Tuesday, December 30, 2008

James Webb and Criminal Justice Reform

The Washington Post reports that Senator James Webb (D-VA) will propose a national panel to review our broken criminal justice system. Webb is quoted in the article saying "I think you can be a law-and-order leader and still understand that the criminal justice system as we understand it today is broken, unfair, locking up the wrong people in many cases and not locking up the right person in many cases."

You can read the article at http://www.washingtonpost.com/wp-dyn/content/article/2008/12/28/AR2008122801728_2.html?hpid=topnews.

I encourage you to send your support for Senator Webb to his web page at http://webb.senate.gov/contact/.

Monday, December 29, 2008

Submitting to Authority

A column by Adam Cohen from today's New York Times:

In 1963, Stanley Milgram, an assistant professor of psychology at Yale, published his infamous experiment on obedience to authority. Its conclusion was that most ordinary people were willing to administer what they believed to be painful, even dangerous, electric shocks to innocent people if a man in a white lab coat told them to.

Now, 45 years later, that experiment has been repeated by Prof Jerry Burger of Santa Clara University--with the same results. Read the entire article at http://www.nytimes.com/2008/12/29/opinion/29mon3.html?_r=1&ref=opinion.

Cohen concludes his column saying:

An instructor at West Point contacted Professor Burger to say that she was teaching her students about his findings. She had the right idea — and the right audience. The findings of these two experiments should be part of the basic training for soldiers, police officers, jailers and anyone else whose position gives them the power to inflict abuse on others.

Let's add to that list jurors, who all too often unquestioningly accept what authorities say despite the tragic consequences a wrongful conviction brings.

Tuesday, November 11, 2008

An Addition to this Web Site

Over the years we've maintained BearingFalseWitness, we've added volumes of material. On this, a quiet day for me, I've seen the need to provide a simple summary of Todd's case--what really happened that night. So, we've added a "Case Summary" page. It details the prosecution's central claims and exposes how things went wrong during the investigation and prosecution of the case. Please read it. As always, we appreciate the comments of visitors to this site.

Wednesday, October 15, 2008

I Am Ahab

For two years now, Todd has written a monthly column published in Newspeak, a Colorado Springs tabloid. Many of his columns are published here on this web site.

Now, readers of the column, "I Am Ahab," can view the column at Newspeak's newly designed web site, which includes an archive of past editions.

Todd's brother, Joel, fills in as a guest columnist this month with a piece that explains where we stand in our continuing legal battle.

Monday, August 18, 2008

Amy Mullaney and a Questionable Deferred Sentence

Today's Gazette carries an article speculating on personnel changes in the DA's office. Will Amy Mullaney be retained? The role she played in granting a deferred sentence to Brad Orgill can inform that decision.

A closer look at the circumstances surrounding Orgill's deferred sentence raises questions that Mullaney may not want to answer. You see, Orgill turns out to be the only person confronting Anthony Madril on the night Madril was killed. Orgill and Madril fought a fierce and bloody fight, which was witnessed by Madril's friends. According to his friend and witness, Chas Schwartz, Madril emerged from the fight saying "I've just been stabbed." Orgill's clothing was covered in Madril's blood.

Despite having been warned by others that a deferral may not be in the best interest of justice, Mullaney offered one to Orgill before the CBI crime lab even received all the evidence in the case. Almost a year after Mullaney gave Orgill the deferred sentence, the Colorado Springs Metro Crime Lab released a report stating that Orgill could not be ruled out as Madril's assailant.

Another item of interest: About four months after being given his deferred sentence, Orgill, then 30, was accused of rape by a nineteen-year-old woman. He admitted to having provided the under-aged woman with alcohol, but insisted that their sexual contact was consensual. The woman received a medical exam, which confirmed sexual contact; the DA's office paid for the exam and the DA's office is listed as a releasee for the medical report.Orgill told the investigating police officer that he was on a deferred sentence as an accessory to murder.

About a month later, the rape accusation was settled in a most curious way: the police officer, Orgill, and Orgill's attorney sat down together, chatted about the attorney's trip to Sturgis, and then made a pretext phone call to the accuser and got her to drop the charges. When queried about the practice of making pretext phone calls to alleged rape victims, both TESSA and CSPD said that such calls would be highly unusual--if ever--made. Although providing alcohol to a minor is a violation of Orgill's deferral, as far as I know, there have been no repercussions.

The question for Mullaney: Do deferred sentences such as this one serve justice or some other agenda? The question Dan May--and Colorado Springs--faces: Should Mullaney stay or go?

Saturday, August 16, 2008

Evidence and Bad Science

Today we learn that we now have proof of the execution of a man in Texas for a crime he did not commit. For details see this.

What makes this revelation especially significant is that the evidence was not DNA. Rather, it was the forensic analysis of fire evidence to determine if arson was the cause. We see in this case the tragic consequences when investigators and prosecutors seek convictions over truth.

Innocents in Prison

A paragraph from an August 7, 2007 article in The Atlantic:

Samuel Gross, a University of Michigan law professor, has calculated that 2.3 percent of all prisoners sentenced to death between 1973 and 1989 have been exonerated and freed. His research suggests that the vast majority in fact did not commit the crimes. And an unknown number of innocents have not been exonerated.
Read the entire article for some thoughtful commentary on the prevalence of wrongful convictions.

Thursday, August 14, 2008

John Newsome's Legacy

In Tuesday's primary election Dan May clobbered incumbant DA John Newsome. Over 60% of those voting voiced their displeasure with Newsome, largely because of his cavalier drinking on the job and apparent laxness in reporting travel expenses. For us there's more.

It was Newsome who replaced the now-victorious Dan May as his deputy with the much younger and less experienced Amy Mullaney. Mullaney, some may recall was exposed as John Newsome's drinking buddy by TV station KOAA. Mullaney's response to allegations that she, too, was drinking during working hours was that since she was on salary, she had no "working hours," so therefore couldn't possibly have been drinking on the job.

It was the inexperienced Mullaney who rushed to indict our son and who insisted on a premature plea agreement for Brad Orgill, the only person seen fighting with Anthony Madril.Both Newsome and Mullaney came into their positions with an excess of hubris that has not served the people of El Paso and Teller Counties. Nor has it served justice.

Congratulations are in order for Dan May. He'll have plenty of work to do in trying to restore integrity to the office of District Attorney and to the El Paso County Sheriff's Office. Sheriff Terry Maketa was a vocal supporter of Newsome, and Maketa has allowed his people to perform less than admirably. In our son's case, we saw his people bending the truth in sworn testimony, and mishandling of crucial evidence.

All of us can only hope that the new leadership will bring needed reforms and personnel changes.

Saturday, August 09, 2008

Evidence, Guilt, and Innocence

We've discussed elsewhere the evidence problem that haunts Todd's conviction. Many have been astonished to learn how fast and loose our legal system permits the prosecution to play with vital evidence. A new web site, EvidenceDestruction.info offers a concise description of the legal precedent that permits authorities to dispose of potentially exculpatory evidence with impunity. Take a look at the sad, but true story of Larry Youngblood and David. It's a 20-year-old US Supreme Court that sets the standard for evidence preservation. While you're at EvidenceDestruction.info, take a moment to voice your opinion on the poll you'll find there.

Friday, August 01, 2008

An Inconvenient Rape

In the July 31, 2008, Gazette, John Newsome touts his “record as district attorney and the great things we’ve done.” Newsome goes on to talk about his new programs; among them are the “special victims unit, which handles prosecutions of sex offenders, more emphasis on economic crimes by using racketeering laws to bring down identity theft rings and attempting to stem the flow of methamphetamines from Mexico.”

Newsome points to “the support of local law enforcement, including the Colorado Springs Police Protective Association, El Paso County sheriff and the Teller County sheriff as one of his biggest strengths.”

One of our chief complaints about the District Attorney’s office is the inconvenient rape his office failed to prosecute (see the details here). When a 19 year old female alleged that Orgill sexually assaulted her (after Orgill had been given a four year deferred sentence and he was the prosecution’s star witness against Todd), she was charged with false reporting (after the trial and before Todd’s sentencing and only after the court ordered the prosecution to release this information that they failed to release before Todd’s trial). In fact, Newsome’s deputies Lindsey and Rikeman vouched for Orgill’s character in court. A policeman with the Colorado Springs Police Department assisted Orgill and his attorney with placing a pretext telephone call to this young person (Brad’s second alleged sexual assault victim). Just months before Orgill’s bloody fight with Anthony Madril, Orgill was approached by the Colorado Springs Police for purchasing child pornography online with his credit card; however, the investigation never proceeded beyond having the police come to his house to ask him questions, it just “went away”.

