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In the crosshairs of conscience: John Kitzhaber's death penalty reckoning

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To cope with his dread, John Kitzhaber opened his leather-bound journal and began to write.
It was a little past 9 on the morning of Nov. 22, 2011. Gary Haugen had dropped his appeals. A Marion County judge had signed the murderer's death warrant, leaving Kitzhaber, a former emergency room doctor, to decide Haugen's fate. The 49-year-old would soon die by lethal injection if the governor didn't intervene.
Kitzhaber was exhausted, having been unable to sleep the night before, but he needed to call the families of Haugen's victims.
"I know my decision will delay the closure they need and deserve," he wrote.
The son of University of Oregon English professors, Kitzhaber began writing each day in his journal in the early 1970s. The practice helped him organize his thoughts and, on that particular morning, gather his courage.
Kitzhaber first dialed the widow of David Polin, an inmate Haugen beat and stabbed to death in 2003 while already serving a life sentence fo…

Colorado Independent fighting to unseal secret records in death penalty case

Sir Mario Owens
The records document misconduct prosecuting Sir Mario Owens under the leadership of former DA Carol Chambers and her successor, George Brauchler

Colorado’s judicial system is shrouding in secrecy documents about prosecutorial misconduct in the case against Sir Mario Owens, a death row inmate convicted of murdering a state lawmaker’s son.

The Colorado Independent is fighting in court to unseal records showing that the 18th Judicial District Attorney’s office suppressed evidence under the leadership of former DA Carol Chambers and her successor, George Brauchler.

Brauchler’s office is opposing the unsealing of the court papers that discussed its misconduct.

“The People object to Colorado Independent’s current request,” Brauchler’s staff wrote in a Nov. 17 court filing. The office has until Thursday to file a legal response outlining its objections in Arapahoe County District Court.

In an email to The Independent’s counsel, Steven Zansberg, Brauchler’s office likened allegations of prosecutorial misconduct to salacious and unproven allegations in a private divorce case. “The District Attorney believes that the court in this case has, and can continue to, limit access to portions of its file that may become the vehicle for an improper purpose, namely for the court file to improperly serve as a reservoir of libelous statements for press consumption,” Brauchler’s deputy, Rich Orman, wrote.

Orman failed to acknowledge that a judge has ruled that the misconduct allegations are founded.

District Court Judge Christopher Munch issued a 1,500-page order in September that upheld Owens’ death sentence, but found a pattern of prosecutorial misconduct, including the withholding of evidence that might have helped Owens’ case.

“A man’s life is on the line here,” says The Independent editor Susan Greene. “The public has a right to know in detail how, as a judge has ruled, these public officials mishandled a death penalty prosecution. This is exactly the kind of case that warrants the most public scrutiny.”

Owens, 32, was tried, convicted, and sentenced to death in 2008 for the 2005 killings of Vivian Wolfe and her fiancé, Javad Marshall-Fields – son of Rhonda Fields, now a state senator from Aurora. Marshall-Fields was scheduled to testify against a suspect in a different murder case for which Owens ultimately was convicted.

Owens is one of three inmates on Colorado’s death row. The two others are Robert Ray, his co-defendant in Wolfe’s and Marshall-Fields’ killings, and convicted Chuck E. Cheese killer Nathan Dunlap, whose execution Gov. John Hickenlooper has reprieved temporarily, citing concerns over how death sentences are meted out in Colorado.

In a state whose population is 4 percent African-American, all three death row inmates are black. And all three were prosecuted by the same District Attorney’s office in Arapahoe County south of Denver, long Colorado’s death penalty epicenter.

Under Chambers’ control, that office was reported by The Denver Post to have handed out bonuses to prosecutors who hit target goals for convictions – a practice Owens’ lawyers have claimed amounted to an improper bounty system. The office suppressed key evidence in other cases, including those in which it was seeking the death penalty. When Brauchler was elected DA, he kept the two lawyers who led the Owens prosecution on the case and, as a court ruling shows, didn’t disclose evidence to Owens’ lawyers, as required.  The rules of criminal conduct say withholding evidence that could have swayed a jury against a guilty verdict amounts to prosecutorial misconduct. Under Colorado’s death penalty law, it’s one of several reasons to disqualify a case for death penalty eligibility.

Much of the evidence-withholding  by the DA’s office took place under Chambers’ watch. But, according to public records, even well into his tenure, Brauchler’s office kept secret witness protection files, which judge Munch and the judge presiding over the case before him found should have been disclosed to Owens’ defense counsel.

There is no physical evidence, no confession, and no eyewitness who identified Owens in a case prosecutors built almost entirely on the testimony of informant witnesses to whom the DA’s office gave funds, plea bargains, or both in return for their cooperation against Owens.

Court records show that one of those witnesses was promised and later given a DA’s office car. Some were given gift cards for local businesses. One received $3,400 in benefits, including cash for Christmas presents in the months prior to testifying for the prosecution.

If he didn’t cooperate, court records show, one of the main prosecution witnesses was threatened with being charged for the murders Owens was accused of and with receiving two life sentences. Another witness received a suspension of his jail sentence on the condition that he help prosecutors in Owens’ 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, records indicate. Records also show that informants who had been convicted of crimes were allowed to violate probation and commit future crimes without consequences so long as they cooperated.

Owens’ appeal argued that by failing to disclose these deals to Owens’ lawyers before trial, the prosecution rendered them unable to cast doubt on those witnesses’ testimonies and put their credibility in dispute.  As a result, Owens’ appeals counsel argued, Owens was denied a fair trial.

Click here to read the full article

Source: The Colorado Independent, December 3, 2017


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