Withheld Evidence Could Risk Innocent Lives

In a recent op-ed in the Denver Post, Colorado defense attorney David Lane argued that examples of the state withholding important evidence in capital murder cases should be grounds for reconsidering the death penalty: “The death penalty in Colorado is a fatally flawed government program. The alternative is life with no possibility of parole. Jurors for many years have expressed a preference for that severe sanction, which is actually less costly than the death penalty.” Lane cited a recent ruling by the Colorado Court of Appeals affirming the reversal of David Bueno’s first-degree murder conviction, in which a death sentence had been sought, because the state failed to turn over evidence about other suspects. (Lane represents one of the co-defendants in the case.) Neither of the prosecutors responsible was disciplined for this breach of conduct, and one has since been elected the District Attorney of El Paso County. Lane also highlighted the cost to Colorado taxpayers: “[B]ecause of the built-in costs for a death penalty case, likely over $1 million was wasted in a failed effort to kill Bueno.” Read the full op-ed below.

A reason to kill the death penalty in Colorado

By David A. Lane

Two weeks ago, former Texas prosecutor Ken Anderson began serving a jail sentence for having hidden evidence of innocence in a Texas death penalty case resulting in the wrongful conviction of an innocent man.

That same week, the Colorado Court of Appeals affirmed the trial court in Lincoln County which threw out the first-degree murder conviction of David Bueno because deputy district attorneys Rich Orman and Dan May failed to turn over compelling evidence of Bueno’s innocence to the public defenders representing him. Even worse, the whole time they were sitting on evidence of Bueno’s innocence, they were doing everything in their power to kill him, having sought the death penalty against him and his co-defendant, Alejandro Perez, whom I represented.The opinion from the court sets forth the facts in detail. In a nutshell, the prosecutors had compelling evidence that others besides Bueno and Perez may have killed a fellow prison inmate, and they failed to turn this over to the defense.

At the time they were violating their solemn oaths as prosecutors to “seek justice” and at the same time violating the law by not disclosing evidence of innocence, they were working for Carol Chambers, the only prosecutor in Colorado who was wildly in love with the death penalty. May is now the elected DA in El Paso County and Orman is busy trying to see James Holmes executed.

In the meantime, the new district attorney, George Brauchler, has done nothing about this finding of gross misconduct. He has yet to make a public statement condemning the actions of his employees and former employees. Indeed, it was his office that defended the case in the Court of Appeals and attempted to justify this miscarriage of justice.

The public should be outraged that in Colorado, conduct that is shocking even in Texas has been met with essentially no response from our elected officials.

The Supreme Court of Colorado must begin an investigation, and an investigation should be undertaken by law enforcement, with a request for the FBI to get involved. If, after a full public airing of the evidence, these prosecutors are found to have acted recklessly, knowingly or intentionally in hiding exculpatory evidence, they should be disbarred. There is no doubt that these prosecutors violated the law as even they admitted that the evidence in question was both in their possession and never disclosed to the defense. If law enforcement believes there is probable cause to believe they broke the law knowingly, they should be prosecuted and, if convicted, ultimately jailed for their attempt to kill Bueno all the while knowing that there was compelling evidence of his innocence they never gave to the defense.

Bueno got convicted of murder, yet a Colorado jury rejected the DA’s request for the death penalty and sentenced Bueno to life without possibility of parole. In the meantime, because of the built-in costs for a death penalty case, likely over $1 million was wasted in a failed effort to kill Bueno.

The death penalty in Colorado is a fatally flawed government program. The alternative is life with no possibility of parole. Jurors for many years have expressed a preference for that severe sanction, which is actually less costly than the death penalty.

Given the fact that the death penalty has been used once in Colorado since 1968; given that we have spent tens of millions on it; and given that we are now confronting gross prosecutorial misconduct in its application, isn’t it time to put this barbaric relic of a bygone era to rest? This year, the state legislature needs to abolish the death penalty.

David A. Lane is a defense attorney in Denver.

(D. Lane, “A reason to kill the death penalty in Colorado,” Denver Post, December 7, 2013). See Arbitrariness and Costs. See Response Commentary, “Life Without Parole Isn’t Always Adequate,” Dec. 14, 2013.