Judge to DA Chambers: rape case decision "arbitrary, capricious"

An Arapahoe County judge has issued a scathing order calling for a special prosecutor in a sexual assault case, while at the same time describing the local district attorney's excuses for failing to pursue the controversial case for the past nine years as "unpersuasive" and unreasonable.

Judge Carlos Samour Jr.'s written ruling, issued May 22, is a further elaboration of an unusual decision we reported on last December in "CU in Court," after a hearing in which an Aurora police detective testified that prosecutors had declined to file the case because they didn't want to "jump on the CU bandwagon" of rape allegations. The alleged assault dates back to an Eaglecrest High School graduation party in 2000, during which a young woman drank too much and was driven home by star quarterback Clyde Surrell. She awoke hours later in her car, half-clothed, spattered with mud and in pain. Surrell and another youth initially denied having any sexual contact with her. Both later claimed consensual sex after other witnesses contradicted their accounts and Surrell's DNA popped up in rape-kit test results. Surrell went on to play football at the University of Colorado and later became embroiled in CU's recruting scandal.

Based on the DNA evidence, investigators initially believed they had a strong case against Surrell, despite the alleged victim's inability to recall details of the evening. But the young woman, who asked to be identified only as Julie, was at first reluctant to prosecute. After the CU scandal broke, she arranged a meeting with prosectuors in 2004, determined to pursue the issue, only to be told the case wasn't strong enough to bring to trial. She was told the same thing again in 2007 by Arapahoe County DA Carol Chambers, who inherited the case from her predecessor but then turned it over to a Larimer County prosecutor for review -- who agreed with her office's decision to drop it.

But Judge Samour believes the hot-potato case was shelved not because of evidentiary problems but possible fears about public backlash over yet another high-profile rape case involving a CU player.

"The evidence in support of [Julie's] claims is more than sufficient to file charges and obtain convictions," Samour writes. "The Court concludes that Ms. Chambers' continuing refusal to file such charges is... unjustified, arbitrary, capricious, and without reasonable excuse."

Samour points out that while prosecutors may have had a legitimate reason to delay going forward in 2001, given the victim's emotional state at the time, that problem was removed three years later. Yet Chambers' office refused to take action even after Julie came to them and informed them she wanted to proceed -- even though Chambers, who has campaigned twice on her record of being tough on crime and a champion of victims (see my 2007 feature, "The Punisher"), has pursued similar cases involving incapacitated assault victims.

Chambers has until July 6 to suggest a special prosecutor in the nine-year-old case. The judge's 91-page ruling, featuring a point-by-point refutation of prosecutorial excuses, can be found here.

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