex Midyette," he told her, according to a court motion filed years later. "If you even suggest that it's possible Alex had done this, accidentally or purposely causing injury, you're going to go to jail immediately."
During her six hours on the stand, Molly did not say anything against Alex.
Prosecutors, meanwhile, called medical experts who testified that Jason's injuries appeared in various stages of healing, suggesting an eleven-week lifespan scarred by repeated trauma. And Jason's pediatrician testified that, based on Jason's condition when he was brought to her office on February 24, she was surprised at how long the parents had waited to get help.
The prosecutors didn't suggest that Molly was necessarily responsible for the injuries — but they didn't need to.
"The current version of the child-abuse statutes, I believe, was enacted in the early 1990s," says Stan Garnett, Mary Lacy's replacement as Boulder district attorney. "When I was prosecuting in the early '80s, it was much more difficult to prosecute child abuse. It used to be drafted more like an assault statute, where you have to prove exactly what happened. The change was to make it clear that the legislature puts the responsibility on people who care for children, not only not to harm them, but also to make sure they get help if there is an issue."
Truman didn't call any witnesses other than Molly — not Alex, not any character witnesses, not any medical experts to refute the testimony put forward by prosecutors that suggested Jason had suffered extended trauma. But then, during closing arguments, he surprised everybody when he told the jury that he believed Alex had committed child abuse.
Behind the scenes, all hell broke loose. When the jury began deliberating, Molly says, McCormick drove her and her mother to J.'s office on Pearl Street, where Alex sequestered the two in a room and berated them, accusing Molly's family of planning a courtroom ambush. He then turned to Molly and said, "Your lawyer just got you convicted. Did you know he was going to say that?"
Molly shook her head. "I defended you," she remembers telling him. "I defended you with my heart and soul and everything I had."
Then Alex seemed to have a change of heart. Run away with me, he pleaded. A friend had a plane waiting on the tarmac, he told her. They could go to some island where they wouldn't need passports, escape to a place where they could leave all this pain behind.
"I said, 'No, I am not going anywhere,'" remembers Molly. "In my mind, even after the trial, I thought they were not going to convict me."
She was wrong.
The day after Molly's conviction, the day after she'd told her lawyer that there was so much he'd never heard, Truman visited his client in Boulder County Jail. He found Molly wearing a dark-green gunny sack specially designed to keep inmates from hurting themselves; the jail had her on a suicide watch. But Molly told him that behind these bars, she finally felt protected, she finally felt free. And then she says she told him about how the Midyettes had interfered with her case from the beginning and used McCormick to do so.
"I trusted [McCormick] would act on my behalf because I had known him since I was a child. And it didn't occur to me as a lawyer that he would be doing things he shouldn't be doing," she says. "But they put Alex's interest so much in front of mine. It was never, 'What can we do to help Molly?' It was always, 'What can we do so Molly doesn't say anything?'"
In follow-up meetings over the next few days, Molly told Truman more about the abuse she'd suffered while living with Alex. It was enough for Truman to call a woman he'd worked with in the past: Lenore Walker, a psychologist who's been referred to as "the mother of the battered woman syndrome." Once based in Denver, Walker now lives in Florida — and in January 2008, she flew to Colorado to meet with Molly in jail, where she was awaiting sentencing. Walker concluded that Molly was in fact a battered woman, someone suffering from post-traumatic stress disorder because of physical assault and other abuse. "I spent two or three days talking to her, testing her, and then said, 'Yeah, there is no question that she has been abused,'" Walker says. "People saw bits of it, but no one saw the whole thing. Can you imagine feeling safer when you go off to prison? The father-in-law's abuse of power was also very visible in this particular case." (Truman declined to speak with Westword for this story.)
While Molly waited in jail, Molly's parents remember, McCormick was bad-mouthing Truman to them, asking questions about his post-conviction strategy and suggesting that they find a replacement. He even had defense attorney Phil Cherner meet with Molly on the pretense that she wanted a new lawyer — something Molly says she never asked for.
At that point, Molly and her family decided to sever all ties with the Midyettes. Molly stopped accepting phone calls and visits from Alex, and her parents cut off all contact with Alex's parents and McCormick, their onetime friend.
Without any interference, Molly says, she finally was able to piece together the facts for herself. She thought back to the things that seemed suspicious on the day Jason had gone to the hospital: Alex going through the medical book, inspecting Jason's body for unusual marks. She considered the medical evidence put forward at her trial, and concluded there was little proof of any major damage to her baby before February 24. But she knew that Alex was capable of violence. Her parents recall that the Midyettes had told them that while Alex was at military school, he'd dropped a student who'd been harassing him out of a two-story window. Another time, Alex had so thoroughly pummeled a man in an altercation that he needed facial reconstructive surgery.
