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.

Monday, March 17, 2008

How an Innocent Person is Convicted, Part 4: The Rule of Silence

The business of defense attorneys is mostly one of cutting deals. Nationally, about 85% of cases are plea-bargained. Of those that go to trial, contention often depends upon issues of mitigation rather than innocence. Defense attorneys will tell you that the scariest case for them is the one where they are defending an actually-innocent person. To lose such a case is to lose everything. Yet, their sharpest skills--the ones they use daily--are those for negotiating, not those needed for winning.

Defense attorneys are worriers. Theirs is the job of wondering the "what-if's." What if the client does something unrelated but stupid while the case is under review, what if some crackpot or old enemy shows up with an incriminating comment? What do the police know that that defense doesn't know?

Defense attorneys advise clients to play it safe. Keep mum, avoid the press, don't talk to anyone about the case. Todd's attorney told us not to talk to him about what happened that night. "There's no parent confidentiality privilege," he said.

But how could we not talk?

Sunday, March 16, 2008

How an Innocent Person is Convicted, Part 3: From Witness to Suspect

Officer Brad Shannon wanted Gloria and me to to tell our sons to speak with detectives without an attorney present. He told us they were just witnesses, that Todd had just been in a stare-down with another young man, that there was some trash talk, but Todd hadn't done anything. But he needed our encouragement to tell the police what he knew.

Our heads were spinning. Less than an hour earlier, another detective had told us that there'd simply been a minor tiff. But now we knew that someone had died. Why had the police lied? We were way out of depth and needed help. We knew we needed to retain an attorney.

Our decision was firm: we'd not advise Todd or Joel to speak without cousel, which we'd retain immediately.

Shannon's response: "If you don't cooperate"--meaning if you get an attorney--"we'll start looking at your sons as suspects rather than witnesses."

It was both a threat and a promise. In Colorado Springs exercising one's right to counsel is tantamount to self-incrimination.

Saturday, March 15, 2008

How an Innocent Person is Convicted, Part 2: Cultivation of Ingnorance

The cold gray November day flowed in from the street as I opened the door of our house to what turned out to be a plainclothes detective from the El Paso County Sheriff's Office. The chill followed him inside. "We want to talk to your son, Joel," he said.

Joel was at his apartment near the Colorado Springs campus of the University of Colorado, where he was working on his since-finished degree in chemistry. We asked why the detective wanted to speak with Joel. The answer seemed less than forthcoming. The detective said Joel had witnessed an event the preceding night--not a big deal, the detective said, "just a minor tiff--no not even a minor tiff." Just a trivial thing.

It sounded disingenuous. If this event were so minor, why a plainclothes officer, why a Saturday afternoon?

Gloria, my wife, called Joel at his apartment and told him to come to our house. When Joel arrived, the detective wanted Joel to come downtown with him. We demurred. The detective retreated to the cul-de-sac in front of our house.

Inside, the phone rang. Gloria took the call upstairs. Afterwards, she called to Joel and to me, "That was Officer Shannon from the Sheriff's Office. He said that last night Brad Orgill stabbed someone and killed him. They need to talk to Joel and Todd as witnesses."

Thursday, March 13, 2008

How an Innocent Person is Convicted, Part 1: the forgotten witness interview

When a member of your family languishes in prison for a crime he didn't commit, you find youself haunted by the simple question: Why? I've spent my whole working life sworn to defend the constitution--as a military pilot, a member of the FBI, a professor at the Air Force Academy. To see a wrongful conviction firsthand is a tragedy that is multiplied by the high expectations I'd come to have for American justice. I still believe in our founding principles, but I've come to realize how imperfectly we've implemented them.

The path to wrongly convicting Todd began early on the day Anthony Madril died. Detective Ricky Frady interviewed one of the most important witnesses, Chas Shwartz. Schwartz sat in the driver's seat of his pickup while Madril and Orgill battled in front of him and while Lopez and Todd confronted each other just outside the passenger-side door. A file containing a transcript from Frady's interview is available online.

