A Colorado senior judge overseeing a La Plata County homicide retrial denied a motion this week to dismiss the case based on what defense lawyers called “outrageous governmental conduct,” court records show.
Tommy Mitchell, a Farmington man convicted in 2014 of first-degree murder, is scheduled for retrial in mid-August on allegations related to the 2012 death of Joey Benavidez. The Colorado Appeals Court in September overturned Mitchell’s 2014 conviction and life-in-prison sentence for killing Benavidez, citing judicial bias from 6th Judicial District Court Chief Judge Jeffery Wilson.
Mitchell’s attorneys, John Baxter and Carmen Brooks, argued that the court should dismiss the case based on “numerous instances of governmental misconduct” in the 2014 trial. While Senior Judge John McMullen agreed with defense council that conduct by former 6th Judicial District Attorney Todd Risberg and law enforcement may have been improper, it did not rise to the legal standard of “outrageous conduct,” McMullen wrote in a June 24 order.
“(The conduct) did not compromise the integrity of the court so as (to) defeat available remedies, and while on the whole could be fairly described as reprehensible, it did not rise to the level of violating fundamental fairness and being ‘shocking to the universal sense of justice,’” McMullen wrote in reference to defense attorney allegations.
‘Shocking to the universal sense of justice’Defense attorneys claim in a 46-page motion in January seeking to dismiss the case that the former district attorney and law enforcement committed perjury; the prosecution misrepresented Colorado Bureau of Investigation policies on evidence testing; the district attorney failed to disclose agreements with co-defendants; prosecutors improperly charged a defense attorney representing a co-defendant with a crime; prosecutors misrepresented a drive-by shooting as the motive for the killing; and prosecutors accused a co-defendant of first-degree murder charges when there wasn’t evidence to support the claim.
Specifically, and respectively, the defense says:
Prosecutors and law enforcement lied about the location of a butterfly knife at the crime scene.Defense attorneys were prohibited from viewing bagged evidence based on false information about contaminating evidence.Prosecutors arranged undisclosed plea deals with co-defendants who agreed to testify as witnesses against Mitchell. Local defense attorney Brian Schowalter, who was representing a co-defendant, was charged with tampering with evidence and made unavailable to his client, which prejudiced Mitchell’s case.Prosecutors claimed a motive for the murder that was inaccurate. A first-degree murder charge against a co-defendant changed to a misdemeanor plea after the co-defendant agreed to cooperate and testify against Mitchell.“The conduct of the district attorney and law enforcement in Mr. Mitchell’s case violates fundamental fairness and is shocking to the universal sense of justice,” defense attorneys wrote. “Therefore, all counts against Mr. Mitchell must be dismissed. ...”
‘Good faith mistakes’In a response to the motion, prosecutors said the alleged conduct did not rise to the level prejudicing the trial. The Feb. 6 response claims Mitchell’s attorneys had ample time and information to prepare a defense and took every measure to correct misrepresentations before a jury.
District Attorney Christian Champagne said in the February motion that the trial wasn’t prejudice, specifically because:
Investigators were not malicious in misrepresenting the location of the butterfly knife; rather, they simply could not recall the exact location before reviewing video evidence.Prosecutors were mistaken about the CBI evidence policy and later corrected the record.Defense attorneys were able to reference plea deals made with co-defendants throughout trial proceedings.Schowalter’s indictment may have been “arguably incorrect,” but it in no way affected defense council’s preparation for the case.Prosecutors’ misrepresentation of a drive-by shooting as a motive occurred because of incorrect information provided by a witness and was done in good faith. Downgrading allegations against a co-defendant from first-degree murder to a misdemeanor charge was the product of new information, not a plot against the defendant. “The reality is that, while mistakes were made, those mistakes were good faith mistakes made by humans who make mistakes,” Champagne wrote in his response to defense allegations of misconduct. “The reality is council for defendant, while raising legitimate mistakes made by the District Attorney’s Office, cannot demonstrate prejudice or that the integrity of the court system was negatively affected as to each and every claim made in defendant’s motion.”