"Estimates are that the restart will cost hundreds of thousands of taxpayer dollars," reads one document prepared by Owens attorney Jim Castle. "All to reach a result that will then be the subject of federal litigation that will scrutinize the fairness of a process which, for a technical violation, removed a judge who had presided over a case for ten years."
On Thursday, Castle and three other attorneys filed a petition on Owens's behalf with the Colorado Supreme Court contesting the decision. The petition states that "the lack of transparency and due process surrounding Judge Rafferty’s sudden removal is astounding, troubling and undermines public confidence in the judiciary. "
After separate trials, Judge Rafferty sentenced Owens and co-defendant Ray to death for the 2005 murder of Javad Marshall-Fields, who had been expected to testify against the two men in another homicide investigation. (Owens also received the death penalty for the murder of Marshall-Fields's fiancée, Vivian Wolfe, while Ray got life without parole for her death.) Their prosecution, one of several death-penalty cases pursued by former Eighteenth Judicial District Attorney Carol Chambers, was conducted in an atmosphere of exceptionally stringent security, with attorneys subject to gag orders, many court motions filed under seal, witness names purged from documents, and transcripts denied to news organizations — all ostensibly to protect witnesses from possible intimidation and reprisals. Although Judge Rafferty finally made a redacted version of the court records publicly available in 2014, many details, including the identity or location of some witnesses referred to by names such as "Source 56," remain secret.
At a series of post-conviction hearings in 2014 and 2015, attorneys for Owens raised several issues about possible government misconduct before and during the trial, including failing to disclose exculpatory or impeachment evidence and allegedly 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. During the course of the hearings, Judge Rafferty made several rulings and observations that indicated he believed that the prosecution had committed some missteps in the complex case; whether those errors were sufficient to order a new trial is another matter.
But eight months after the hearings concluded, Rafferty had still not issued his final order in the matter; he reached the mandatory retirement age of 72 last January. As is customary in such instances, he was reappointed on a short-term contract in order to complete the decision. Before that contract took effect, however, he had accepted an "of counsel" position with a private law firm; his name appears on legal documents filed by that firm in an unrelated federal case.
E-mails in February between Mindy Masias, the State Court Administrator's Office chief of staff, and Eighteenth Judicial District Chief Judge Carlos Samour indicate that both were aware of Rafferty's outside employment; Masias reported that Rafferty "does not intend to work for a firm that would cause a conflict of interest in the future." Rafferty resumed work on the Owens case under contract in March. But the contract was abruptly terminated in mid-April; a Masias letter to Rafferty cites "your failure to inform me or Chief Judge Samour of the existence of your ongoing employment agreement with the law firm of Collins & Coldwell, LLC and to seek authorization for such employment" as the reason for his removal.
The Owens petition states that, despite extensive records requests, his defense team has been unable to learn specifically why Rafferty was fired or who gave the order; they have also been unable to determine that Rafferty did any work for the private firm after his state contract began in March. By contrast, a similar complaint with the state's judicial disciplinary committee about a part-time judge's possible conflicts over his work for a private firm was dismissed in 2015 as a minor matter. Rafferty's termination didn't involve any disciplinary infraction or sanction, yet the SCAO took the "unprecedented" step of issuing a press release to announce his termination, the petition notes.
A spokesman for the judicial branch would not elaborate on the specific reasons for the move beyond what's stated in the Masias letter. Rafferty could not be reached for comment.
A spokesperson for Eighteenth Judicial District Attorney George Brauchler said that prosecutors are "extremely disappointed by the potential for delay that the re-assignment to another judge may cause," but that the decision to remove Rafferty "is completely a matter for the state judicial department."
The Owens case has since been assigned to soon-to-be-retired Judge Christopher Munch in Jefferson County. Ray's fate is now in the hands of Arapahoe County District Judge Michelle Amico. Both judges will likely have to schedule new hearings to address the post-conviction issues, bringing witnesses back to testify about events now eleven years distant. The judges will be expected to pore over 28,000 pages of trial records and a post-conviction record that is just as long, as well as thousands of exhibits in the case. The entire process is expected to take years.