(This story has been updated.)
The investigator who has spent nearly two weeks in jail for refusing to testify for prosecutors in a death penalty case has changed her mind and was released late Monday. Greta Lindecrantz is scheduled to take the stand Wednesday morning after her lawyer says she became convinced that her refusal was hurting rather than helping efforts to overturn a death sentence for her former client, Robert Ray.
Arapahoe County District Judge Michelle Amico’s 14-day incarceration of Lindecrantz – a 67-year-old Mennonite who long has worked as a criminal defense investigator – made national and even international headlines.
What has been overlooked is why Lindecrantz’s testimony matters for Ray, who was convicted for the 2005 murders of Javad Marshall-Fields and fiancée Vivian Wolfe in Aurora. Marshall-Fields was gunned down a week before he was scheduled to testify against a suspect in a different murder case for which Ray’s co-defendant, Sir Mario Owens, ultimately was convicted. Ray and Owens are two of the three men on Colorado’s death row.
Ray’s legal team is challenging his conviction and death sentence based on two claims. One is that prosecutors in Colorado’s 18th Judicial District Attorney’s office committed misconduct by not disclosing evidence that may have been helpful to Ray’s defense at trial. The other is that the legal representation provided by Ray’s trial team was inadequate.
Prosecutors are trying to rebut Ray’s ineffective legal assistance claim, and want Lindecrantz to testify about her work on the case from 2005 to 2009.
Lindecrantz is a longtime private investigator who’s prominent in Colorado’s criminal defense community. Her role on Ray’s defense team was as a mitigation specialist, the investigator in charge of collecting information about a capital defendant’s life that could help persuade jurors not to hand down a death sentence. In Ray’s case, as in all capital cases, the mitigation investigator works for the defense lawyers who set the mitigation strategy, tell the investigator what evidence to pursue, and decide what among that evidence to put before jurors.
Courts have found that mitigation is necessary in death penalty cases not to excuse the crime of murder, but to help explain why a convict may have committed it and to make sure jurors learn about positive aspects of a convict’s life before deciding on a death sentence. (Full disclosure: During a hiatus from journalism, I worked for a year as a mitigation investigator on an unrelated case.)
Ray’s post-conviction lawyers have called his trial lawyers as witnesses. Three testified about their investigation efforts and acknowledged they made mistakes, including failing to make sure that key mitigation witnesses were interviewed. Testifying over more than seven days, the lead defense lawyer, Mike Root, was more ambiguous in his memory of the case and about whether interviews fell through the cracks or weren’t pursued because of his legal strategy.
Ray’s post-conviction team notably didn’t call Lindecrantz as a witness. But prosecutors subpoenaed her to a Feb. 26 hearing, presumably because they thought she could help them prove that Ray’s trial team competently represented him. She refused to take the stand, citing her Mennonite faith and religious objection to the death penalty. She said she couldn’t cooperate with prosecutors seeking to uphold Ray’s death sentence, which she deems to be “state-sanctioned murder.”
Judge Amico said she respects Lindecrantz’s religious convictions, but that they’re trumped by the need for a fair hearing on Ray’s ineffective legal assistance claim and by her own need to determine the truth. She found Lindecrantz in contempt of court and ordered her to the Arapahoe County Detention Center until she would agree to testify.
During the penalty phase of Ray’s trial, prosecutors depicted him as having a lack of conscience, a lack of respect for human life, and a lack of humanity. Ray’s post-conviction lawyers say the trial defense team did little to mitigate the prosecution’s characterization of him as a thug, drug kingpin and manipulative, murderous mastermind. Over the past year of proceedings, they have presented evidence showing that Ray’s defense team neglected the most basic responsibility of compiling a timeline of his social and emotional history and failed to investigate major swaths of his life before he was arrested on this case as a young adult.
Mary Claire Mulligan, one of Ray’s post-conviction lawyers, noted that Ray’s trial team failed to tell jurors that at age 7 or 8 he had been sexually assaulted by a 15-year-old cousin, and that a woman in her 30s forced fellatio on him and sexually assaulted him at age 11 – so young, that woman since has told a doctor who specializes in trauma and testified in Ray’s post-conviction hearings, that he still sat on the toilet to pee.
Mulligan argued that the trial team neglected to discover what a doctor has diagnosed as Ray’s PTSD from those sexual encounters and other incidents from his childhood. She said they dropped the ball by failing to explain the devastation he felt when his mother forced him to care for her in Chicago rather than letting him live with more nurturing relatives in Georgia. And she listed a host of people the trial team failed to interview about Ray’s redeeming qualities. Among them were his former high schol friends, teachers and a security guard at Aurora’s Overland High School who say Ray stood out as a caring, empathetic, and engaged student badly in need of a father figure. Mulligan said the trial team also failed to interview corrections officers, a former cellmate, and even an avowed white supremacist Ray befriended in custody – all of whom say Ray is a model prisoner.
Mulligan pointed in particular to the trial team’s failure to investigate the prosecution’s star witness – LaToya Sailor Ray, his wife who is several years his senior. Ray quit high school and became a drug dealer to support her and her young son, Tyreese, at a level she demanded, Mulligan told the court. Sailor Ray started cooperating with prosecutors after Ray was jailed and their money had run out. As part of their witness protection program, prosecutors gave her a car and paid her living expenses.
