Attorney general may have exceeded power in death penalty prosecution
Jack Roth was ousted from prosecuting Miguel Contreras-Perez. That same week, he was no longer employed by Attorney General Cynthia Coffman’s office.
Colorado Attorney General Cynthia Coffman’s office is facing accusations that it overstepped its power in a death penalty case.
One of Coffman’s top aides, Assistant Attorney General Jack Roth, gave a speech in November 2016 claiming responsibility for the decision to seek capital punishment against a man being prosecuted for a prison guard’s murder, despite strong urging from the guard’s family not to “go death.” The decision reflected the wishes of some top officials in the Department of Corrections, which has paid about $1 million to prosecute the case.
Under state law, it’s the locally elected district attorney — not the attorney general, nor the prison system — who must decide whether seek the death penalty.
In late July, lawyers for the defendant, Miguel Contreras-Perez included a video of Roth’s speech in a motion arguing that the prosecution’s “inflammatory conduct” was reason for the judge to strike the death penalty. That same week, Roth was thrown off the case by the 16th Judicial District Attorney and was no longer employed by Coffman.
An attorney general’s spokeswoman confirmed Roth is no longer on staff, but cited a gag order on the case and the need for confidentiality in personnel matters when saying Coffman wasn’t available to comment.
For his part, Roth hasn’t responded to several inquiries from The Colorado Independent about his departure and his Nov. 8, 2016 remarks about the case to students at the University of Colorado in Colorado Springs’ School of Public Affairs.
Contreras-Perez, 38, had been serving 35 years to life for the rape of a teenager when he was accused of fatally stabbing Mary Ricard, a corrections officer at the Arkansas Valley Correctional Facility, with a kitchen knife in 2012. He’s also being prosecuted for the attempted murder of another corrections officer who survived after her throat was slashed in the same incident.
The 16th Judicial District Attorney sought help from a special unit in the Attorney General’s office that works specifically on capital cases. Roth was one of the heads of that unit and was working on the case as a specially sworn-in Crowley County DA at the time of his speech.
Roth struck a casual tone with the room full of college students, peppering his lecture with expletives, murder scene details, and macho anecdotes. His Power Point – complete with cop-show style heavy metal and images he called his “I-love-me slides” – detailed his volunteer work as a police reserve officer.
“I was a cop while I was a lawyer, which means that I was your worst nightmare. I was a lawyer with a gun. And a Taser. But I got both sides of it. I was on both sides of the fire. I was a prosecutor and a cop. I pulled my gun many times while I was a cop. I had to be Tased in order to be certified. They called it ‘riding the lightning.’ I would recommend – that’s a lot of fun.”
Roth boasted about his experience being choked as a reserve officer training in the police academy, and chuckled about his subsequent volunteer work choking rookies.
“I get to do it,” he said.
He called himself “twisted.” He showed a slide that likened himself to a shark. And he reminisced about his boyhood when he said he’d “climb up to the roof of our house with a towel taped around my neck as a superhero cape and jump off the roof. Because I thought I could fly. I was a superhero.”
Roth approached his topic – the law of death penalty prosecutions – with the same swagger.
“This is gonna be a little graphic. Death always is. If that bothers you, tough. I don’t care,” he quipped, to some uncomfortable laughter in his audience.
And, when describing the arduous back and forth entailed with litigating capital prosecutions, he said, “Now you may want to say that this is a game. Sometimes it seems like a game when I’m dealing with defense attorneys.”
In two court filings on July 31, Contreras-Perez’s defense team took legal objection to Roth’s comments. One of the motions says Roth disclosed confidential information in a case that has been sealed by the judge.
“He went far beyond what a prosecutor is allowed to say,” says defense attorney David Lane, noting those comments could deprive his client a fair trial.
The other motion takes issue with Roth’s comments that seeking death was his call.
“Do you agree with my decision to file death on Contreras-Perez?” Roth had asked the class.
“What if I told you in my Perez case, Mary Ricard’s family does not want the death penalty? They are very, very religious and they believe that killing is only in God’s hands. They don’t want the death penalty. But I’m still going forward with it. Why? Well, I can tell you my reason is that I’m looking out for every other corrections officer out there. He’s already serving 35 to life. If I don’t go death penalty on him, what’s that say to every other corrections officer out there? Your life doesn’t mean anything? Does that make for some uncomfortable meetings with the Ricard family? Little bit.”
The second motion seeks to prohibit the government from seeking Contreras-Perez’s death on grounds that he’s unfairly being prosecuted by two government agencies – the DA’s and attorney general’s offices – at once on the same case. “The attorney general has no authority to prosecute a case simultaneously with, or instead of, the district attorney,” it reads.
The motion noted that the Department of Corrections (DOC) is a client of the Attorney General’s office, and that it had “paid well over $900,000 towards the prosecution of this case” as of the beginning of 2017 under an arrangement whereby rural counties in which prisons have been built receive DOC money to prosecute cases stemming from those prisons.
“It is apparent that the Department of Corrections and the Attorney General’s office are running the show: making the decision to seek death, ignoring the opposition of the victim’s family, paying hundreds of thousands of dollars for the death prosecution, and directly deploying lawyers in furtherance of their quest for death,” the motion reads.
The DOC said this morning that it “has not taken a position on the death penalty being pursued against Miguel Contrerez Perez” and that “individual opinions are different then the departments position.”
Jim Bullock, the 16th Judicial District Attorney hasn’t responded to inquiries from The Colorado Independent about Roth’s ouster from the case
A hearing on possible sanctions against the prosecution is scheduled this morning in Ordway.
It’s unclear how Roth’s comments may also affect several other pending cases that he discussed during his lecture.
The surfacing of Roth’s speech isn’t the first time the conduct of the attorney general’s special death penalty unit has been questioned.
In 2008, the unit and the 18th Judicial District were sanctioned for allowing Roth’s colleague, Daniel Edwards, to help prosecute a case against an accused prison murderer whom Edwards had represented six years earlier as a defense attorney in private practice. “Mr. Edwards has literally switched sides,” Lincoln County District Judge Stanley Brinkley wrote when ordering the state and local prosecutors off the case and ordering a special prosecutor.
State lawmakers also have raised eyebrows about the AG’s death penalty squad, which was formed in 1994 as the Capital Crimes Unit and is now called the Violent Crimes Assistance Team (VCAT). The unit was created to support rural district attorneys in complex death penalty cases that their staffs may be too small or inexperienced to handle alone. But a legislative report from 2015 says that by 2009 “unit attorneys became much more active participants in prosecutions, including actually trying cases as the lead attorneys.” The report also found there have been times the unit has worked on more cases in metro Denver than in rural areas.
In advising lawmakers not to grant the unit budget increases, a legislative analyst wrote that, “With no statute defining the role and function of the VCAT the General Assembly’s intended role for the unit remains unclear.”
Lane is among several members of the criminal defense community who say the unit’s involvement and zeal in capital cases need to be questioned.
“What you have here is the state-paid killers from the AG’s death squad coming in and pressuring the local DAs into seeking the death penalty in order to justify their own existence.”
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