In his initial report of the this interview, Frady writes (in error) that the videotape machine had malfuntioned, so he had only his memory and notes to go on. As a result the report is sketchy and fails to mention details that reveal the sequence of events that night. If you read the actual transcript of the interview (taken from the videotape, which, it turns out, had been recorded after all), you'll see how Frady focuses on exactly where Todd was and where Madril was and how Madril was fighting with Orgill. Much of that detail failed to make it into Frady's initial report. In fact, Frady would not actually view the videotape for another year and a half. In the meantime, the police were not able to consider this important eye-witness account, which provided significant detail that was exculpatory for Todd.

Next: Part 2--Ignorance leads to more ignorance.

Wednesday, March 12, 2008

The Prosecution's Theory

We felt confident that the prosecution at Todd's trial would not be able to show how Todd could have possibly stabbed Anthony Madril. After all, Todd had never gone forward of the pickup truck in front of which Anthony Madril and Brad Orgill fought so violently. Todd had been engaged non-violently with Madril's friend Chisum Lopez the whole time.

Both Lopez and Madril's other friend Chas Schwartz placed Todd at a considerable distance from Orgill and Madril as Madril shouted "It's on!" Madril and Orgil were the only two seen in a physical confrontation. When that confrontation was over, Madril emerged bleeding from his chest and told his buddies, "I've just been stabbed."

The prosecution presented their entire case--nearly two weeks of testimony--and never once did they specify exactly when or how the stabbing took place. Not until their closing argument, after the defense had rested, did prosecutor Stephanie Rikeman reveal their fabulous theory:

Todd runs up to Madril, a meeting that is unseen by any of the six witnesses, and stabs him in the heart, tearing open both ventricles. Madril then goes off to fight enthusiastically with Orgill and Todd goes on to a non-violent confrontation with Lopez.

That the prosecution waited until the closing argument to voice this theory can only suggest that they didn't want anyone to think about it for too long. Beyond the obvious question of one's ability and interest in engaging with a second person after just being stabbed in the heart, the prosecution's theory also raises many other questions:
  1. Why would Madril yell "It's on" instead of announcing that he'd been stabbed?
  2. Why didn't anyone see this confrontation? Did six other young men find something else more interesting to watch?
  3. Why would a person suddenly stab someone in the heart and then just put the knife away and limit himself to verbal jousting?
  4. Why would Todd not have blood transferred to his clothing--especially to his pockets where he kept the knife?
  5. Why does the trail of Madril's blood begin and end with the trajectory of his confrontation with Orgill?
  6. Why was Todd never seen in the area that contains the trail of Madril's blood?

Because the prosecution's theory came so late in the trial, it became even more important that the defense be accorded an opportunity to have a fully-developed theory of defense instruction for the jury.

Tuesday, March 11, 2008

The Theory of Defense Instruction to the Jury

The entitlement to a "theory of defense" instruction helps balance the advantage the prosecution gains by being able to set the pacing and agenda of a trial. The prosecution decides which witnesses to call and when to call them as the case is made. In other words, the prosecutor determines the plot of the story being told to the jurors. That can disadvantage the defense as it battles the prosecution's interpretation of evidence and testimony while at the same time trying to advance its own understanding of what happened.

In Todd's case the defense was hampered by the loss of a central piece of evidence--the condition of the knife that the prosecution alleged to be the murder weapon. That disadvantage was compounded when the trial judge refused the theory of defense instruction proposed by the defense attorneys. One of the key elements of the rejected instruction was the defense theory of how the knife came to have a minute amount of blood on it. The judge's reason for refusing the instruction (that the evidence supporting the theory was not "ample") is not consistent with the legal standard. (The details are available in the appeal briefs). In truth, the trial record offers considerable supporting evidence for the instruction offered by the defense.

Monday, March 10, 2008

Deferred Sentences and a Quid Pro Quo

Dennis Huspeni reports in today's Colorado Springs Gazette about the local DA's use of deferred sentences. Assistant District Attorney Amy Mullaney defended the practice saying, "District attorneys are mandated to seek justice, not just to convict everyone or send everyone to prison. Sometimes good people just make a mistake."