Having the “support of the Colorado Springs Protective Association” may indeed be helpful to Newsome, especially if it allows an economic crime of a friend to go through months of “investigation” without a recommendation to prosecute. In this case, the prosecutor’s office and police department might better be described as being in collusion. This relationship is also useful if the prosecutor himself along with his second-in- command are breaking the law and are not held accountable. The “support” of the local police and sheriff are only positive to the community if the integrity of all is intact. If, however, evidence is altered, victims are further victimized and criminals are protected from prosecution in order to protect those in power or because of relationships with those in power, there is a real problem with the system. Such a system might be described as developing tunnel vision/confirmation bias; at worst it is a system that is corrupt and views “justice” as something capriciously administered or denied at the whim of the district attorney’s office.

Sunday, July 27, 2008

Politics and Justice

How could the prosecution and sheriff’s department in El Paso County have gotten it so wrong in Todd’s case? A single error wouldn’t have accomplished this wrongful conviction the way a confluence of errors and circumstances could.

We believe the politically charged atmosphere of the District Attorney’s office in November, 2004, greatly contributed to Todd’s wrongful conviction. District Attorney John Newsome, newly elected, appointed his friends rather than keeping those people in positions who had years of experience and judgment.

His newly appointed Deputy District Attorney, Amy Mullaney, in what may have been an early attempt to prove herself as the second in command, was quick to charge Todd, and once charged, would not consider that she had made a mistake and charged the wrong person. Earlier this year, Newsome and Mullany were videoed drinking the equivalent of a 12 pack and a 6 pack of beer, respectively. Both have spouses and families; they were obviously taking time from their families to spend drinking together at a bar. Can there be an expectation of fairness and integrity in their decisions in the district attorney’s office when so little integrity is demonstrated in their personal lives? When questioned about “drinking on the job” Mullaney stated that she couldn’t be drinking on the job because she is salaried and therefore has no set hours. Having no set hours is not the same as having no hours. Perhaps more importantly, how does one make well-considered decisions after consuming large amounts of alcohol on a consistent basis?

Mullaney’s willingness to grant Brad a four year deferred sentence for accessory to murder further guaranteed the District Attorney’s office would vigorously pursue Todd’s conviction because now the only person seen fighting with the deceased had been placed beyond prosecution. Please keep in mind, Deputy District Attorney Mullaney granted the deferred sentence to Brad before the evidence was returned from CBI and almost a year before the Crime Scene Analysis was done which stated Brad could not be ruled out as the assailant.

Where was District Attorney Newsome when these decisions were being made? Was he aware of what was happening in his office or did he blindly trust his future to a relationship that would result in questions about his integrity and demonstrate his attitude of being above the law? Where was District Attorney Newsome when his department charged a 19 year old victim of false reporting a sexual assault rather than seriously investigating this crime by Brad Orgill; (this was the second female to report a sexual assault by Orgill)?

Sunday, July 13, 2008

Tunnel Vision

This weekend Bob Edwards interviewed George Mason University Professor Jon Gould, who chairs the Virginia Innocence Commission and has recently written The Innocence Commission: Preventing Wrongful Convictions and Restoring the Criminal Justice System.

A frequent characteristic of wrongful convictions is what Gould describes as "tunnel vision." It's also called confirmation bias, the tendency to ignore facts that don't square with one's preconceived ideas. In eight of eleven exonerations in Virginia tunnel vision was present.

Tunnel vision was surely present in Todd's case. The authorities decided early-on to charge him, well before they had time to analyze evidence and witness statements. When Det Rick Frady wrote up his report of an interview with witness Chas Schwartz, he conveniently failed to mention some of the most exculpatory content of the interview. Frady explained later that he hadn't been able to review the video of the interview before writing his notes because he thought the VCR had failed to work properly. So he relied upon perceptions colored by his tunnel vision. The prosecutors themselves were unaware of the existence of this videotape until a week into the trial.

Even worse, though, than Frady's tunnel vision was prosecutor Amy Mullaney's tunnel vision. She actually decided to rush a plea agreement with Brad Orgill, the only person seen to have been fighting with victim Anthony Madril, months before the State Crime Lab even began its forensic evaluation of the physical evidence. And almost a year before the Colorado Springs Metro Crime Lab determined that Orgill could not be ruled out as the assailant.

The Virginia Innocence offers the following common-sense suggestions for reducing unwarranted focus on on single suspect or "Tunnel Vision":

  1. Tunnel vision, in which officers jump too quickly to the conclusion that a particular suspect is guilty or focus solely on one person to the exclusion of other viable suspects, is a special danger in law enforcement. Law enforcement agencies should train their officers to document all exculpatory, as well as inculpatory, evidence about a particular suspect/individual that they discover and to include this information in their official reports to ensure that all exculpatory information comes to the attention of prosecutors and subsequently to defense attorneys.
  2. Law enforcement agencies should train their officers to pursue all reasonable lines of inquiry, whether they point toward or away from a particular suspect.
  3. During the initial training of their officers and during refresher training for experienced officers, law enforcement agencies should present studies of wrongful convictions to highlight the pitfalls of “tunnel vision.”

All good ideas.

Addendum to my last post

Sometimes I don't get a chance to share my blog entries with Todd before I post them. Such was the case with my last posting. Todd is always true to his commitment to truth and really felt that I had overstated any value that the video outside of the Appaloosa had. Todd said, "Frankly, you couldn't see a damn thing of value." We continue to believe that the intent of this video was for the jury to project their own prejudices and fears onto this scene that the prosecution presented to them.

Today when I visited Todd, we discussed the fact that the detectives from the sheriff's office showed only Todd's photo in the lineup that they presented to Lopez and Schwartz. Brad's photo was never shown in the lineup, despite the fact that Lopez and Schwartz had described Brad when they talked about Anthony Madril's assailant. (Brad is 5"9" and weighs at least 270 lbs.; Todd is 6"3" and weighed 180 lbs. at the time: short and fat vs tall and thin.) Schwartz and Lopez could did not identify anyone; they said, no, he had pudgy cheeks. The fact that Brad's photo was not in the lineup we believe demonstrates that from the beginning, the sheriff's detectives were not allowing him to be identified as the assailant and were setting Todd up for what they knew to be a wrongful conviction.

It seems each time our family talks about Todd's wrongful conviction, we remember some other incredulous way in which the sheriff's office and prosecution deprived him of his constitutional right to a fair trial.

Thursday, July 10, 2008

Courtroom Strategies Defeat Justice

It’s impossible to note all the things that shocked us as Todd’s case proceeded to trial. Prosecutors Stephanie Rikeman and Jeff Lindsay sequestered Bill (put him on their witness list) so that he could not support Todd and our family during this unbelievably stressful time. Phil Tate argued the case according to his own assumptions rather than arguing the case based on truth and the overwhelming evidence supporting Todd’s innocence. Ultimately, Tate’s unwillingness to argue the truth and the prosecutions absolute disregard for truth resulted in Todd’s wrongful conviction.

The prosecution did everything in their power to drag the trial out as long as possible (at the expense of the taxpayers). When they weren’t allowed to call a witness to the stand because they had just that day turned discovery over to the defense regarding the witness, they were allowed to instead play the video from the parking lot at the Appoloosa night club without narration, so that they jurors could read whatever their prejudices were into the scenario. What the jurors should have noted was the absence of Orgil from the video because he was off arguing with the victim. Further, they should have noted Todd exiting the Appoloosa swinging a birthday gift bag and in an apparent peaceful mood. Clearly they did not make these interpretations, because while they were making their decision they actually asked to view this superfluous video, which suggests to us just how little they actually understood about the case and the decision they were making.

The prosecution also brought in one of the officers who works with their trained dogs in an attempt to “kill time” at taxpayer’s expense. He talked for what seemed like forever about how they train the dogs. In the end, when he was asked if the dog had found anything, he answered, “No”. More wasted time, more wasted money.

Further, the prosecution’s “experts” were willing to say whatever they needed to help the prosecution and convict Todd without any regard whatsoever for truth. Don Richer, the prosecution’s knife “expert” testified on the witness stand that he saw black debris on the knife when it was first received into custody. This debris came up missing while in the custody of the sheriff’s office. Later in the trial, this same Don Richer got back on the stand and testified that Todd cleaned his knife. The presence of the black debris on the knife was evidence that the knife was not cleaned by Todd; it is unbelievable that the person who saw the debris earlier could then accuse Todd of cleaning the knife!

As noted in earlier writing, the prosecution also refused to test the DNA on Todd’s jacket. This had to be done at Todd’s expense; further the prosecution required that both a representative from the laboratory in California and the expert witness be flown in for testimony in the prosecution’s attempt to deny this evidence from being used.

Further, the prosecution requested that the CBI witness, who changed her testimony from the pre-trial hearing to the trial, be allowed to sit with them during the questioning of the expert witness (Todd’s defense attorney’s didn’t object!). At the pretrial hearing this CBI witness testified that there was no black debris on the knife when it was delivered (two months after it was supposed to have been sent) to CBI. At the trial, this same CBI witness implied that there was some sort of smear that perhaps was a blood smear on the knife. It must be noted that this was not a blood smear, tests did not support her statement but statements made however false can and do influence juries. The prosecution, along with the CBI agent, then tried to discredit Todd’s expert witness by challenging why she called her work and education history a resume in one place and a curriculum vitae in another. Clearly, they had decided the intelligence level of the jury; their assessment wasn’t flattering to the jurors.

