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)?

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.

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.

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.