Such use of deferred sentences makes good sense; however, Mullaney avoids raising the issue of the deferred sentence that serves as a quid pro quo--a deferral in exchange for services rendered, typically testimony favorable to the prosecution in an upcoming criminal trial. That's the very sort of deferred sentence Mullaney arranged for Brad Orgill in exchange for testimony against Todd.

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?

Sunday, March 09, 2008

Altered Evidence: How the State Explains the alteration of evidence in its possession

Consider this: The forensic detective examines the purported murder weapon, notes the existence of black debris on it--debris that seems to have come from contact with a tire. The detective considers its importance, discusses with his supervisor how best to preserve it, and decides to leave the debris intact and send the weapon to the Colorado Bureau of Investigation (CBI) crime lab. But when the weapon arrives at the state crime lab, its analysts note that no such debris exists. What's happened to it?

We wondered about that in Todd's case.

So did the trial judge who accused the state of "dropping the ball."

The state never offered an explanation at Todd's trial, but Patricia Van Horn, the attorney representing the people in Todd's appeal, came up with a creative answer:

"It is true that the substance disappeared from the knife while in the custody of law enforcement. But there is nothing to show that law enforcement was responsible for destroying it. The substance was still present when the detectives placed the knife in the envelope to be transported to CBI, and the substance may have simply oxidized or been chemically altered to a non-detectable form by exposure to air in the envelope." (a direct quotation from Van Horn's brief, p. 11)

Bad science or magical thinking? You be the judge.

Saturday, March 08, 2008

Altered Evidence

Is it fair for the prosecution in a criminal case to rely upon evidence altered while in possession of the police?

In Todd's case, the prosecution alleged that his knife had been used to stab the victim. But 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 a black debris on it--debris, 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 later 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.

What does the state's playing fast and loose with this crucial piece of evidence suggest? Should such altered evidence be acceptable in a court of law? If so, do we open the door for the more general use of trumped up evidence to obtain convictions?

Friday, March 07, 2008

The Appeal Process

Contrary to the belief of many, a legal appeal is not a do-over or a repetition of the trial. Rather, it is an avenue for reviewing the procedures used by the trial court to determine if the trial was fair. To make its decision, the Court of Appeals reviews the official record of the trial in light of existing legislation and decisions made in previous cases. The purpose for this review is to ensure that the trial was fair. A more formal legal term for fairness is “due process.”

The legal briefs in Todd's case flesh out the bare outline that follows, but here in briefest summation are the three questions of fairness that they raise:

  1. Is it fair for the state to use altered evidence to gain a conviction? In this case, the altered evidence is the knife which the state alleged to be the murder weapon. There is no dispute that the knife’s condition changed while it was in police custody. When the police first examined it, they saw black debris on it but no blood; later at the state crime lab, a minute amount of blood was found on the knife, but the black debris was gone. The trial court judge decided on technical grounds to permit the knife’s use as evidence anyway.
  2. Is it fair for the trial court judge to restrict the defense from having a full theory-of-defense instruction for the jury? Despite the fact that the knife’s condition had been altered, the defense was not permitted to include in its theory-of-defense instruction a theory of how the blood might have been deposited on the knife.
  3. Is it fair for the prosecution to usurp the jurors’ responsibility to be the sole arbiters of the truthfulness of witnesses? During closing arguments the prosecuting attorney vouched for the honesty of Brad Orgill—the only person seen fighting with the victim and who was covered in the victim’s blood. The prosecutor also asserted that the defense attorney had lied in his summation. The trial court judge failed to instruct the jury to disregard this emotionally charged accusation.

Should the court find that any of these issues causes doubt in the integrity of the verdict, they will have to find a remedy for the unfairness. They may direct a new trial that could include certain sanctions, or they may order a dismissal.

For more about the appeal, including links to the legal briefs, click here.

Thursday, March 06, 2008

Oral arguments approach

We've received word that oral arguments for Todd's appeal are scheduled for April 10th. They'll be heard at four o'clock at the Denver University's Sturm School of law. Details can be had at

For us this is a time of hope and of fear. Hope becuase it is our best chance for justice. Fear because so far the legal system has failed so miserably. Still, we have no choice but to trust that those charged with administering justice on the state level will, unlike their Colorado Springs counterparts, fulfill their duty to the truth.