Later, Carlyla Dawson told Molly that Alex had said unusual things to her at a party that February. "We were hanging out, and I remember several times that night he said to me, 'Molly didn't do anything wrong; there's more to the story,'" Dawson says.
Molly began sharing her story with Boulder prosecutors. And in March 2008, Truman filed for a new trial, arguing that the Midyettes and McCormick had sabotaged Molly's defense. The allegations were explosive, and while the new evidence might not have changed every juror's mind — as one put it in an e-mail, "I am not saying she may not fit the definition of being battered or at least have some of the characteristics...but does that make her not guilty of not protecting the baby?" — others were not so sure. "There is DEFINITELY more to the story than we were told and I think that a lot of it could be very relevant," one juror wrote. "If Molly's lawyers had presented all of the evidence I think that we might have come to a different conclusion."
But on April 15, 2008, Boulder District Judge Lael Montgomery denied Truman's motion for a new trial. Nonetheless, the new information might have had an effect: Three days later, at Molly's sentencing, the judge told her: "You remain in many ways opaque.... I know what I learned from sitting through the trial, but I do not have as clear an understanding as I would like at this time of sentencing of the reasons behind this crime." Then she sentenced Molly to sixteen years, the minimum possible for her crime.
"I was relieved," says Molly. "Things went as good as they possibly could have gone."
Other battles lay ahead, though. Molly filed for divorce later that year, and while she wasn't asking for money, Alex fought her on everything: what belongings she'd get to keep, whether she'd retain ownership of her dog, Poncho. When Molly found out that arguing for the right to put a photo of her in Jason's crypt would likely cost thousands in arbitration fees, she gave up on that, she says.
Then, in January 2009, Alex finally went on trial (his defense team had argued for and been granted extensions to work on his case). Prosecutors indicated that Molly might testify, and she was ready to do so. "I was going to tell them everything Alex did to me," she says. "And Paul knew what he did was wrong. He knew the potential of what I had to say." But she was never called. (Boulder prosecutors involved in the case declined to talk to Westword.)
With Molly out of the picture, much of Alex's trial involved McCormick calling medical expert after medical expert who suggested that Jason's injuries were caused by a rare metabolic condition. And in the end, the jury found Alex not guilty of his class-two felony charge, knowing and reckless child abuse resulting in death — the charge that Molly had been convicted of. Instead, jurors found him guilty of a lesser crime, criminally negligent child abuse resulting in death, a class-three felony.
"The distinction between the two verdicts is one of mental states," says DA Garnett. "You have two different juries hearing similar but somewhat different arguments, and making a determination of one mental state with Molly and making a different determination of mental state with Alex. A class-two felony is acting knowingly and recklessly, and a class-three felony is being criminally negligent."
For Molly, the verdict was a major blow. Because he was convicted of a lighter charge, Alex went free on bail while he awaited sentencing, while Molly had been required to pass the time in isolation behind bars. "She was incredibly upset," says her father. "She felt totally ripped off."
But in the end, there was some equity. Judge Montgomery sentenced Alex to sixteen years — the maximum allowed for his charge and the same amount of time she'd given Molly.
Nevertheless, Molly wasn't going to accept her sixteen-year sentence without a fight. In late 2009, Truman stepped down as Molly's lawyer so that he would be able to testify about McCormick's alleged sabotage tactics as part of her ongoing appeal. Two well-known post-conviction attorneys, Alison Ruttenberg and Tom Carberry, took Molly's case pro bono. "Molly and her parents' story were perfectly consistent and backed up by documents, and there was a really compelling story there that hadn't been told yet," says Ruttenberg. "Tom and I both felt it was the best appeal case we'd ever seen."
Earlier this year, Ruttenberg and Carberry filed a 129-page "supplemental motion" that expanded on the allegations of abuse and manipulation that Truman had first brought up in his pleading two years ago. They argued that McCormick had violated Molly's right to a fair trial by never disclosing to the court that he was representing both parents when their cases were sometimes at odds, and by continuing his lawyer-client relationship with Molly to her detriment at trial. Ruttenberg and Carberry also charged that Truman hadn't properly defended Molly, and that he didn't do nearly as much work as suggested by the $266,000 he'd billed for his services. Truman had failed to thoroughly look into Molly's allegations against her husband after the St. Patrick's Day incident, they claimed, had failed to call witnesses or prepare much evidence to counter the prosecution's case, and had failed to ever discuss with the DA's office the possibility of a deal in exchange for Molly's testifying against Alex.