Even more frustrating and ridiculous, a physician from Memorial Hospital argued that Anthony Madril must have had a rush of adrenaline to be able to fight with Brad Orgill after being stabbed in both ventricles of the heart, since that was what he said he had been told by detectives. It didn’t matter to anyone that this theory made no sense. It’s not reasonable that Anthony Madril would have engaged Todd and then just left to begin fighting with Brad. Or that Todd would stab someone, put his knife away (with no blood on it) and have a non-violent confrontation with Lopez. Furthermore, no one present ever saw such an event occur, and Anthony Madril, when pulled into the truck by his friends while fighting with Orgill said, “I just got stabbed.” Prosecutors did not reveal their theory of opportunity until closing arguments which, again, we found it unbelievable that these tactics are legal. And, although Orgill had a second sexual assault allegation just months earlier, the prosecutors vouched for Orgill’s character.

God save us from “justice” in the United States, and especially, in El Paso County.

Tuesday, July 01, 2008

Truth Doesn't Matter

The first thing we learned as Todd’s attorneys prepared for trial is that no one in the legal system is interested in truth. Certainly not the district attorney, but worse, not even Todd’s own attorney. We were under the assumption that everyone tells the truth and the district attorney and investigators examine the evidence and make an honest attempt to determine truth. It became very clear that the district attorney was only interested in building a case against Todd since he was the one they had charged; whether he committed the crime for which he was charged didn’t matter…truth didn’t matter. Convicting Todd was their only hope for resolving this case in their favor and most importantly to win. Todd’s own attorney decided how he would argue the case; it didn’t matter that his theory didn’t match the facts or that his client absolutely disagreed with this approach; Todd’s frequent comment throughout preparation was that he believed that we should be focusing on the truth, nothing else. Further, Todd’s attorney was only willing to ask questions to which he knew the answer. For example, he refused to question Lopez about hitting Todd. He stubbornly decided that Lopez wasn’t wearing a ring, so probably did not inflict Todd’s face injury, ignoring statements by Swartz that Lopez carried a box cutter which used as a fist filler would account for the cuts on Todd’s face and neck, a distance of probably 4-5 inches between cuts. Todd insisted that he would not have popped the tire if he hadn’t been hit by Lopez who then jumped in the truck and locked the door. Instead, Todd’s attorney speculated on other ways Todd might have received these cuts, leaving it open for the prosecution to argue that he was hit by Anthony Madril, which was absolutely not true; none of the persons present ever saw Todd anywhere near Anthony Madril, because he wasn’t. Further, before his case went to trial, Todd requested that his attorney set up a meeting with the prosecutor on the case, which his attorney thought was a bad idea and refused to set up. In retrospect, it appears to be a very bad idea to hire an attorney from your own county. Defense attorneys make their living by negotiating plea bargains and working with the district attorney’s office, sheriff’s department and police. Our defense attorney seemed to defer to these relationships rather than defend Todd as rigorously as he should have.

Sunday, June 29, 2008

The Prelimary Hearing

The preliminary hearing was held on March 17, 2005. We were told by Todd’s attorney prior to the hearing that Todd would have to face trial. There was, of course, no choice since Brad had already been granted a deferred sentence. Brad didn’t admit to hearing Todd say anything in the Jeep about stabbing a tire, but testified that Todd said he “might have stabbed someone” at Brad’s house later that night. It’s hard to know what was truly said in this emotionally charged atmosphere, but Brad knew what happened, because he was fighting with Anthony Madril at the time and needed to deflect attention onto someone else. During the investigation, Brad stated that Todd was the one who suggested burning their clothes; during the preliminary hearing Brad stated that perhaps he (Brad) was the one who suggested burning their clothes; at the trial Brad admitted that he was the one who suggested burning their clothes and that Todd had to be talked into burning his shirt (once again, the only item of clothing Todd burned); of course, Brad neglected to mention that he then gave Todd a blood-stained shirt to wear. Also during the investigation, Jason Mellick, testified that Todd stated he stabbed someone in the truck. It is certainly possible that Jason, knowing Todd said he stabbed a tire inferred that he was the only one with a knife and must have stabbed someone. (At the trial, on the witness stand, Jason testified that he went home that night and masturbated! He was the first at Todd’s trial to testify; we were astounded with the prosecution’s leading witness.) Todd was never near Anthony Madril; his only encounter was with Chisum Lopez who admits that he could not get Todd to engage in a fight with him. If Todd were so interested in hurting people, he certainly had the opportunity to engage Chisum, but did not. Detective Ricky Frady appeared to be extremely biased in his testimony at the preliminary hearing and was unwilling to report the facts that he had collected in his interviews. Brad had been given a pass; at this point, the focus was on building a case against Todd.

I understand Brad’s fear of going to prison. It is unlikely he has the fortitude to accept the consequences of his behavior. Someone as entitled as he, growing up in the Broadmoor, having parents who consistently prevented him from suffering consequences, how could he go to prison? Brad’s response to an ex-friend who called him on what he had done was “Todd has ruined my life.” For Brad, it’s all about him. It’s ok for a former friend to be set up for his crime, but for us to talk about why Todd shouldn’t be the one in prison isn’t ok. Brad appears to be incapable of accepting responsibility for his actions, and doesn’t believe he should have to. Not for child pornography, not for rape, not for murder. It is unthinkable to me that any parent, no matter how much they love their child, would not understand the danger in this response. If Todd had stabbed Anthony Madril, I would be devastated and sad beyond belief. But I would also understand that there are consequences for taking someone’s life, and I would accept that he would spend time in prison. I will not accept that my son should spend time in prison for a crime he did not commit.

Tuesday, June 24, 2008

An Observance, not a Celebration

Today is Bill’s and my 41st wedding anniversary. It’s an observance, not a celebration. Just as our 60th birthdays, our 40th anniversary, Joel’s 25th birthday, and holidays. Todd was charged with murder on his beloved sister’s (and our beloved daughter’s) 35th birthday. We mark time by the many nightmares we’ve faced since Brad Orgill decided to fight with Anthony Madril and set Todd up to serve his prison time. Yet, we know that Brad couldn’t have accomplished this without a system that allowed it and where numerous individuals decided that their careers and getting a conviction were more important than justice. Today, I offer the following letter I sent to Judge Martinez following Todd’s sentencing:

June 5, 2006

Honorable Judge Martinez:

You know me as Todd’s mother, but today I am writing to you not only as Todd’s mother, but as a therapist and citizen who is greatly concerned about the out-of-hand dismissals of the serious crimes of which Brad Orgill has been involved.

Prior to beginning Todd’s sentencing, the court reviewed a rape allegation case filed against Brad which was subsequently dropped. Consistent with confidentiality concerns, I do not know the name of the person who reported the most recent sexual assault, and I certainly respect that. However, please remember that this is now the second person who has reported a sexual assault by Brad Orgill. Statistically, more than half of sexual assaults go unreported, so given his history, one might anticipate that there could be other victims. The first assault, in 1998, resulted in Brad losing his position as a Residential Assistant at UCCS. He was not prosecuted in that case because the assault happened in Mexico. However, as you may recall, these records were subpoenaed from UCCS and were provided to our defense attorneys at the hearing to reset the date of sentencing.

Regarding the latest sexual assault allegation in July, 2005, as a therapist, it is unacceptable to me that the police department would place a pretext telephone call to an alleged rape victim. I called the Sex Crimes telephone line and was told that it is not standard practice for the police to make such telephone calls to persons who call to report a rape, for obvious reasons. It leads to the question, of course, as to why an exception was made in this case. What is also troubling, is the information that apparently the person reporting the assault is underage and told police that Brad provided alcohol to her, for which he was also not charged. Once again, someone in the legal system made the decision to not prosecute Brad, presumably for the benefit of his testimony against Todd. The little I know of the case certainly suggests that the person making these allegations is young, (under 21) and has been described as emotionally unstable. She, therefore, may actually be an at-risk person requiring additional protection against sexual predators who could take advantage of her vulnerable state. The sexual activity Brad and this young person engaged in certainly does not reflect an emotionally healthy relationship of mutual respect and caring, but one where the young sexual partner possessed unequal power and status. *

I am also writing to inform you of another investigation involving Brad that either is not in his record or was not released to our defense attorneys. Several months before Anthony Madril’s murder, Brad frantically called our house one Sunday evening to ask for the name of an attorney he might call. It seems that homicide detectives were at his door investigating an internet child pornography purchase on Brad’s credit card. Brad, of course, asserts that it must have been a previous business partner who made this purchase on his credit card.* *It is most disconcerting that nothing appears in his record about this investigation, suggesting that either the information wasn’t provided to the defense, the investigation was not completed, or that somehow this record disappeared. This certainly represents a failure of the system, either by way of incompetence or by way of deliberate cover-up.

