Questions remain whether the 22nd Judicial District will decide to retry accused murderer Farrell Greenlee a second time after the court in October vacated his 2005 conviction of second-degree murder.
A status hearing has been scheduled for Nov. 27 to discuss the case.
District Attorney Russell Wasley, who likely would not be prosecuting a second potential trial since his term ends in early January, said a lot has yet to be decided.
A status conference has been set for November, Wasley said in an email. “At a future date, the case could be set for trial. As with every case, a charge is only an accusation, and the defendant is presumed innocent unless proven guilty.”
Incoming DA Will Furse, who defeated Wasley in June’s Republican primary, said he is unable to make any comments regarding the Greenlee case at this time.
Professor Kristian Miccio, whose specialty is criminal law and procedure at the University of Denver Sturm College of Law, said a second trial will not be easy and would likely be very expensive.
Miccio said the seven years it took for the court to issue a ruling on Greenlee’s appeal is not uncommon because the appellate court does not move that quickly.
Miccio, a former New York prosecutor, said appeals claiming ineffective counsel are almost never successful because the burden is to prove that the defense attorney did not know the law, and has nothing to do with strategy.
She said it appears Greenlee’s defense attorney, David Greenburg, did not realize he could call witnesses to rebut the testimony from a witness for the prosecution.
“The standard is very high,” she said when talking about appeals based on ineffective counsel. “Not calling witnesses that would contradict the prosecution’s witness is really bad.”
Greenburg and the Greenlee defense team failed to call Randy Matthews. He was the witness who would have contradicted a statement made by prosecution witness Calinda Forristall about a statement Greenlee allegedly made about what he would do with a body if he ever killed anyone.
She said Greenburg and the defense has no excuse for not calling Matthews to the stand, which she said is why the conviction was vacated.
She said when she worked as a prosecutor, 99 percent of the filed appeals were rejected by the appellate courts.
“It’s very rare. This is huge,” the law professor said, noting the trial court vacated the conviction, not a higher court.
However, the court of appeals in a prior motion did vacate the conviction, saying the statements made by a prosecution witness should have been ruled inadmissible. The state asked the appeals court to reconsider its decision, and when the court stood by the decision, a state appeal was made to the Colorado Supreme Court which reinstated the conviction, saying the statements were admissible.
Ultimately District Court Judge Jeffrey Wilson vacated the 2005 second-degree murder conviction against Greenlee, citing ineffective assistance of counsel.
Miccio sided with Judge Wilson, saying if this testimony had been given to the jury, Greenlee might have had a good shot at earning an acquittal.
She said finding witnesses who testified in the first trial to testify again in a second trial would not be difficult if they still lived in the area.
“There are ways to find folks, especially the ones who have (police) records,” she said.
Miccio said what prosecutors must decide is if there is still enough evidence to convince a jury to come back with a guilty verdict, and added every prosecutor she knows would weigh the expense of the trial with the likelihood of conviction.
She said besides the memories of witnesses, forensic evidence will need to be looked at again, which could be difficult if any of it has decomposed over time.
“All of that goes into consideration,” she said. “You have to do more investigation.”
She added some of the evidence used in the first trial can be used in a second trial.
Miccio also predicts a problem for the prosecution if Matthews is called to testify for the defense in a potential second trial, but also said that because the prosecution knows Forristall’s testimony might be contradicted may not call her to the stand a second time.
She also said Matthews and Forristall do not have to testify and have no obligation to talk to the prosecution before the trial, so calling either one to the witness stand under these circumstances would be a gamble.
“This is really amazing,” Miccio said. “It remains to be seen what (prosecutors) are going to do.”
Greenlee, who is currently being held in the Montezuma County Jail, was initially sentenced to 48 years in prison for killing Marcie Stewart-Jacobson in December of 2003. He was convicted of the crime in January of 2005. In 2010, Greenlee’s sentence was reduced to 38 years.