Bad Prosecutors

The Colorado Supreme Court has unanimously overturned a murder conviction after it was determined that prosecutors from the 18th District (which includes Arapahoe County) withheld evidence from defense attorneys in a case where the current DA and his predecessor had sought the death penalty. The opinion is here. A failure to disclose exculpatory evidence to the defense in a criminal case is also an ethical violation on the part of the prosecution attorneys involved. Specifically, it violates Colorado Rule of Professional Conduct 3.8(d). This provides that:

The prosecutor in a criminal case shall: . . . (d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal[.]

Only the language in bold is applicable in this case which never reached the sentencing phase and did not involve a protective order.

In this case, the Colorado Supreme Court explains that prosecutors were aware of the evidence that would have supported the defendant's theory of the case, that another suspect committed the murder, at the outset, but failed to disclosed it to the defense for fifteen months (and only after a conviction was secured after a jury deliberated for four days and was nearly deadlocked) and that the prosecutors instead took steps to segregate the exculpatory information from the discovery provided to defense counsel.

This was flatly culpable and unethical conduct.

In short, Arapahoe County's prosecutors, who are, by far, the most harsh in state, were wiling to breach their ethical obligations in order to secure a death sentence. This is very serious misconduct and we can only hope that the prosecutors involved will face professional discipline resulting in suspension of their licenses or disbarment.