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.

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