Finally, I would like to call your attention to another fact that emerged from Todd’s case. I believe Brad’s behavior demonstrates that he clearly knew what happened to Anthony Madril and decided to set Todd up as the primary suspect from the night of Anthony Madril’s death. As you will recall from Brad’s testimony at trial, Brad is the person who questions Todd about the knife Todd used to stab the tire, even though he denies hearing the statement about stabbing the tire that Todd made in Joel’s jeep. Brad is the one who convinces Todd to burn his shirt when Todd clearly does not want to do it, which Brad burns along with Brad’s own shirt and pants, and then Brad provides Todd with one of Brad’s own shirts to wear. And, it is not just any shirt. Brad gives Todd a shirt that has human blood on the back of the neck and the back of the right sleeve.

This is the only article of clothing the District Attorney choose to provide DNA testing for on any of the clothing worn by Todd, despite the fact that it was clearly not Todd’s own clothing. (We had to send Todd’s clothing out of state for DNA testing at our own expense, and then pay experts to travel from California, to prove it was Todd’s own blood on the clothes he was wearing the night of Anthony’s death.) The DNA from the human blood on Brad’s shirt did not match any of the DNA collected from the persons involved in the events of the evening of November 20, 2004. It certainly leads to questions concerning Brad’s motivation for providing that particular shirt to Todd. Was it just a coincidence, that from all the shirts in his closet, Brad chose this particular shirt, a shirt with human blood on it, to give to Todd, or was this another attempt to set Todd up as the primary suspect? And, what about the shirt? Whose blood might this be? Is there another Brad victim out there somewhere? Why did the sheriff’s department and the District Attorney’s office not pursue an investigation involving the unidentified human blood on the shirt that Brad gave Todd to wear? Incidentally, the shirt had a Good Will tag on it, so Brad might assert that he bought the shirt with stains. Logically, it does not make sense that Good Will would sell a shirt with visible stains, or that someone would buy a shirt with visible stains. It does speak to the fact that Brad always has a way to try to cover his tracks, though. And it certainly seems unusual to have blood on the inside collar on the back of the neck and the back of the right sleeve. In fact, it seems downright creepy.

Brad’s history now includes involvement in two sexual assault allegations, a murder, child pornography purchased on the internet using Brad’s credit card, and some unanswered questions about blood stains on the shirt he gave Todd to wear. Brad’s pattern of behavior includes far too many victims. He exhibits a true antisocial profile, with no history of expressing regret, only of shifting the blame to others. His friends will tell you that he typically chooses very young sexual partners, which together with sexual assault allegations and his interest in child pornography, paints a very troubling picture. So far, he has always been successful at shifting the blame to the victims or to his friends for his antisocial behavior, and the legal system has facilitated his criminal activity through complicity. However, I believe this information should be documented, because if the past is a predictor of the future, one would expect his name to come up in the system again. Unless, of course, he utilizes better methods of cover-up and the system continues in its failure to document and prosecute his criminal activity.

Your Honor, I’m sending this information to you because I suspect you are the only person who doesn’t have an interest in burying this information even deeper, and I do believe that someone in a position of public trust needs to be aware of these issues.


Gloria Newmiller, M.A., LMFT

*Although physical evidence supporting her charge of sodomy was collected at Memorial Hospital, this young lady was charged with "false reporting."

**Todd was still working with Brad at the time. The day after detectives came to investigate Brad for purchasing child pornography on the internet, Brad replaced all of the hard drives on his computers.

Friday, June 20, 2008

When your son has been charged with murder

What do you do first when you learn your son has been charged with murder? First came the humiliation and disbelief as we told our employers. We avoided the television news reports but read the mostly inaccurate newspaper reports which appeared to be news releases from the prosecutor’s office. We went through the motions of working, eating, sleeping; compartmentalizing our lives, trying to keep it together as we continued to tell each other that this will never go to court; Todd is innocent, justice will prevail. After all, Todd was never near Anthony Madril, Brad Orgill was the one who’d fought, and Orgill’s clothes were covered in blood. Orgill’s guilty behavior after the stabbing included proposing that Todd and Mike Melick help him burn his bloody clothing, and then badgering them until they acquiesced. Orgill succeeded in talking Todd into burning his own shirt as well. Todd’s experience with Orgill’s personality was that of consistent overarching paranoia; he didn’t know that Orgill was actually trying to cover his bloody tracks or that Brad’s fight had resulted in death.

Not long after the stabbing we learned that Orgill’s parents bought him a new house because of his fear of going back to the house he’d been living in. Todd’s attorney Phil Tate learned that Amy Mullaney was about to cut a deal with Orgill; Tate met with her and urged her not to, stating “I don’t want you to make a mistake.” Mullaney angrily replied that Phil Tate didn’t need to worry about her. Such arrogance, such lack of concern for such an important decision.

Before any evidence returned from CBI, Mullaney cut a deal with Orgill for a four-year deferred sentence for accessory to murder. Remember, this is the guy who is fighting with the victim when he dies, Anthony identifies his assailant when he is pulled into the truck and says, “I just got stabbed”; Orgill is covered in Anthony’s blood. The prosecutor was threatening Joel with an eight year sentence for accomplice to murder for being the driver but having no other involvement.

Confident that forensic analysis of the evidence would support Todd’s innocence, we awaited the reports from the Colorado Bureau of Investigation. We knew that Todd had used his knife to puncture the tire on Chas Schwartz’s pickup truck as the truck moved forward to pick up Anthony and leave the scene. Todd’s attorney Phil Tate had told us that the forensic evidence all came down to the presence or absence of blood in that puncture; blood in the puncture would show that Todd had stabbed Anthony. The absence of blood would strongly affirm his innocence. Tate cautioned us that any minute amount of blood found on Todd’s knife would be inconclusive because the knife had been handled after the stabbing at Orgill’s residence surrounded by Orgill’s bloody clothing, where small amounts of blood could easily have been transferred to the knife.

When the findings on the evidence were returned, the CBI reported that despite extensive and sensitive testing on the tire puncture, no blood was found. At that time Amy Mullaney removed herself from the case and assigned it to Jeff Lindsey. Lindsey wasn’t involved in making the deal with Brad (and said that he wouldn’t have made such a deal) but he was no more ethical in his handling of the case than was his supervisor.

The prosecutor’s office refused to test the DNA on Todd’s clothing, although it must be noted that there never was evidence of any blood anywhere except on the collar of Todd’s jacket and it was his own blood from the wound to his face inflicted by Lopez just before he jumped into the truck. Todd had to pay for his own DNA testing of his jacket and then had to fly two expert witnesses from California to discuss their findings (at a cost of thousands of dollars). This was required by the prosecutor’s office in order for these findings to be used in Todd’s defense.

What the prosecutor’s office decided to test was a shirt that Todd had not worn on the night Anthony was stabbed. They did DNA testing on a shirt Brad gave Todd to wear the following morning. (photos's of the shirt and a closeup of one of the stains appear here). The startling thing about this shirt is that it had human blood on the inside of the collar and the back of the sleeve--human blood that didn’t belong to anyone involved in this incident. It is especially interesting that Brad chose this particular shirt since Brad and Todd sold clothing on eBay; it would have been much easier for Brad to grab a shirt from inventory than from his own closet. Please hear me clearly: the night of this incident, Brad is covered in Anthony Madril’s blood, Brad burns his own shirt and pants and talks Todd into burning his shirt, and then replaces Todd’s shirt with one of his own blood-stained shirts. The shirt was an ugly plaid shirt and the blood wasn’t easily visible.

Sunday, June 15, 2008

The Nightmare Continues

Our nightmare continued when we learned that the sheriff’s department wanted to talk with Joel and might charge him as an accomplice to murder because he was driving. Joel talked to his attorney, Billie Trujillo (recommended by Todd’s attorney, Phil Tate), who advised Joel that the others in the truck have already talked to the sheriff’s department and that Joel needs to make a deal with the prosecutor.

Bill advised Joel to talk to his attorney and tell the truth; Joel has stated that Todd said in the jeep that he’d punctured the tire on the truck. Trujillo, who was supposed to be representing our son, sent Joel out of the room while he made telephone calls to the prosecutor and led Joel in the process of guessing what it was the prosecutors wanted to hear in order not to be charged with being an accomplice to murder.

