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Mark Ellis Remains in Prison Even Though Sex Assault Conviction Is Tossed

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Update below: A Jefferson County man who's spent the last thirteen years in prison for sexually assaulting his daughter may have been wrongly convicted and could soon be freed. But Mark Ellis, who has always maintained his innocence, isn't out yet. That depends on whether the habeas corpus ruling by U.S. Senior District Judge Richard Matsch, which orders the state to retry Ellis or release him, stands up on appeal.

Matsch's decision, issued in December and now under attack by the Colorado Attorney General in the Tenth Circuit Court of Appeals, raises a host of questions about the disturbing case, the adequacy of the police investigation, and particularly the actions of Ellis's own lawyer at trial, Rowe Stayton, a well-regarded expert at defending clients accused of child sexual abuse. After hearing extensive testimony at post-conviction hearings and reviewing trial records, Matsch concluded that Stayton was ill-prepared for trial, failed to call key witnesses to testify and put on such a poor defense that Ellis's constitutional right to effective counsel was violated. 

Allegations that Ellis had sexually assaulted his nine-year-old adopted daughter, referred to in court records simply as V.E., surfaced at a time when Ellis and his wife, a Jefferson County sheriff's deputy, were going through a divorce. The initial outcry was raised, not by the girl, but by an older brother —  who, it later turned out, had been sexually abusing the girl himself. Although the girl displayed an unusual degree of sexual knowledge for her age, it was Ellis's contention that the graphic descriptions she provided to authorities derived from the abuse inflicted by her brother, who was angry with Ellis over the divorce and eager to deflect blame to him. 

The only physical evidence against Ellis was a blanket the police took from the victim's bed, which contained Ellis's DNA in semen traces. But testimony indicated that the blanket was used in other rooms, too, and that Ellis had used it while sleeping on the couch, once the marriage was on the rocks, and occasionally masturbated there. 

Although the case was a weak one from an evidentiary standpoint, many prosecutions for child sexual assault rely strongly on victim testimony; for many reasons, juries are inclined to "believe the children" in such matters. Challenging the credibility of the victim, and persuading the jury that she'd been "coached" and manipulated into her account of multiple sexual assaults by her brother and the defendant's ex-wife, were crucial elements of Ellis's defense. 

But Stayton put on little direct testimony on his client's behalf, seeking to make his points largely on cross-examination of the state's witnesses. He didn't call previously endorsed expert witnesses, including two psychologists already familiar with the family dynamics. He ignored recommendations from his own defense investigator and failed to elicit testimony from other family members that would support the contention that V.E. had been coached. The jury found Ellis guilty on four counts of sexual assault on a child, and he was eventually sentenced to four concurrent terms of twelve years to life.

Testimony at subsequent hearings indicated that Stayton had been overburdened with cases at the time of the Ellis trial. He had another trial the week before Ellis went to court and another right afterward. His wife had filed for divorce just weeks before the trial, and he was wrestling with other personal crises as well. As one summary puts it, "Mr. Stayton explained that his mother had shot herself in an unsuccessful suicide attempt, and that this had resulted in a family dispute regarding who would be custodian of Mr. Stayton's older sister, who was a quadriplegic from an accident."

In his own review of Stayton's efforts, Matsch describes the attorney's performance as "glaringly deficient.

"The only reasonable explanation for those omissions and decisions," he writes, "is that Stayton neglected developing evidence because he was in the midst of professional overload and personal crises in the time leading up to Ellis's trial.... The bottom line is that Stayton tried Ellis's case without adequate preparation or an understanding of many important aspects of the case. He had theories, but he failed to investigate, develop, and present evidence to persuasively support those theories, and there is simply no strategic reason why he failed to do so."

Stayton, whose attorney registration in Colorado is now listed as inactive, could not be reached for comment. Matsch's order for the release or retrial of Ellis is being strongly challenged by state attorneys, who contend that Stayton's defense was not deficient; Gail Johnson, the Boulder attorney representing Ellis in his federal appeal, is expected to file a response in the next few weeks. The victim, V.E., has never formally recanted her allegations but has written letters to the court asking that Ellis be released from prison. She has also reportedly told other relatives that she can't recall her childhood traumas with certainty and may be afflicted with "false memory syndrome."

The case has strong similarities to another dubious sex-assault conviction we've covered in some detail over the years — one involving Charles Farrar, who was found guilty by an Arapahoe County jury in 2002 of multiple counts of sexual assault on his stepdaughter, Sacha. In that case, there was no supporting physical evidence, and his accuser recanted a year after the trial, admitting that she'd made up the story in hopes of being sent to stay with her grandmother. But Farrar is still in prison, serving a 145-year sentence for a crime that both he and his alleged victim say never happened. There's now a petition on change.org seeking Farrar's release, and an expected appeal of his case, along the lines of that in the Ellis case, is expected to be filed in federal court shortly.

Update: Ellis attorney Gail Johnson issued this statement in response to a request for comment: "Mr. Ellis is innocent and was wrongly convicted. An experienced senior federal judge has now ruled that the lawyer who defended Mr. Ellis at trial did not meet minimal constitutional standards for competent criminal defense. Mr. Ellis is grateful for the strong support he has received from his family over the years he has been incarcerated, including his brother, his sister, and his two biological daughters, all of whom believe in his innocence. He wishes the State would drop its appeal so that he could move forward with a new trial and ultimately putting this long nightmare behind him once and for all."

Read Judge Matsch's decision in the Ellis case below.

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