Lawyers say Colorado’s judicial branch has unlawfully removed a well-respected judge from presiding over the appeal of an Aurora man’s death sentence.
After years on the case, District Judge Gerald Rafferty was fired just as he was about to rule on the appeal of Sir Mario Owens, a death row inmate convicted of murdering a state lawmaker’s son.
“I’ve never seen anything like this before. It smacks of something tawdry and political,” said Chris Decker, a recent former president of Colorado’s Criminal Defense Bar.
“If nothing else, it just looks so bad,” added Denver defense attorney David Lane. “The optics of this are horrible for the Supreme Court.”
Rafferty is a former Vietnam-era Air Force pilot who worked as an FBI agent and then as a prosecutor before becoming a fixture on Colorado’s 18th Judicial District bench.
He presided over the 2008 trial of Owens who, along with co-defendant Robert Ray, was sentenced to death by lethal injection for the 2005 murders of Vivian Wolfe and her fiancé, Javad Marshall-Fields – son of state Rep. Rhonda Fields, an Aurora Democrat.
For more than seven years since, Rafferty also has presided over Owens’ post-conviction appeal, which asserts that prosecutors failed to disclose key evidence, including information about alternate suspects, police surveillance, plea offers and other dealings with witnesses that could have been vital to Owens’ trial defense. Those dealings include the DA’s office giving a key witness a car.
More than two years of appeals hearings in the case ended in May 2015. Wading through tens of thousands of pages of court transcripts and hundreds of evidence exhibits, the judge worked on his written decision for about 11 months.
In late January, before he was able to finish his ruling, Rafferty turned 72 — the state’s mandatory retirement age — but Colorado Supreme Court Chief Justice Nancy Rice made a special appointment to allow him to continue presiding over the Owens case. By law, Rafferty couldn’t start his special state contract for at least a month after he retired. In that interim this past winter, he did some work for a private law firm in Denver on a case unrelated to Owens’.
A month and a half into the judge’s extended contract with the state this spring, Colorado’s Court Administrator’s office fired Rafferty, saying he “breached the terms of the contract by practicing law at Collins & Coldwell, LLC” without having notified the office of his outside employment.
The Chief Justice made the decision to fire Rafferty “when it was revealed that he was doing other legal work,” state judiciary spokesman Jon Sarché told The Independent. “It was a violation. It was a breach.”
Rafferty is disputing that claim, saying he disclosed his private legal work to a top state judicial official prior to starting his contract with the state. Emails provided by the state indeed show that the court administrator’s chief of staff, Mindy Masias, discussed Rafferty’s outside legal work with him as early as February.
The judge’s lawyer, Patrick Tooley, said he couldn’t discuss the contract dispute.
The timing and manner of Rafferty’s ouster have triggered questions about whether state officials used the contract dispute as a pretense for firing the judge to preserve Owens’ death sentence.
Rep. Fields ran for office in response to her son’s murder as a way, she says, “to ensure justice for victims and their families across the state.” She’s a death penalty advocate who wants to see Owens’ and Ray’s deaths sentences stick.
Sources familiar with the case believe Judge Rafferty — who had made several comments during appeals hearings about government misconduct — was on the verge of ruling to overturn Owens’ death sentence or granting him a new trial. By removing Rafferty and appointing a new judge to the case, the state has not only avoided such a ruling, but also further delayed a nearly eight-year appeals process, possibly by several more years.
Rafferty was just about to issue his order in Owens’ case in April when judicial officials disabled his email account and cut his access to the state server, preventing him from filing his ruling. They fired him a few days later.
The state then made the unusual move of sending out a news release about Rafferty’s removal. The press release was the first in memory announcing the firing of a state judicial employee. The state issued no such announcement when, for example, two Larimer County District Court judges were publicly censored for misconduct in Timothy Masters’ wrongful conviction.
“He was in the middle of issuing an opinion and got summarily sacked,” Decker said of Judge Rafferty. “What I believe is that someone got wind that there was about to be a favorable ruling and that someone went back and found something technical to remove him on.”
Said Lane, “If it comes out that Judge Rafferty was going to grant relief in this case, that would rise to the level of scandalous.”
Javad Marshall-Fields was killed, along with his fiancé, before he was expected to testify against Owens and Ray in another murder investigation.
Owens’ lawyers, who say their client was wrongly convicted, are frustrated with this new delay.
“Mr. Owens and his entire defense team have waited ten long years for the truth to come out which would show he is innocent,” said Jim Castle, lead defense attorney on the case. “Right when that was going to happen, the rug was pulled out from under us and the judge who was issuing a decision was silenced by reasons which are unclear and appear to be unjustified.”
The prosecution also expressed dismay over Rafferty’s removal.
“We, along with the victims, are extremely disappointed by the potential for delay that the re-assignment to another judge may cause,” reads a statement by 18th Judicial District Attorney George Brauchler’s office. The statement notes that Brauchler “has no role in any decisions regarding which judges act as senior judges or which judges are assigned to any given case.”
Rep. Fields says she’s baffled by the judge’s removal from a case that, 11 years after her son’s death, sorely needs closure.
“It’s troublesome, to be real honest with you,” she told The Independent. “I have the utmost respect for Judge Rafferty. He conducted himself with the utmost level of integrity. I was shocked that he would do something like that and put the case in jeopardy.”
On Friday, the case is set to formally be turned over to Judge Christopher Munch of Jefferson County, who will have to start from scratch reviewing the 22,700-page court file, the 28,288-page trial transcript and the 27,836-page post-conviction record, plus 1,889 exhibits from trial and 880 exhibits from the appeals phase. Munch would also have to hold new hearings in the appeal, which totaled half a year under Judge Rafferty.
State taxpayers will have to pay Munch and a law clerk, plus four defense attorneys and their support staff, three prosecutors and their full-time paralegal, an Aurora detective who attends all court appearances, several investigators and witnesses — plus their travel costs. At the very least, the bill for the re-do will total hundreds of thousands of dollars.
Before Munch takes over the appeal Friday, Owens’ lawyers are expected today to file an emergency petition with the state Supreme Court arguing that Judge Rafferty was unlawfully removed from Owens’ case and that his order should be issued. They want to know the details of the judge’s removal, including who initiated it.
“There needs to be more transparency about what happened here. Particularly in capital cases, everything must be in the open. This is necessary for the defendant, the victims and the public,” said Castle.
“If necessary we will push the boulder of truth back up the mountainside of justice but that will be at a great cost to Mr. Owens and his family and the citizens of the state of Colorado,” Castle added. “We are deeply saddened by the silence of the judiciary in a matter of this importance as we have put so much trust in the judiciary to see that the justice will prevail.”