Failed negotiations lead to trials, with mixed success in Colorado’s 14th Judicial District
March 2, 2014
Steamboat Springs — Nine months into his first elected term as district attorney, Brett Barkey put defense attorneys on notice that felony plea deals no longer would be bargains.
His statements came soon after the unexpected departure of Rusty Prindle, who was the head prosecutor for the Routt County office.
"There has been a long tradition of the defense bar being extremely happy with the dispositions they see out of this office," Barkey said in October. "They may not be as happy in the future."
Local defense attorneys took Barkey's comments to mean one thing: With non-negotiable plea offers that mandated years in prison, more cases were going to trial.
That left Steamboat Springs defense attorney Kris Hammond with one question: How many trials had the DA's office actually won?
If the DA's office wanted to take more cases to trial, "the District Attorney's Office may not be happy with the verdicts," Hammond said.
According to data requested by the Steamboat Pilot & Today from the Colorado Judicial Branch, Hammond was right to question the DA's trial success.
The 2013 felony trial conviction rate for the 14th Judicial District, overseen by Barkey and encompassing Routt, Grand and Moffat counties, was 35 percent. Last year's conviction rate was the lowest for the 10-year period going back to 2004.
The analysis by the Colorado Judicial Branch also looked at the conviction rates in Colorado's 21 other judicial districts. In 2013, the 14th Judicial District had the fifth-lowest conviction rate.
The 20th Judicial District, which is Boulder County, had the highest conviction rate, according to the analysis. Out of 48 felony trials, 35 resulted in at least one felony conviction, for a 73 percent conviction rate.
On Feb. 14, Barkey discussed the past year and what goes into the decision to take a case to trial. He said looking at felony trial conviction rates alone is not a good way to measure the success of a DA's office.
"That's an overly simplistic analysis because it doesn't take into account the strengths and weaknesses of particular cases that went to trial," Barkey said. "It doesn't take into account why those cases went to trial. It's just an overly superficial way to look at things, and I just don't think that offers the full discussion."
Barkey said his office will continue to take tough cases to trial, adding that he and his prosecutors are not afraid to lose.
Last year, 26 felony charges were brought to trial, and juries returned verdicts on 10 of them.
"It seems a bit low," former Routt County prosecutor Sandy Horner said. "It seems like they were overcharging. When I was in the DA's office, it was a frequent practice, to be honest with you, and I became uncomfortable with it."
Accusations of overcharging occur when it is thought that an excessive number of charges are filed.
Hammond said the conviction rate also suggests that defendants are being overcharged.
"It's a way to extract a plea out of a defendant, and sometimes it works, and sometimes it doesn't," Hammond said.
Barkey called filing the appropriate charges an art form.
Of the 26 felony charges filed in 2013, four were filed against Steven Torres.
When he charged Torres with three counts of attempted murder and one count of illegally discharging a firearm, Barkey said he truly thought the man was trying to kill people when he shot a gun down a stairwell at a downtown Steamboat Springs bar.
Torres faced the possibility of spending the rest of his life in prison. Neither Barkey nor Routt County Public Defender Sheryl Uhlmann would disclose any plea agreements that were offered leading up to the October trial.
During the trial, Uhlmann argued the gunshot was meant to scare, not kill.
The jury ultimately agreed, and they convicted Torres of the lesser charge of felony menacing and three counts of misdemeanor reckless endangerment. He was sentenced to four years in prison.
Barkey said he thought the case was prosecuted well, but he never has control of what a jury does once the door closes for deliberations.
"Torres was personally disappointing, but I don't take that as a reflection that this office failed in some sense of the word," Barkey said. "I don't believe that."
Another challenging case the DA's office took to trial involved accusations that Stagecoach resident Daveth Young sexually assaulted a 7-year-old boy.
"I believed in that case," Barkey said. "I insisted it go to trial."
The victim testified during the trial, but he did not want to tell jurors details about what prosecutors thought Young did to him.
After 10 hours of deliberations that went late into the night, a mistrial was declared because the jury was unable to return a verdict on any of the three felony charges.
Instead of going back to trial, Young accepted a plea deal offered by Prindle, who prosecuted the case. Young pleaded guilty to a Class 1 misdemeanor and was sentenced to 30 days in jail and five years of sex offender probation. Young failed to comply with the sentence and was sentenced to two years in jail.
Barkey said he was pleased that Young ultimately was held responsible, but Barkey was disappointed that his office initially had to settle for a misdemeanor conviction.
Barkey said sexual assault cases, especially those involving children, are some of the most difficult cases to prosecute. He said the DA's office will not shy away from taking the hard cases to trial just because it could put a dent in their conviction rate.
"That means we didn't hold to account a potential child predator, that we didn't give an opportunity for accountability to that family that suffered a sexual assault just because we were afraid of losing, because I didn't want to take a loss," Barkey said.
