Determined to demonstrate just how far he believed Arapahoe County prosecutors had strayed over the line in the effort to obtain the death penalty against his client, defense attorney Jim Castle resorted to a visual aid. During a hearing late Friday, he presented District Judge Gerald Rafferty with a wheeled cart piled with documents that he said prosecutors were obligated to turn over to the defense before trial but failed to do so -- a transgression of due-process rights known as a Brady violation.
"There are so many violations in this case, I can't cover them all," Castle said. "How did this happen? This shouldn't happen. If it's allowed, we will accept a new low for justice in Colorado."
Castle's plea capped two weeks of convoluted -- and, at times, disturbing -- testimony and argument in an evidentiary hearing over whether government misconduct tainted the 2008 death sentence imposed on Sir Mario Owens. Along with co-defendant Robert Ray, Owens was convicted of the murders of Javad Marshall-Fields and his fiancee, Vivian Wolfe, in 2005; Marshall-Fields had been expected to testify against the two men in another homicide investigation.
Both Ray and Owens were tried in an atmosphere of intense security, with highly limited defense access to witnesses -- measures that prosecutors from the Eighteenth Judicial District insisted were necessary to protect witnesses from reprisals. But defense attorneys contend that the cloak of secrecy also concealed improper "incentives" that prosecutors offered to key witnesses -- everything from highly favorable plea deals on criminal charges to grocery store gift cards, lodging and even a car provided to one witness -- and failed to disclose to the defense.
In addition to being required to turn over discovery materials to the defense, the district attorney's office also has a duty to "correct" any testimony offered that prosecutors know (or "should have known") to be false or perjury. That can be a daunting challenge given the amount of paperwork and potential leads developed in a sprawling capital case, especially one in which many witnesses are reluctant to testify and deeply involved in criminal activities themselves. But it's a challenge that the Owens prosecutors failed miserably, Castle argued, failing to turn over relevant impeachment materials that the defense didn't receive, in many instances, until years after the trials.
"These kinds of cases are what our community looks at to see if our processes are fair," Castle noted. "We have twelve jurors who imposed a death sentence. They're going to find out they didn't have all the information they should have had."
Several of the government's witnesses at trial were jailhouse informants who were trading information for freedom or reduced sentences. Among the key contentions of the Owens defense:
- Robert Ray's wife, LaToya Sailor, testified that she wasn't willing to come forward about what she knew until after Owens was arrested because she feared Owens would harm her son. Despite the fact that police documents indicate Sailor was already cooperating with authorities prior to Owens' arrest, prosecutors made her supposed need to be protected from Owens "an issue in the case" and hammered away at it to the jury. Another document withheld from the defense indicated Sailor, the beneficiary of a car from then-District Attorney Carol Chambers, had initially offered to assist in an accessory case against Ray but didn't want to tie him directly to the Marshall-Fields shooting. (Ray was sentenced to death for Marshall-Fields's murder and received a life sentence for Wolfe's death.)
- Witness Jamar Johnson was facing two counts of conspiracy to commit murder if he failed to cooperate in the Ray-Owens prosecution, but defense attorneys weren't made aware of that possible motivation or how it might have shaped his testimony.
- Greg Strickland, the only witness to identify Owens as the shooter of Marshall-Fields and Wolfe, testified that he'd received no assistance in any of his own cases in return for his testimony. But records indicate he received a plea deal in Adams County in exchange for his cooperation.
Deputy District Attorney Ann Tomsic denied any misconduct by her office, saying that the defense had failed to demonstrate that any of the witnesses had actually offered false testimony. That people in jail want to cut deals to get out "goes without saying," she added, and it was the jury's duty to weigh the credibility of those witnesses. Tomsic also pointed out that court rulings restricted the prosecution's ability to elicit information from witnesses about the arrangements made for them out of concern for their safety.
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But Castle described the prosecution's approach to the high-stakes, high-profile case as a win-at-all-costs strategy that ignored constitutional requirements. "It's 'I'm not going to look, and I'm not going to find, so I don't have to turn information over to the defense,'" he said. While the procedural violations the defense focused on had little to do with the actual guilt or innocence of Ray and Owens, Castle cited extensive case law stressing that the "how" of due process matters as much in the American legal system as the "why."
He blasted the Eighteenth Judicial District Attorney's Office for failing to have imposed standard protocols for turning over discovery and for prosecutors to inspect police files in a capital case; one ongoing issue in the case has to do with evidence in the possession of the Aurora Police Department that wasn't turned over to prosecutors in a timely manner. (As we've previously reported, the Owens-Ray case isn't the only death-penalty case pursued by former DA Chambers that has been dogged by claims of prosecutorial misconduct and withheld evidence.)
"The vast majority of prosecutors in this state take their disclosure obligations seriously," Castle said. "The Owens case is rare."
Although the government-misconduct phase of the hearing is now over, additional hearings are scheduled on the issue of whether Owens received effective assistance of counsel, with no rulings expected for months. Ray is also appealing his conviction.