"He is a good lawyer. But he was not a good lawyer for Molly," Molly's father says of Truman. "He had ten trials that year, and this was his tenth. So he was tired. He was not up to this. I wish I had realized it sooner."
The medical evidence suggested that "Alex Midyette dropped baby Jason on the floor while baby Jason was in his care," Ruttenberg and Carberry concluded, arguing that Molly should not be held liable for what happened, since she'd been at work. And even if there were indications of previous injuries, as some medical experts had testified, they were so minor that not even Jason's pediatrician had noticed them during weekly checkups.
Today, Molly not only believes that Alex was responsible for Jason's death, but that he told his father what happened. And that McCormick, her onetime friend and mentor, knows the truth, too.
"I believe that Paul knows what happened to Jason," she says. "I believe Alex told him. I believe he always knew, and he did everything he could so I didn't find out."
True to their original strategy, the Mid-yettes have never responded to the allegations put forward by Molly's lawyers since her trial. Until now.
"This has been devastating for the Midyette family," says Daniel Recht, the prominent Denver defense attorney recently retained by Alex and his father. "The loss of Jason was devastating, having Alex go to prison was devastating, and now having Molly lie about what happened has been the last straw on the camel's back and has been terribly devastating." That's why they're finally ready to talk — through their lawyer.
"Of the allegations I was aware of and the new allegations I was not aware of, there is no proof to any of it other than Molly is saying it," says Recht. And Molly's story should be taken with more than a grain of salt, he suggests. To prove it, he plays audio snippets of conversations that Molly had with visitors and over the phone while she was in Boulder County Jail. The jail records all inmate conversations that don't involve their lawyers — and these conversations, Recht says, contradict Molly's current version of events.
Take her claim that immediately after her trial, she finally felt free from Alex and his family's control: In audio clips that Recht says span the two weeks after her conviction, Molly is heard repeatedly and emotionally professing her love to Alex during his visits and asks him to take care of her family. In a recording made the day after her conviction, her parents ask if she has any messages she wants them to give Alex. "Just tell him that I love him," she says, sounding like she's crying.
And while the day after her conviction Molly says she told Truman that "there was so much that I couldn't tell you," a week after her conviction she said this to her parents: "I told the truth on the stand. I told you my version of events. I never saw anything. I didn't believe he did anything. You know, we have medical evidence to prove that he didn't. I don't know why that's not presented."
A few days later, when Molly talked with her parents about how experts from the Kempe Center for Prevention of Child Abuse had suggested that Molly was protecting Alex by not revealing everything she knew, she told them, "It's just crazy to me that people would think that one, I wouldn't tell them if I knew, and that two, I would, when facing jail time, not say anything.... You know, the Kempe Center people thought that I was, you know, protecting him and all, and I'm like, 'Obviously you don't know me.'"
And in recordings of Molly's conversations with attorneys from the Boulder DA's office in February 2008, she also appears to acknowledge that she knew early on that McCormick wasn't her lawyer. "[McCormick] came to the dependency-and-neglect hearing," Molly tells prosecutors, referring to a hearing a few days after Jason was admitted to the hospital. "That was the first time it was explained to me that I had to have a separate attorney."
According to a statement Recht prepared on behalf of Alex and J. Midyette, these audio clips — transcriptions of which he provided Westword — "are just the tip of the iceberg. There is contradiction after contradiction in her statements. Listening to all of her tapes, one gets a sense of how Molly came to believe she needed to concoct a new story which would throw Alex under the bus in order to save herself from sixteen years in prison." And Recht says he will be providing copies of the recordings to the Boulder DA's office, "to help them respond to the lies in the supplemental motion."
The Midyettes are doing this because Alex, too, is appealing his conviction. "This impacts directly on Alex and his ability to get a fair hearing before the district court judge in his own case," explains Recht. "If the judge believes the lies in Molly's motion, that will inevitably negatively impact Alex's case."
As for Molly's claim that McCormick told her the night before she testified that if she incriminated Alex she'd go to jail, "that is a total lie," McCormick says. "I have never had a conversation with Molly where I said, 'Don't say anything incriminating about Alex.' And, as far as I knew, she had absolutely nothing incrimating about Alex." McCormick declines to discuss whether or not he talked to Molly at all that night. But he does note that "Molly, her mother and Kay Midyette were highly motivated to provide the lawyers with information about possible medical explanations for Jason Jay's death. Never did any of those people come forward about Alex or Molly causing the death of Jason Jay."
