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."