Ray’s post-conviction team is arguing that prosecutors committed misconduct partly by failing to disclose that financial arrangement, which may have given Sailor Ray a financial incentive to testify against her husband. Mulligan also pointed out that jurors never learned of the value Ray has in some people’s lives, including Sailor Ray’s son, Tyreese, who has written and spoken to Ray. Had jurors heard audiotapes of their phone conversations, they would have heard the tenderness between stepfather and stepson.
“This would have mattered to at least one juror? Yes.” Mulligan said. “Did anyone in this case function as an adequate mitigation specialist? Absolutely not.”
In closing arguments Feb. 28, prosecutors defended giving witnesses like Sailor Ray financial benefits because Marshall-Fields’ killing was a witness assassination and Sailor Ray had to be relocated for her protection. They’ve said they weren’t obligated to disclose details of their witness protection program to Ray’s defense. The prosecution is saving its closing arguments about Ray’s ineffective legal assistance claim until after Lindecrantz testifies.
State Sen. Rhonda Fields, D-Aurora, is Marshall-Fields mother. She says she has “watched every single court proceeding” for Ray and his co-defendant, Sir Mario Owens over the past 12 years. And she says Ray’s claims about inadequate legal representation have no merit.
“I never saw any incompetence by either the defense or prosecution. I saw both sides working very diligently to seek justice on behalf of my son and his fiancée,” she said. “Every time, we’ve seen rulings come down on the side of the prosecution against the people who robbed my son of his life.”
Judge Amico has set a hearing for Lindecrantz to testify Wednesday morning.
It’s unclear what Lindecrantz will say on the witness stand. That prosecutors called her to testify and Ray’s post-conviction team didn’t suggests that she believes she did a thorough job as his investigator. But the fact that Ray’s lawyers have said her refusal to testify was hurting their case suggests that she wasn’t as thorough as she could have been.
Friction between an original defense team and post-conviction lawyers is common in post-conviction proceedings, especially if a client claims he or she had inadequate legal representation at trial. But members of the criminal defense community say tensions are especially high in Ray’s case.
During more than a year of post-conviction court proceedings, Amico’s courtroom has been virtually empty of spectators other than victim advocates supporting Fields on the prosecution’s side and Ray’s family on the other. It was packed during the Feb. 26 and 28 hearings by Lindecrantz’s friends, fellow Mennonites, and reporters drawn to the story of a elderly white conscientious objector martyring herself for her religious convictions to spare the life of her former client. Once the focus of the proceedings switched from Lindecrantz’s refusal to testify to Ray’s claims seeking to overturn his death sentence, the crowd left the courtroom.
Sources close to Ray’s case bristled that news coverage of her religious beliefs and the hardships she was facing in jail missed the bigger story – that Ray’s life is at stake in a case in which prosecutors’ conduct and the original defense team’s competence are in question. They feared that Lindecrantz’s refusal to testify had signaled to the judge that she will defend the pre-trial investigation rather than say that she and her colleagues messed up. And they made it known to Lindecrantz, through her lawyer, Mari Newman, that what was being called the “Greta Sideshow” was hurtful to Ray and his case.
On Lindecrantz’s behalf, Newman petitioned to have her client testify as a “court witness” – meaning as a witness neither for the prosecution or defense. But the Colorado Court of Appeals rejected it.
On Saturday, Newman cited to Judge Amico what she called a “dramatic change in circumstance” that caused Lindecrantz to change her mind about testifying.
“Having learned that Mr. Ray’s current counsel believes that not obtaining her testimony will adversely affect Mr. Ray’s likelihood of securing a legal remedy to spare his life, Ms. Lindecrantz must take them at their word and reevaluate her position,” she wrote. Newman emphasized to The Independent that Lindecrantz’s agreement to take the stand stems “100 percent from her deeply held religious conviction that she must honor human life – and that human life includes not only Robert Ray, but also Vivian Wolfe and Javad Marshall-Fields,” and from no other factor.
George Brauchler, the 18th Judicial District Attorney whose office is prosecuting the case, has been saying that Lindecrantz’s testimony is imperative to preserving Ray’s death sentence. He has criticized Lindecrantz for refusing to testify about investigative work that taxpayers have funded. He and other critics have said it shouldn’t come as a surprise to Lindecrantz that working on death penalty cases may require having to testify for either the defense or prosecution. He has characterized her refusal to take the stand as a stunt to galvanize public opposition to capital punishment.
Brauchler, a Republican, is seeking his party’s nomination for state Attorney General after having bowed out of the governor’s race late last year. He has used his record as Colorado’s fiercest death penalty proponent to boost his political career.
Ray’s team won’t talk. It is citing Judge Amico’s directive that both sides refrain from speaking publicly about Ray’s case, and saying it would be a legal and ethical violation to do so.
Said Mulligan: “We’re not making any comment based on the court’s gag order as well as the Colorado Rules of Professional Conduct.”