When Joel finally guessed close enough, they offered him a deal. Joel knew that Todd had stated that he’d stabbed a tire, but he had to add a level of ambiguity; Joel said “they want me to say that Todd said ‘I stabbed one of them’”(meaning tire). Trujillo nods and the deal is made. Later, Trujillo arranged for Joel to meet with the investigator, Jeff Nohr, and the original prosecutors in the case, Amy Mullaney and Stephanie Rikeman; Trujillo himself didn't show up for this meeting. When Joel called Trujillo, he's unavailable, and Trujillo’s receptionist says he must have forgotten about the meeting. However, when Joel does reach him before the meeting begins, Trujillo advised Joel to go ahead with the meeting without him.

Joel is a 21-year-old young man, representing himself in front of the prosecutors and investigator, despite the fact that he is paying to be represented by counsel! Joel’s father Bill was outraged and called Trujillo to express his outrage at this abandonment. Trujillo told Bill it was none of his business, that Joel was his client.

During this meeting, Joel told Nohr, Mullany and Rikeman, that Todd was nowhere near the victim and that according to the discovery, they have found no blood on Todd’s knife. Mullany says, “Not yet, but we will.” (She made good on her promise; the knife was “missing” in the evidence room for two months; when it resurfaced and was delivered to CBI, the black debris, previously documented as being present, was gone and a microscopic amount of blood, previously documented as absent, was found on the knife.) The prosecutors then argued that Todd cleaned his knife – unbelievable since the knife was clearly not cleaned by nature of the fact that it was identified as having black debris on it by the detective who examined it!).

Throughout the time Trujillo was paid to represent Joel, he spent his time with Joel proselytizing rather than providing adequate legal counsel. Notably, Trujillo was promoted to magistrate shortly after this event and before Todd went to trial. We did hire a competent attorney to represent Joel prior to Todd’s trial.

Sunday, June 08, 2008

A Mother's Nightmare Through the Legal System

I am Todd Newmiller's Mother.

In a recent visit with Todd, after the appellate court’s decision to confirm his conviction, Todd shared the feeling that no one in America really cares about the wrongly convicted because they don’t believe it applies to their lives and that it couldn’t happen to them. Our family is a good example why every American should care about the wrongly convicted.

Our family is hard working and committed to the Constitution of the United States and in caring for our world and its people. Bill, as noted on the opening page, is a retired Air Force officer and English professor at the United States Air Force Academy. I am a licensed marriage and family therapist, working with children diagnosed with reactive attachment disorder and their families. Our daughter is an Internal Medicine physician, our son-in-law has a degree in Russian and Political Science, Todd has a degree in Communications and our youngest son, Joel, has a degree in Chemistry. Our eight year old granddaughter has her own blog site focusing on saving the earth. We live in a modest home in the Briargate area of Colorado Springs. Neither Bill nor I grew up privileged but we have always placed a high premium on education and leaving the world a better place. We are not so different from many middle-class Americans who work for a living.

Yet, as our website demonstrates, we are fighting in what currently feels like a losing battle to free our son from a wrongful conviction. We continue to be stunned by our experience with the legal system.

As a mother, I can’t begin to tell you what it is like to have sheriff deputies arrive at your door asking for your youngest son, telling you he was involved in a “tiff” the previous night; nothing serious. By the end of the hour you realize the police have lied to you. It was no tiff, there has been a stabbing and both of your sons were there. Further, the Captain calls and tells you they want to interview your sons as witnesses; he tells me that Brad Orgill, our son’s business partner, stabbed someone the previous night. This is the most serious and devastating news we have ever received and we knew that no one in such a situation should proceed without legal counsel. However, by the time Bill and I met then-Captain Shannon in person he threatened that our sons will be suspects instead of witnesses if they use their Constitutional rights to counsel before talking with the sheriff. He later made good on his threat. We are surprised when Shannon tells us that Brad Orgill had already been released. We called the only attorney we knew; he agrees to represent Todd and offers us assistance in finding an attorney for Joel. Thus began our journey through this legal nightmare.

By the end of the night, both of our sons are free and safe. They are stunned to learn that the previous night someone has died from a stab wound. As they process the events with us, both of our sons state they do not know what happened, but that Brad Orgill was in a fight the previous night and was covered in blood; on his face, on his clothing, on his shoes. I am shaken to the core to learn that our sons were present during a fight and a young man in the prime of his life has died.

Two days later, we drive our son, Todd, to the sheriff’s department where he is officially charged with second degree murder. Ricky Frady, the person ultimately leading the pack to charge Todd, loudly pronounces to Todd in our presence as he handcuffs him, that he is being charged with the murder of Anthony Madril. I sob as they lead Todd to the CJC to book him; Bill and I spend the entire night at CJC as we wait to post bond for Todd and bring him home with us. Trying to process all of this in the lobby of the CJC in the middle of the night was nothing short of surreal; listening to a bail bondswoman talk about her favorite books, the “Left Behind” series added to the surreal feeling that you have spent the night in hell.

But the nightmare was just beginning.

Monday, May 26, 2008

The Fight Goes On

Today's Gazette reports the Appellate Court's rejection of Todd's appeal. It is a tragic decision that fertilizes injustice.

Gazette reporter Dennis Huspeni rightly reports our faith in Todd's innocence and our commitment to continue to fight for his exoneration. When he reports that Todd and Anthony Madril argued over a stripper, he is inaccurate. The record clearly shows that the perpetrator of that argument was Brad Orgill, the only person who was seen later fighting with Madril.

Huspeni also quotes Jeff Lindsey, the lead prosecutor on the case, who says, "This is an affirmation of the jury's decision." Lindsey is not burdened by one of those juror's recorded comments indicating that he didn't know if Todd had actually committed the crime.

One of the frustrating things about the appeal process is that it offers far less than a full consideration and review of all that can go wrong in a criminal investigation and trial. We've discussed on these pages how the juror's shocking admission is inadmissible.

We also remain highly critical of the way the District Attorney's Office investigated this case. Assistant District Attorney Amy Mullaney has yet to answer for her decision to cut a deal with Brad Orgill--the only person seen fighting with Anthony Madril--before the evidence in the case had even been sent to the state crime lab for analysis, and almost a year before the Metro Crime Lab determined that Orgill could not be ruled out as the assailant. The DA's office has also failed to explain the preferential treatment Orgill received just a few months after his deal with Mullaney, when Orgill was accused of rape. That accusation was cleared in a highly unusual collaboration between CSPD, Orgill, and Orgill's attorney that included a pretext phone call to Orgill's accuser to get her to drop the charges. Although Orgill's accuser was only 19, and Orgill admitted giving her alcohol (a clear violation of his plea agreement), the DA's office apparently never considered reviewing his non-compliance with the agreement. The effect of Orgill's preferential treatment was to preserve the credibility of a key prosecution witness.

Huspeni reports telescopically about Todd's knife, saying only that it had the victim's blood on it and a black spot that disappeared. There's more to it than that.

When the police first examined the knife, they found no blood on it. They found no blood in Todd's pockets where he had carried the knife.They did find black debris on it. More than a spot, it was described by the detective who examined the knife as "some kind of substance sort of shellacked on the blade.... It was in higher concentration along the serrated edge and most dense near the hilt of the knife." That suggested the knife's use to puncture a tire some 30 feet away from the area where the victim and Brad Orgill were engaged in a violent and bloody fight.

The knife was not shipped to the state crime with the other physical evidence. Some six months after the stabbing the state crime lab called the El Paso Sheriff asking where the knife was. It had been hiding out in their evidence room. So Officer Jeff Nohr drove it down to the state lab in Pueblo. At this point we'd been dogging the authorities for six months to test the debris on the knife because of its apparent exculpatory value.Unfortunately, by the time the knife arrived at the lab, the black debris was gone. We were never told of the missing debris, until in desperation, we obtained a court order 13 months after Todd's arrest, for the state to produce the knife for independent testing. Only when it reached the independent forensic lab did we learn that the debris was gone.

The authorities saw no blood on the knife until it showed up at the state crime lab. The amount was infinitesimal--so little that consumptive testing had to be approved. That is, it could only be analyzed by consuming the entire amount. This little amount of blood was located on the handle and away from the cutting edge of the folding knife. None of the victim's blood was in serrations on the knife or within the channel of the knife or the mechanism of the knife.

Particularly galling to us is that at trial Prosecutor Jeff Lindsey argued that Todd had cleaned the knife, after it was clear that any cleaning must have been done by the state, since it was while the knife was in the state's possession that the debris on the knife was removed.

We would like to know how the condition of the knife alleged to be the murder weapon became altered while it was in the possession of the El Paso County Sheriff's Department, and why this piece of evidence became separated from other evidence in the case and was "missing" in the evidence room for two months. Incidentally, at the time the Metro Lab did its analysis, they did not know about the problem with the knife evidence. They also didn't know that Orgill at trial would admit that on another occasion he had carried multiple knives and voiced an intent to use them should he find himself in a bar fight.

Finally, we insist that the state should not be permitted to gain a conviction by using evidence that has been altered while in the state's possession.