Parts of Molly's story seem to give even her staunchest supporters pause. Why didn't she speak up about Alex's alleged abuse? "I just feel like at some point, I wish she would have said something," says friend Carlyla Dawson. "There were times when she could have walked away." At Alex's trial, both Dawson and Dancer Vernet testified that they'd seen Alex handling cocaine in the weeks prior to Jason's death. Could Molly really not have known he was still doing the drug? As Vernet now puts it, "I am quite positive that Molly knew."
But such reservations with Molly's story assume that she was capable of acting rationally before, during and immediately after her trial — and both Molly and her lawyers argue that she wasn't. People who've undergone such abuse don't function logically, says Ruttenberg; they fail to notice things they otherwise would, they fail to act with their own best interests in mind, they fail to break free from horrible situations at the first opportunity. Even Recht, who questions Lenore Walker's qualifications — "I believe Lenore Walker identifies battered woman syndrome in virtually every case," he says — has used the syndrome as a defense in court.
It took Molly months to decide to speak out about Alex, Ruttenberg points out, and months more before she was ready to file for divorce. "She didn't stop loving Alex that first night when she started feeling safe; it was a process for her to have time to think by herself, without the constant hovering and bullying by the Midyettes, for her to have time to put together what she thought and what she decided," she explains. "She truly wanted to believe that Alex never did anything to the baby. She never saw him do anything, it was too much for her to imagine that he could have done something, and it is still hard for her to understand."
Molly may not be completely innocent, Dawson suggests: "Looking back at the things Alex did, that alone places an amount of responsibility on her." But there's a major difference between making mistakes and being guilty of knowingly acting in a way that leads to your son's death. "I think in some ways she feels this is what she deserves," says Dawson. "But I don't think she should be punished like she has been."
It's mid-afternoon at the La Vista women's correctional facility by the time Molly finishes her tale, and time for her to return to her normal routine: her daily, meditative runs; the GED course and English-as-a-second-language classes she helps teach. Then, in the evening, it's back to the cell she shares with five other women, where she reads a few pages from her favorite book of late — Life, by Keith Richards — or looks at the photos of Jason she's tacked up on the wall. (She has to be careful with the photos; items belonging to high-profile inmates tend to disappear and then pop up for sale online.)
And this is how Molly's days will pass at least until 2013, when she's first eligible to apply for placement in Boulder community corrections. Unless she wins a new trial, that is.
So far, that fight hasn't been going well. After DA Garnett opposed a Colorado Court of Appeals order for the District Court to look into claims of legal sabotage in Molly's case, arguing that Ruttenberg and Carberry's supplemental motion on the issue addressed too many issues and was filed too late, the Court of Appeals rescinded that decision, taking the case back into its jurisdiction. "I would never second-guess the decisions my predecessor made," says Garnett. "One of the things people forget is twelve members of my community sat and heard all the evidence in this case over a couple of weeks and returned a guilty verdict. I understand Ms. Midyette and her parents think that verdict is incorrect, but I have a lot of respect for the process, and I don't want to minimize or undercut what those folks went through, especially when it involves the death of a child."
Molly's lawyers have since filed a motion to dismiss the Court of Appeals case, and instead will argue in Boulder District Court that Truman's original legal defense was ineffective.
In the meantime, Molly's conviction and appeal have taken a heavy toll on her parents, who've blown through their retirement savings paying legal bills and now spend every evening talking to Molly on the phone and every weekend driving to Pueblo to see her. And it's caused rifts in the community. Last April, just after a fundraiser held by "Friends of Molly," a group dedicated to raising money for and awareness of Molly's case, an encounter with Kay Midyette at the Boulder Target caused Molly's sister-in-law, Kori, to call the police. "Every now and then I do have the feeling that it would be easier to just do my time," Molly says.
Nor has the legal fight made losing Jason any easier, or lessened the pain of the anniversaries that come up every year: December 17, when Jason was born; February 24, when he went to the hospital; March 3, when he died. But Molly has discovered she's stronger than she imagined. "It's taught me what I can endure as a human being," she says.
Like her hero and namesake, the Unsinkable Molly Brown, she's discovered she can endure a tragedy and make it through. And when she does get out of prison — whether thanks to her appeal or not — Molly says she wants to focus on criminal law, teaching others how to put up a fight like she has.
"I didn't do this," she says forcefully, leaning forward in her chair. "It's gotten to the point that it's not about getting out of prison for me; it's about clearing my name. I could be on parole, but I am still going to fight this. It's the right thing to do by Jason, and it's the right thing to do for the justice system. From the very beginning, I have said I didn't do this, and I am not going to back off from that."
And with that, the interview is over, and a prison guard arrives to take her away. Molly is led down a corridor, and, with a faint smile and wave, she is gone.
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