Calhoun: Wake-Up Call

Molly Midyette, convicted of child abuse for her baby's death, has a hearing for a new trial

In December 2007, Molly Midyette was convicted of child abuse that led to the death of her ten-week-old son, Jason, and sentenced to sixteen years in prison -- even though she was at work and her husband, Alex, was watching the baby at the time.

This week, she'll be out of prison and back in Boulder, where her lawyers will argue that Molly Midyette deserves a new trial -- and a new judge.

Allison Ruttenberg and Tom Carberry are working on Molly's case pro bono; they argue that she was abused emotionally and psychologically by her husband, Alex Midyette, and his father, prominent Boulder developer J. Nold Midyette, as well as the family's attorney -- to the point that she could not assist in her own defense after the death of her baby boy in February 2006.

Paul McCormick was the attorney representing the couple then, and while he continued to work on behalf of Alex -- who was later convicted of criminally negligent child abuse in a separate trial and sentenced to sixteen years -- he also kept talking to Molly, which her current attorneys argue is one of the reasons she deserves a new trial. Her previous attorney, Craig Truman, has accused McCormick of betraying Molly Midyette; she was so intimidated by her husband's family that she could not even tell her own lawyer of her suspicions that Alex might have been involved in Jason's death.

That's what Molly Midyette insisted to Westword writer Joel Warner in the first interview where she spoke out. Immediately after her conviction, she remembers saying to Truman, "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." In a far-ranging prison interview, she told Warner how Alex's family had intimidated her, and how their lawyers had manipulated her so that she would not accuse her husband of being involved in the boy's death.

And since Boulder District Judge Lael Montgomery went to law school with Montgomery, and did some contract work for him, Molly's attorneys are arguing that she should recuse herself from the hearing on a new trial. Montgomery officially retired on October 1, but agreed to stay around for this hearing in a case she was on from the start.

The Molly Midyette motion, filed on October 14, concludes with this:

Mr. McCormick represented Molly and Alex Midyette at the hospitals in February 2006. McCormick never withdrew from representing Molly. Mr. McCormick had frequent discussions with Molly about the case before trial, including about factual and medical issues. Mr. McCormick advised Molly about her testimony on the eve of her testimony. Every time Mr. McCormick discussed the case with Molly he reinforced the attorney-client relationship that began on February 24,2006.

Judge Montgomery had a duty to disclose her relationship with Mr. McCormick. Even if she did not have a duty to disclose it before trial, once Mr. Truman filed his motion accusing Mr. McCormick of extreme dishonesty and of betraying Molly Midyette, Judge Montgomery had a duty to disclose her relationship and to disqualify herself. Her prior relationship requires disqualification, particularly in light of Mr. McCormick's boasting that the relationship would benefit his client, when in fact his client did achieve a much better result than did Molly Midyette.

Judge Montgomery deliberately ignored basic law that all lawyers must know. Every time Judge Montgomery ignored the law, she came to a result that benefitted Mr. McCormick and Alex Midyette and harmed Molly Midyette. Judge Montgomery's Order of September 16, 2011 finds no support in the facts or the law and shows her continuing bias against Molly Midyette. This objective evidence of bias requires recusal.

For these reasons, the Defendant, through counsel, respectfully asks Judge Montgomery to recuse herself from this case.

Prosecutors from the Jefferson County District Attorney's office are facing off against Molly Midyette's attorneys because several Boulder prosecutors who worked on the original case may testify. While Montgomery may have gone to law school with McCormick, they note that as a prosecutor she often opposed him in court, too.

There are a lot of additional claims in the various motions, too. The hearing on a new trial was originally scheduled for September; instead, it will start today and continue through the week.

More from our Calhoun: Wake-Up Call archive: "Travel + Leisure says Denver is tops in microbrews, at the bottom in diversity."

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Patricia Calhoun co-founded Westword in 1977; she’s been the editor ever since. She’s a regular on the weekly CPT12 roundtable Colorado Inside Out, played a real journalist in John Sayles’s Silver City, once interviewed President Bill Clinton while wearing flip-flops, and has been honored with numerous national awards for her columns and feature-writing.
Contact: Patricia Calhoun