Wednesday, May 07, 2008

John Newsome, Amy Mullaney, Poor Judgement, and Moral Decay

KOAA investigative reporter James Jarman's videotapes of District Attorney John Newsome and his deputy Amy Mullaney consuming the equivalent of a twelve-pack and a six-pack respectively during a time with interspersed office responsibilities made the headlines in the Colorado Springs Gazette this week. Then, they drove home, he in a government car.

Poor judgement? For sure. But it's just the tip of the iceberg. Thankfully, Newsome and Mullaney hold their liquor well enough that there have been no accidents (reported). But what about poor judgement on the job?

What about Newsome's elevation of Mullaney to deputy over others with more experience? Was it a decision based upon merit and accomplishment, or based upon drinking comraderie?

Has poor judgement on the job set the guilty free? Imprisoned the innocent?

Early in the morning of November 20, 2004, Anthony Madril shouted to his friends, "It's on! Let's go!" He entered into a fierce fight with Brad Orgill. Witnesses saw no one else near the fighting twosome. Madril emerged from it bleeding profusely--a single puncture to the heart, both ventricles breached. As his friend pulled him into the truck, Madril said, "I just got stabbed." Orgill's clothing was covered with blood, but before the state crime lab even tested it, Amy Mullaney cut Orgill a deal: deferred sentence. No jail time. Just testify against Todd Newmiller. No one had seen Todd near Madril. Madril's blood appeared no where on Todd's clothing.

So, Todd waits for the Court of Appeals to correct the excesses of bad judgment that led to his wrongful conviction. Orgill walks the streets, accused of rape since his deal. Details here.

Monday, April 14, 2008

Oral Arguments

Oral arguments in Todd's case were heard on April 10th in a special session of the Colorado Court of Appeals held at Denver University's Sturm College of Law.

Streaming video is available online, thanks to Sturm College.

After the hearing ended, the attorney's took questions from the law students in attendance. Most questions dealt with the nature of work done by appellate attorneys, one question was about the case.

The question we'd like answered is why did the DA cut a deal with Brad Orgill before all the evidence had even been sent to the crime lab--and almost a year before the Metro Crime Lab reported that Orgill could not be ruled out as the assailant.

We've tried to approach that question in the series of blog entries here titled "How an innocent person is convicted." It seems, though, that this is a question the prosecution needs to answer--we can only speculate.

Friday, April 11, 2008

Exculpatory Evidence

For Todd's family and friends, the hearing of oral arguments was a stressful occasion. Our attorney had but 15 minutes to address the court. Most of that time was taken up with questions from the three-judge panel.

The questions centered upon an evidence issue: the loss of deposits on what prosecutors alleged to be the knife used to kill Anthony Madrill.

Previous posts (Altered Evidence and Altered Evidence: How the State Explains the alteration of evidence in its possession) have touched on this evidence issue.

Intuition tells most of us that relying upon evidence that has been altered is a bad idea--especially when the claims derived from the altered evidence are at odds with all other physical evidence.

Legal consideration of this point, however, is more complex.

The alteration of the knife in this case involved the loss of a deposit on the knife widely accepted to have been tire debris.

To determine if that loss unfairly prejudiced Todd's defense, the court uses a three-part test:

  1. Was the state responsible for the loss?

  2. Did the lost or destroyed evidence have an exculpatory value that was apparent at the time of its loss?

  3. Is comparable evidence unavailable to the defendant?

Questions from the judges at the oral argument focused on the second part of that test: did the material have an exculpatory value that was apparent at the time of its loss?

The judgment of the police regarding the knife's exculpatory value can be seen by examining their statements and actions in light of the context they understood at the time the evidence was received by them.

Getting to the context is simplified because it was very early in the investigation—their data-field was pretty limited. A look at the early timeline reveals a context where the deposit on the knife was especially significant.

The knife was retrieved from Todd on the afternoon of November 20, 2004. The investigating officers' question at that time had to be if the knife was the murder weapon. Earlier that morning Det Frady had interviewed Charles Schwartz, an interview that clearly points to Brad Orgill as the person who fought with Anthony Madril. Schwartz tells them:

  • The only people physically fighting are Madril and the person later identified to be Orgill. The person later identified as Todd is not seen around Madril. Schwartz explains that Todd was on the passenger side of the vehicle while Madril and Orgill were on the other side and about 20 feet up the road.

  • The fight between Orgill and Madril looked pretty even to Schwartz. Todd is the person who punctured the right-rear tire on his truck; Orgill is the person Anthony is enthusiastically fighting in front of and to the left of his truck.

  • He (Schwartz) agrees with Frady’s hypothesis that “there were two knives”—one used to puncture the tire, the other used to stab Madril.

Frady conducted a second interview with Schwartz on the morning of 22 November. It’s clear from the 22 November interview with Schwartz that Frady is testing the two-knife hypothesis when he asks Schwartz repeatedly and in detail to go over the sequencing of the fight between Orgill and Madril and the timing of the puncturing of the tire.

  • Schwartz confirms what he’d reported in his first interview.

  • Schwartz explains very clearly and under detailed questioning that Madril fought hard with Orgill at the same time that the tire was punctured.

Frady’s 22 November interview with Schwartz occurred at 1030 a.m. An hour and half later, Det Vanderpool goes to the evidence room and inspects the pockets of the leather jacket Todd had worn. Specifically, he is looking for anything that “appeared to be blood.” The reason for this inspection is clear: blood stains in the pocket, where the knife had been stored, would connect the knife to the stabbing. However, the pockets did not have any blood stains.

Against this background Richer and Nohr discussed the best way of preserving the black deposit on the knife.

What we see within the context of these actions by the police is an attempt either to rule the knife in or to rule it out as the murder weapon. The investigation of transfer between objects at a crime scene is an important part of every detective’s training. All investigative officers (and even lay observers in this case) would recognize the importance of the deposits on what is purported to be the murder weapon. Anyone would recognize that in considering the “two-knife” hypothesis, where one knife is used to stab a person and another used to puncture a tire, that investigation of deposits of blood and “black debris” would be central to determining how a particular knife had been used. Clearly, deposits of blood would have been inculpatory while deposits of tire material would have been exculpatory.

Actually, any deposits would be exculpatory because they would indicate that the knife had not been scrubbed by Todd—guilty behavior that the prosecutor and state’s witnesses suggested at least three times during the trial.

Monday, April 07, 2008

How an Innocent Person is Convicted, Part 13: A jury that doesn't understand presumption of innocence or reasonable doubt

Despite the prosecution's use of altered evidence, and their attempts to confuse the jury, we approached the verdict with confidence. How could they find Todd guilty when no one ever saw him near the victim, when everyone saw Brad Orgill fighting fiercely with the victim? How could they believe that the only person seen fighting the victim, who was covered in the victim's blood, was not the more likely assailant? How could they believe that a person could be stabbed in the heart and then just fly off to fight with someone else, shouting, "It's on! Let's go!"? How could they believe that an assailant would walk up to someone, stab him in the heart, and then refuse to take a swing at a second person who was egging him to fight? How could they think that an assailant who'd stabbed someone in the heart would have none of that person's blood on his clothing, not even in pockets that held the alleged murder weapon?

We were stunned when the guilty verdict came.

The pain we still feel over the jury's decision to convict grew to include unbounded frustration when we learned of an interview with one of the jurors.

On the eve of Todd's sentencing Brian Arnot interviewed one of the jurors:

Q: Do you think beyond a reasonable doubt that he did do it?
Juror: I don't know....
You can hear the context of that admission by clicking here.

We've played that audio recording for a number of people. Their response is always a sarcastic "so that's a jury of one's peers."

Unfortunately, the audio file you can listen to on the Internet is out of bounds for the judges. Such comments are inadmissible under Colorado's rules of evidence. Ironic, isn't it, that the trial court in Todd's case had no difficulty accepting into evidence a purported murder weapon, the condition of which had been altered while it was in police custody, but clear evidence that the jury did not understand its responsibilities is inadmissible.

The absence of a cure for juror incompetence should suggest to us all that juror education needs to become a higher priority.

Sunday, April 06, 2008

How an Innocent Person is Convicted, Part 12: Detective Jeff Nohr "clarifies"

The lead investigator was El Paso County Sheriff's Detective Jeff Nohr. He sat with the prosecutors and if a prosecution witness said something inconvenient for the prosecutions, Nohr would take the stand and "clarify." Here we document but one of his "clarifications."

Detective David Yarbrough searched the crime scene with his K-9, Ivor. Of course, one of the main things he was searching for would have been any kind of weapon, especially a knife. When asked to define the area of his search, he said that it was between the crime scene tapes that had been set up. Police photos show that these tapes were set up across Conrad Road. Here's a police photo showing the northern boundary of the crime scene (click on the photo to see hi-res original):

And here's a photo of the southern boundary (You have to look closely to see the yellow tape tied to the stop sign):

It's important to note that the tape only defines the northern and southern boundaries of the scene. No tape was set up alongside the road.

