An Arapahoe County judge has denied the appeal of Colorado death-row pris­on­er Sir Mario Owens (pic­tured), despite find­ing that pros­e­cu­tors with­held evi­dence and failed to dis­close mon­ey, gifts, and favors they pro­vid­ed infor­mants in exchange for their tes­ti­mo­ny. In a 1,343-page Order and Opinion issued on September 14, Senior Judge Christopher Munch found that coun­ty pros­e­cu­tors had pre­sent­ed false evi­dence from two of their most crit­i­cal wit­ness­es and uncon­sti­tu­tion­al­ly with­held more than 20 sep­a­rate pieces of evi­dence that could have helped the defense chal­lenge the tes­ti­mo­ny of sev­en pros­e­cu­tion wit­ness­es, but said a defen­dant ​“must estab­lish more than help­ful­ness to sus­tain a claim of con­sti­tu­tion­al error.” The rul­ing fol­lowed the con­tro­ver­sial removal from the case of Senior Judge Gerald Rafferty, as the judge was prepar­ing his deci­sion after hav­ing presided over the case for more than a decade. Rafferty had ordered the pros­e­cu­tion to pro­duce hun­dreds of pages of records and grant­ed 37 weeks of hear­ings on what he had char­ac­ter­ized as pros­e­cu­tors’ ​“delib­er­ate choice” to with­hold evi­dence from the defense. Owens was sen­tenced to death in June 2008 for the 2005 shoot­ing death of Javad Marshall-Fields (the son of a Colarado state rep­re­sen­ta­tive) and Fields’s fiancé, Vivian Wolfe. A co-defen­dant, Robert Ray, was sep­a­rate­ly tried and sen­tenced to death. The case against Owens was large­ly cir­cum­stan­tial. As described by news reports in The Colorado Independent, there was ​“no defin­i­tive phys­i­cal evi­dence, no con­fes­sion, and no eye­wit­ness­es who iden­ti­fied Owens in a case pros­e­cu­tors built almost entire­ly on the tes­ti­mo­ny of infor­mant wit­ness­es to whom the DA’s office gave plea bar­gains, funds, or both in return for their coop­er­a­tion against Owens.” Owens alleged that the pros­e­cu­tion had with­held evi­dence from the defense that they had secured the tes­ti­mo­ny of coop­er­at­ing infor­mants by mak­ing thou­sands of dol­lars of cash pay­ments and pro­vid­ing undis­closed favors in unre­lat­ed crim­i­nal cas­es. The Denver Post report­ed that one wit­ness had been ​“promised and lat­er giv­en a dis­trict attorney’s office car” and anoth­er ​“received $3,400 in ben­e­fits, includ­ing cash for Christmas presents in the months pri­or to tes­ti­fy­ing on behalf of the pros­e­cu­tion.” The Colorado Independent​’s review of court records report­ed that ​“one of the main wit­ness­es [had been] threat­ened with being charged for the mur­ders Owens was accused of and with receiv­ing two life sen­tences” if he didn’t coop­er­ate. Another wit­ness had been grant­ed an undis­closed sus­pend­ed jail sen­tence con­di­tioned upon coop­er­at­ing with pros­e­cu­tors in Owens’s case. ​“People work­ing for the pros­e­cu­tion would appear at infor­mant wit­ness­es’ court hear­ings and ask for less­er sen­tences on the con­di­tion that they tes­ti­fy against Owens,” the paper wrote, and ​“infor­mants who had been con­vict­ed of crimes were allowed to vio­late pro­ba­tion and com­mit future crimes with­out con­se­quences as long as they coop­er­at­ed.” Owens’s appeal has attract­ed atten­tion because it was the first in Colorado’s ​“uni­tary review” process that had been billed as speed­ing up cap­i­tal appeals. Instead, it has sub­stan­tial­ly increased the length of appeals. It also raised ques­tions of trans­paren­cy because of the extra­or­di­nary lev­els of secre­cy through­out the pro­ceed­ings. Court files were sealed and a gag order pre­vent­ed the par­ties from speak­ing about the case for sev­en years, until the order was lift­ed in 2013. Numerous case exhibits remain under seal. Owens’s lawyers issued a writ­ten state­ment say­ing ​“We dis­agree with the court’s con­clu­sion that none of this mat­ters and can be tol­er­at­ed in Colorado in any case, nev­er mind a cap­i­tal one. This is a sad day for … the Colorado crim­i­nal justice system.”

A 2015 study found racial and geo­graph­ic dis­par­i­ties in Colorado pros­e­cu­tors’ deci­sion to seek the death penal­ty, with the death penal­ty more like­ly to be pur­sued against non-white defen­dants and defen­dants in Colorado’s 18th Judicial District, which includes Arapahoe County. All three pris­on­ers on the state’s death row are black and from Arapahoe County.

(J. Ingold, ​“Judge denies major appeal in Sir Mario Owens death penal­ty case,” Denver Post, September 14, 2017; S. Greene, ​“Three men still on Colorado’s death row after judge denies cap­i­tal appeal,” The Colorado Independent, September 14, 2017; J. Ingold, ​“Colorado Supreme Court denies peti­tion over fired judge in death penal­ty case,” Denver Post, July 12, 2016.) Read the tri­al court’s Order and Opinion in State v. Owens, No. 06CR705 (Arapaho Dist. Ct.). See Colorado, Race, and Prosecutorial Misconduct.

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