District Attorney Mitch Morrissey’s failure to prosecute deputy lands him in court

Anthony Waller is no choirboy. He has a long and violent criminal history, a disdain for law enforcement and a reputation in the Denver jail as an irritating smartass.

That’s what Denver District Attorney Mitch Morrissey is expected to argue in court this afternoon, trying to justify his decision not to prosecute the deputy who attacked Waller in front of a judge three years ago today.

But, that’s not the point.

Waller, who had been taken into custody on suspicion of assaulting a woman in an east Colfax motel, posed no threat during his appearance before Denver County Judge Doris Burd. After the judge advised him of his rights and outlined a schedule for legal procedures, Waller spoke up, politely.

“Ah, yes, ma’am, I’d like to object first,” he said. “If I’m under investigation, I thought the investigation came first and then the arrest came.”

Just as Judge Burd started to explain that the city had the authority to hold Waller for three days before arresting him, a sheriff’s deputy assigned to the courtroom suddenly took hold of Waller – who was fully shackled — from behind. Waller turned his head to look at the deputy, who then yanked Waller violently by a belly chain, spun him around and slammed him into a large glass window – all on videotape.

The deputy, Brady Lovingier, is no choirboy, either.

Lovingier – who’s the son of Bill Lovingier, the former head of the Denver Sheriff’s Department – lied to internal affairs investigators about the incident. While hauling off on Waller, who’s black, Lovingier, who’s white, also called Waller “boy.”

It was the kind of attack that, when perpetrated by a gang member, uppity Little League parent or drunken guy in a bar, typically results in assault charges.

But Denver’s District Attorney Mitch Morrissey chose not to throw the book at Lovingier just as Morrissey has chosen not to throw the book at every sheriff’s deputy and police officer who has hurt inmates and criminal suspects — and even killed them — on duty. As anyone who follows the long list of Denver’s excessive force cases well knows, hauling off on someone while carrying a badge puts you above Morrissey’s interpretation of the law.

“This pattern of excusing excessive force, it has to stop,” said Waller’s lawyer, Ken Padilla.

As The Colorado Independent reported when it broke the story, Judge Burd was in full view of the attack in her courtroom, to which she can be heard on videotape responding. “Ooh, lah, lah.”

The judge reported the incident to a fellow judge, resulting in an excessive force grievance being filed against Lovingier. But that didn’t speed up the probe by a sheriff’s department with a habit of ignoring attacks by its officers. A formal response didn’t come until more than a year after the September 11, 2012 incident, when the city suspended Lovingier for only 30 days.

Lovingier appealed that disciplinary decision, and lost.

“If he had killed me, would he have gotten 30 days?” Waller, who was convicted in the motel assault case and sentenced to two years in jail, told The Independent.

“I was defenseless. I was addressing the judge, exercising my constitutional rights, and this is what I get? A savage beating?”

Denver internal affairs investigators found that Lovingier twisted the facts of the incident, saying, “It appeared Mr. Waller tripped up on his leg irons when I turned him to regain control and leave the courtroom… It is also apparent to me that the trip accelerated our momentum toward the glass, which is why we got there so fast and appeared harder than I would have anticipated.”

The discipline report concluded that “inmate Waller posed no threat to [Lovingier] or anyone else” and that there was “no legitimate reason” for the attack.

In an extremely rare judicial review order this week, Denver District Court Chief Judge Michael Martinez is demanding Morrissey explain why he never prosecuted Lovingier. The emergency hearing has been set for 2:00 this afternoon because the three-year statute of limitations to press criminal charges expires today.

As reason for his decision not to prosecute Lovingier, Morrissey is expected to cite Waller’s violent criminal history and penchant for taunting sheriff’s deputies in the jail. Waller’s big and kind of scary, Morrissey is expected to argue, so Lovingier apparently was within his rights.

If Judge Martinez doesn’t buy Morrissey’s reasoning, he could appoint a special prosecutor or even order Morrissey to press charges against Lovingier.

Morrissey’s office works closely with the police and sheriff’s department, regularly relying on officers’ testimonies to help win cases.

Based on evidence compiled by the city’s internal affairs department – a source critics say is highly questionable — Morrissey has decided not to press charges in several high profile force cases. Those include last year’s police shooting of unarmed 17-year-old Jessica Hernandez and the 2010 killing of street preacher Marvin Booker, who was Tasered and choked by deputies in the jail. Both cases have been ruled homicides.

Even in the rare instances the city has found officers to have committed wrongdoing, Morrissey has come to their defense.

One such case is an attack first reported by The Independent in which sheriff’s deputy Thomas Ford slugged inmate Kyle Askins on videotape. Ford was fired for excessive force.

Far outside his boundaries as district attorney, Morrissey wrote a scathing and unprecedented letter in January admonishing Manager of Safety Stephanie O’Malley for asserting that Ford kicked Askins when Morrissey said no kick was evident on the videotape.

Apparently, in Morrissey’s view, a deputy slugging an inmate – much like a deputy slamming an inmate into a wall — wasn’t cause enough for criminal prosecution.

The Lovingier case raises questions not only about Morrissey’s pattern of not prosecuting excessive force cases. It also shines light on continuing dysfunction in the Sheriff’s Department.

After Lovingier was found to have mislead investigators about his attack on Waller, the department assigned him to train other officers on how to handle volatile situations and how to write official reports about use-of-force incidents.

Then Sheriff Gary Wilson said he was “unaware” Lovingier was being trusted to train colleagues on some of the same protocols he has violated. One office in the department apparently hadn’t passed word of Lovingier’s misconduct to another.

Wilson went on to defend Lovingier’s assignment, saying he was “comfortable” with his work. But the Sheriff later changed his mind, deciding to yank Lovingier off the training post.

Wilson was ousted five month later as head of a department that has been found to be riddled with misconduct, mismanagement and indifference to excessive force. It has been 14 months and Mayor Michael Hancock’s administration still hasn’t named a new sheriff.