Det Yarbrough, when asked how far off the pavement he searched, replied "Would have been about 15 feet on either side of the pavement 'cause I had him on a 15-foot lead."

The answer seems to be honest and based upon fact, especially because he tells us how he recalls the distance.Of course, 15 feet is far short of the distance most could throw a weapon such as a knife.

On redirect, Yarbrough maintained his description of the search area:

Prosecutor Stephanie Rikeman Q. You did search off either side of the curb on Conrad Street?
A. Yes, I did.
Q. About how far?
A. Within the banner tape.

Clearly, Yarbrough was quite sure of the area he searched, but the implication that the search had not been as thorough as it should have been brought Jeff Nohr to the stand later that afternoon. You be the judge if his testimony is "clarification" or damage control.

Nohr testified, "So I asked Deputy Yarbrough to utilize his dog all through this area as well and then on the west side of the road through these larger trees, again, with all the mulch. And then Deputy Yarbrough went down to the east of the intersection with his dog to the Appaloosa Gentlemen's Club searching both sides of the road in that area. And it was described Deputy Yarbrough basically was to search within a certain area, within arm's throw of how far somebody could throw something."

Notice how carefully Nohr words his testimony. I'm sure he'd maintain that he was just "clearing up" any questions about the area Yarbrough was told to search. Though, Nohr does seem to slip in his second sentence, when he maintains that Yarbrough actually searched all the way "to the Appaloosa Gentlemen's Club," which is about a quarter mile beyond the confines of the police tape. How confusing might this testimony be to jurors? Does it seem like a trick to get the jury to think that the search for another weapon was more thorough than it actually was?

So it seems.

Friday, April 04, 2008

How an Innocent Person is Convicted, Part 11: Wait a year to perform a crime scene analysis; do it without all the evidence; then ignore its findings

As soon as Todd was charged, we pushed the police and prosecution to investigate the stabbing of Anthony Madril thoroughly. We accepted many delays to accommodate the state's slowness in processing forensic evidence.

We especially wanted the state to examine the blood stain on Todd's jacket, which we knew would be his, not the victim's. And we wanted the state to examine the black debris Detective Richer had seen on Todd's knife. We knew that it had to be from the puncturing of the right tire of Schwartz's truck, and that placing Todd at the right-rear of Charles Schwartz's truck while Brad Orgill and Anthony Madril fought fiercely to the front and left of the truck was important to understanding clearly what happened that terrible night.

But the state declined to perform DNA testing of Todd's clothing. Instead, they decided to test a blood-stained shirt that Orgill had given Todd to wear the day after the stabbing. (The DNA analysis of that shirt conclusively determined that the blood on it belonged to an unknown person.) The state never tested debris on the knife either.

So, after 14 months had passed, we obtained a court order to have the knife and Todd's jacket sent to an independent lab for testing. That lab confirmed that only Todd's blood appeared on his jacket. The shock for us, though, was learning at that time that the debris reported to have been on the knife when it was first examined by the police was now gone. We then learned that the debris was actually known to be missing seven months earlier while in the state's possession.

It was during this time--when the independent lab was doing this testing--that the Colorado Springs Metro Forensics Lab finally performed the only state-sponsored "crime-scene analysis."

Of course it was too late for them to analyze the debris that had once been on the knife.

When Kimberly Bjorndahl, one of the report's authors, testified, she repeatedly claimed that the victim had but one wound, the fatal stab to his heart, but the autopsy clearly shows that the victim also suffered incised cuts (defensive wounds) to his hand and a cut across the bridge of his nose. The failure to note these basic injuries, of course, raises questions about the adequacy of the resulting analysis, and, in particular, how much attention was paid to the autopsy.

Nevertheless, the report states in its closing paragraph that Brad Orgill cannot be eliminated as Anthony's assailant.

The report reasons, though, that Orgill is less likely to be the assailant because there is no evidence that he'd carried a knife. However, at trial Orgill admitted to carrying three knives in the past, and on one occasion being ready to use a knife should a fight erupt in a bar he frequented.

None of the three knives Orgill admitted carrying were recovered by police when they searched his house.

Saturday, March 29, 2008

How an Innocent Person is Convicted, Part 10: Preserve the credibility of prosecution witnesses at all costs

Astonishingly, the star witness for the prosecution was Brad Orgill--the only person ever seen fighting with Anthony Madril. Madril entered the fight with Orgill enthusiastically, shouting "It's on! Let's go!" An amazing amount of enthusiasm for someone who, according to the prosecution, had been stabbed through both ventricles of his heart.

Further, Madril emerged from the fight with Orgill bleeding from his chest wound and in his dying breath told his friend Chas Schwartz he'd "just been stabbed."

It was Brad Orgill who testified for the prosecution against Todd. Brad Orgil who'd received a deferred sentence (read "no prison time") in return for that testimony. And Brad Orgil who'd been accused of rape just a few months after receiving the deferred sentence.

The rape accusation threatened to damage Orgill's credibility, but the defense attorney's were not provided with any documentation of the accusation until after Todd's trial.

The accusation was resolved with a highly unusual collaboration between the investigating officer, Colorado Springs Police Detective David Krueger, Brad Orgill, and Orgill's attorney Bill Shoewe. As they gathered to carry out this mission, they discussed Shoewe's trip to Sturgis, South Dakota, and then made a pretext phone call to Orgill's accuser and got her to drop the charges against Orgill.

After Todd's conviction, we petitioned for any records regarding the rape accusation against Orgill. The prosecuting attorney in Todd's case denied any knowledge of this event (or of a previous sexual assault accusation that had cost Orgill his job at the University of Colorado Springs a few years earlier). The profession of ignorance by the DA's office is not consistent with the existence of documentation that committed the DA's office to pay for the rape examination at Memorial Hospital as well as the existence of a release form signed by the accuser authorizing release of the examination to the DA's office.

Orgill claims that the sexual encounter with the victim was consensual, though he admits to providing the nineteen-year-old woman with alcohol--a clear violation of his deferred-sentence agreement. The threat of losing his deferred sentence and facing prison time (likely 18 to 24 months) hung over his head when he testified for the prosecution at Todd's trial.

The record below suggests how the prosecution was able to preserve Orgill's credibility after being accused of rape, by placing a pretext phone call to the accuser on August 18, 2005. Then by delaying any further action, they were able to keep pressure on their witness and preserve his testimony without having to release information about his rape accusation. Finally, after the conviction, when the defense raised concerns about Orgill's credibilty, the DA's office proceded with charges against Orgill's accuser. The nineteen-year-old woman whom Orgill had given alcohol and who'd accused Orgill of rape then became a perpetrator in the eyes of the District Attorney's Office.

7/19/2005 -- The rape accusation.

8/18/2005 -- A pretext phone call to the accuser, charges dropped.

3/16/2006 -- Todd is convicted at trial. Over the coming weeks his attorney's try to locate any record of the rape accusation. Their requests are ignored until they file a formal motion for the information.

4/25/2006--The young woman who'd accused Orgill of rape is arrested for false reporting of a crime.

5/08/2006--Summons and complaint against the young woman is filed. Arraignment is scheduled for 6/6/2006.

5-17-2006--Judge Gilbert Martinez signs a court order demanding the DA's Office provide any discovery documents related to an investigation of Orgill regarding sexual assault.

5-19-2006--The DA provides Todd's attorney with the discovery documents.

5-24-2006--Just prior to Todd's sentencing hearing Prosecutor Jeff Lindsey says, "we were never notified of this investigation. And I think the dates of the investigation are important for the record and for the Court to consider. The investigation began on July 19th, 2005 and was disposed or no filed by the police department [in] September of 2005. Well, Judge, that was the end of that case as far as the police department's concerned. The ticket for Ms. Alleged Victim was placed in the police department file. I have been told that she's been served, not by Detective Krueger but by another officer when she was picked up."

The timing of the DA's actions against Orgill's accuser is especially convenient: It kept pressure on Orgill until after the trial. Then when questions could be raised about the propriety of relying upon an alleged rapist, the DA demonized Orgill's accuser (the nineteen-year-old given alcohol and sex) and turned her into a perpetrator.

Todd's defense attorney summed it up by saying:

There's no information that Mr. Orgill knew [his accuser] was charged or was going to be charged. But the fact is that this man had this hanging over his head when he testified and this was information that he had; certainly would be more cooperative with prosecution and the police; certainly wanting to put himself in a better light; certainly wanting to say things to make him the best witness he possibly can be for the prosecution, going to his bias, interest, motive to lie to protect himself, not only from being charged with sexual assault or contributing to the delinquency of a
minor, because in the statements there's statements that he's providing alcohol to a minor and having sex with her, but also what it would do to the deferred sentence.

Thursday, March 27, 2008

How an Innocent Person is Convicted, Part 9: Only look at some evidence

Once the District Attorney's office decided to pursue a conviction against Todd, all interest in pursuing truth seemed to evaporate.

The real-life world of crime analysis is not like CSI. In real-life, the prosecutor directs the forensic analysis, asks for specific tests on specific items that may support the prosecution's case. Tests that the prosecution fears might undermine its case can be avoided.

For example, in Todd's case the prosecutor (Jeff Lindsey at this time) declined DNA testing the clothing Todd had worn during the confrontation on Conrad Street. Eventually, we obtained a court order to have this clothing tested at our expense. Those tests confirmed what we'd known all along regarding the blood stain on Todd's leather jacket: it was Todd's blood. None of the victim's DNA has ever been found on any of Todd's clothing.

Although Lindsey declined to test the clothing Todd had worn that night, he did order the testing of a shirt that Todd had worn the day after--a shirt that had been given to him by Brad Orgill.

Brad's choice of shirts to lend to Todd is curious. Although he had many shirts to choose from (he ran an online clothing sales business from his house), he chose to give Todd a plaid shirt with human blood stains on it.

Lindsey had the blood stains from that shirt tested, but the blood did not match anyone who was present at the stabbing.

Why had Orgill lent a shirt with blood on it to Todd? Why had Lindsey declined to test the jacket Todd had worn that night? Was it so he could simply claim that Todd had blood on his clothing--never mind whose? Patricia Van Horn in the brief she submitted on behalf of the state in Todd's appeal refers to the blood on Todd's clothing in an attempt to imply that he had contact with the bleeding victim. Of course, she fails to mention that none of the blood on Todd's clothing came from the victim, or even that the state declined to perform testing that was surely called for.

Apparently if the search for truth might get in the way of a conviction, the search is abandoned.

How an Innocent Person is Convicted, Part 8: Conclusions before research

A long time college professor, I've always been frustrated by a few students who seem to feel that they've already got it figured out. You've probably suffered through their presence in classes you've taken. Often, they're ideologues (from anywhere on the political spectrum). Theirs is a cockiness that can only come from uninformed opining.

They are the students who turn in a first draft containing nothing but their unsupported opinions and then go to work seeking in the library (or more likely online today) whatever factoids might support their preconceptions. They give scant or no attention to anything that might challenge their beliefs.

Such is the kind of thinking and approach the authorities seem to have taken in investigating and prosecuting Todd.

For us, the process was quite different. I'll never forget the night Todd was charged with murder. I called my boss, an Air Force Colonel, and told her that "in my heart I can't believe he did it." I'd have to see the evidence, though, before I could know with my head.

The intellectual knowing came a couple weeks later, when the police released the first volume of discovery in the case. Only then did we learn that the victim had been fighting with Brad Orgill, not with Todd. Only then did we learn that no one had seen Todd near the victim.

Surely, we thought at the time, the police and prosecutors will look at the evidence that's been gathered, will analyze it logically, will reconsider the rushed decision made to indict Todd.

But they didn't.

Todd's attorney met with prosecutor Amy Mullaney and lead investigator Jeff Nohr, and he went over the eyewitness statements, including those which are archived on this web site, statements that pointed away from Todd as the perpetrator. But Mullaney had begun to think like one of those students whose mind has been made up, who's not going to let the facts get in the way.

She responded adversarially.

A short time later, still months before the forensic analysis would be complete, Mullaney offered Orgill a deferred sentence in exchange for testimony against Todd. That decision, not the facts of the case, eliminated Orgill from consideration as the assailant, and it left Todd as the sole focus of the ensuing investigation.

Tuesday, March 25, 2008

How an Innocent Person is Convicted, Part 7: From Witness to Suspect

Brad Shannon's initial claim that "Brad Orgill had stabbed and killed someone" was consistent with the early actions of the police. When Todd and Brad were apprehended, it was Brad who received their closest attention.

So, what made the police come to consider Todd as a suspect?

It's a tough question to answer, because much of what goes on in a police investigation is hidden from view.

But we do know the police were frustrated by our insistence on legal counsel. We also know that after speaking with us, the police interviewed Mike Lee, who was one of the witnesses.

Lee knew few details. He's seen Todd confronting one person, Orgill fighting with another. He knew that someone had been stabbed but not whom . And he knew that Todd had carried a knife that had been used to puncture a tire. Lee would become a witness for the state.

Jason Melick, another witness learned someone had died by watching the TV news. Melick was a big drinker that night, starting off with 12 beers before moving on to the hard stuff. His memories were dramatic and inconsistent with everyone else's. At two a.m.--24 hours after the stabbing--he called anonymously to the crimestoppers' phone number and left a five word message: "the killer's name is Todd."

On the Monday after the stabbing, Brad Orgill showed up at the Sheriff's Office with his lawyer. Orgill, who had been the only person seen fighting with the victim, now pointed the finger at Todd.

The day following Orgill's interview, Prosecutor Amy Mullaney rushed to charge Todd. The forensic analysis of the physical evidence had hardly begun, and little attention had been given to the eyewitness reports of the victim's friends, but the indictment was made. As the analysis of witness statements and physical evidence dribbled in supporting Todd's innocence, Mullaney would resist any reconsideration of her rush to indict.

A key piece of physical evidence, the tire punctured with Todd's knife, received its analysis over two months after Mullaney cut her deal with Brad. By timeline produced by both the prosecution and defense, the puncturing of the tire had to have occurred after the stabbing of the victim. Had the same knife been used for both the stabbing and puncturing, then blood would have been transferred to the tire. But it wasn't. Despite extremely sensitive tests for the presence of blood on the tire, none was found. Shortly after receiving this news, Mullaney handed the case over to a younger prosecutor, Jeff Lindsey.

Counting the innocent

Adam Liptak, writing in today's NY Times, thoughtfully discusses the question of how many are wrongfully convicted.

Supreme Court Justice Antonin Scalia using last years' argument by Morris Hoffman (discussed earlier on this blog) defends the reliability of the judicial system, but the hard math and research by Samuel R. Gross, a law professor at the University of Michigan, are both convincing and troubling. Liptak writes:

Professor Gross concluded that the false conviction rate for death row inmates has ranged from 2.3 percent to 5 percent. Were even the lower end of that range applied to people who received prison sentences of a year or more in the last three decades, he wrote, it would suggest that about 185,000 innocent people have served hard time.

Liptak goes on to point out that

Justice Scalia, for his part, focused on what he saw as good news. “Reversal of an erroneous conviction,” he wrote, “demonstrates not the failure of the system but its success.”

For Todd's sake, and for the sake of Justice, we hope that the system will "demonstrate its success" when it reverses his erroneous conviction.

Thursday, March 20, 2008

How an Innocent Person is Convicted, Part 6: We learn a little more

Todd told us that after he exited the Jeep, he'd gone directly to confront a person standing just outside the passenger's door of the pickup, which we'd later learn belonged to Chas Schwartz. We'd also learn later that the person he confronted there was Chisum Lopez.

Lopez would testify at the trial that he was confronted by Todd about "a half a second" after getting out of Schwartz's pickup. Lopez would also say that he wanted to fight Todd, but that try as he would, Todd wasn't willing to take a swing.

Although Lopez never admitted to taking a swing at Todd, Todd told us that Lopez did hit him in the face, just before jumping back into Schwartz's pickup and locking the door. Todd, angered by the punch, took out the knife, which he had used earlier in the day to open boxes of merchandise he'd received--clothing that he retailed online through an ebay business he and Brad Orgill ran. In retaliation, Todd used the knife to puncture the right rear tire of Schwartz's truck.

At the time Todd us this, none of us knew who had been killed. Not until the release of the police reports a couple weeks later would we learn that it was the person Brad had fought so violently who had died.

Wednesday, March 19, 2008

How an Innocent Person is Convicted, Part 5: We learn a little

Joel was the first son to speak with us about what he witnessed. He'd parked his Jeep behind Chas Schwartz's pickup truck, which was stopped on Conrad Street, a dark empty street a couple blocks from the club parking lot where the two groups of young men had joined in a verbal confrontation.

Joel watched as Brad Orgil fought with his opponent on the driver's side of Schwartz's pickup and as Todd faced off with a second person on the passenger side of the pickup. The whole confrontation ended quickly, "within a minute or so," Joel said. Surveillance camera video that is a part of the police record indicates that the total time could not have exceeded 75 seconds.

Afterwards, all parties returned to their respective vehicles and drove off. Todd had a couple of superficial nicks on his cheek, which caused blood to stream onto his neck and shoulder. Joel was upset and angry that his brother had been hurt and wished to pursue Schwartz's pickup, but Todd did not. Joel thought that Todd was trying to calm him down when Todd told him that he'd stabbed one of the tires.

We'd have to wait until Todd spoke to find out why he'd stabbed the tire.

We'd wait even longer to find out that the person Todd had confronted was uninjured, and, in fact, untouched.

Weeks would pass before we'd learn that the person Brad Orgill fought on the driver's side of the Chas Schwartz's pickup was the one who'd been killed.