"That to me is just wrong. It is, in my opinion, a cowardly approach to this job and this office. … We are going to take tough cases to trial. We already do," Barkey continued. "We've proven it. We're not afraid to lose. That doesn't mean these losses don't sting, that we don't put every bit of our heart and soul in cases that we bring to trial, and that's why those losses sting. If we lose one of those cases, that doesn't mean we're not successful as prosecutors."
Barkey said he does not look at conviction rates or any other numbers for determining the success of his office and its prosecutors.
In addition to an assistant district attorney, the 14th Judicial District office has eight prosecutors — two in Grand County and three each in Routt and Moffat counties.
On average, Barkey said, 95 percent of cases across the country never go to trial and are settled through negotiations. That also is the case in the 14th Judicial District, he said.
Barkey said what he does evaluate is whether his prosecutors are making the best presentation possible at trial and taking the right cases to trial for the right reasons.
"It is in the presentation where I constantly work to improve my own skills, as do my teammates," Barkey said. "It is an art to present a body of evidence in a logical, easy-to-follow way and yet make it compelling. I am very proud of our work in this area, and we will continue to hone our skills."
Some prosecutors do use conviction rates to measure success, and prosecutors sometimes will tout these rates when running for office.
In March 2011, The Denver Post reported on an unconventional bonus program that 18th Judicial District Attorney Carol Chambers used. Prosecutors who had at least a 70 percent felony conviction rate would earn the annual bonus, which on average was $1,100.
The prosecutors had to take on at least five felony trials during the year. Cases that ended in at least one felony conviction were counted as a conviction. Trials that ended in mistrials or were resolved with a plea agreement did not count as a conviction.
"It is hard to find performance standards by which to measure trial attorneys," Chambers told the Post. "This is the standard I think best meets the need to have a performance standard that attorneys know and can be aware of and that does not in any way encourage any outcome in any specific case."
The Post reported other district attorneys in Colorado did not use conviction rates in performance evaluations.
"It's like giving cops a bonus for each ticket they write," said Horner, the former prosecutor who now is a defense attorney based out of Steamboat.
Larry Combs, another Steamboat defense attorney, said conviction rates alone cannot be used to gauge the success of a DA's office.
"There are too many dynamics involved," he said.
Barkey said looking at conviction rates "certainly has a simplicity to it," but it misses the complexity of what DAs do.
"Coming up with a raw number, while appealing, misses the broader challenges that we address in this office," Barkey said.
And Barkey said he never would want his office to have a 100 percent conviction rate.
"A prosecutor that wants a 100 percent conviction rate … he dumps at a heartbeat the close, tough cases," Barkey said.
While there have been some obvious trial losses in 2013, Barkey said there were several successes.
In Moffat County, Leroy Fief stood trial for first-degree murder and felony menacing. The jury returned a verdict of second-degree murder and also found Fief guilty of the menacing charge. He was sentenced to 30 years in prison.
In one of the three Routt County trials held last year, a jury convicted Anthony Tate of cocaine distribution, and he was sentenced to eight years in prison.
Barkey also pointed to the numerous drug cases investigated by the All Crimes Enforcement Team that were resolved before going to trial.
In Routt County, Trevor Rice pleaded guilty to cocaine distribution and was sentenced to five years in prison.
In Moffat County, Shelly Pinnt-Boyer, Robert Boyer and Conny Gillis Mullis each were sentenced to 20 years in prison for distribution of methamphetamine.
"Those are successes," Barkey said.
Beyond a reasonable doubt
It is difficult to measure what it costs to hold a trial. Each one is different.
For prosecutors, costs go up when they have to pay experts and bring in witnesses from out of state. In the Fief case, Fief was ordered to pay more than $2,000 to the DA's office for costs they incurred. With Fief's 30-year prison sentence, Barkey said, it is unlikely the DA's office will recover those costs.
"The dollars don't drive the decision," Barkey said. "They are a factor we have to consider and be cognizant of."
Trials are staffed by a judge, a bailiff, court reporter and deputies who stand guard when defendants are in custody.
The costs to society extend to the 12 jurors and two alternates who may have to take time off from work to fulfill their civic duties.
Horner tells his clients that to prepare for trial and to provide a defense, they should plan on spending $5,000 per day of the trial.
"I think the most expensive thing a lawyer can do for his client is go to trial," Hammond said.
Horner said that if defendants — because of income level — qualify to be represented by the public defender's office, they are more likely to take a case to trial because they do not incur any expense.
In 2013, a majority of the cases in the 14th Judicial District were defended by a public defender or a court-appointed attorney. If an attorney is appointed by a court, the attorney often is paid by the state of Colorado a rate that is lower than what defense attorneys typically would charge.
Hammond was appointed to handle one of the felony cases in Moffat County. His client was a passenger in a car, and she was accused of possession of methamphetamine. Hammond said a residual amount of meth was found in the bag, and his client's defense was that it had been put in her purse by the driver after he was pulled over by police.
The woman was charged with a Class 6 felony, and Hammond said the plea offer extended by the DA's office left no room for negotiations.
"The offer was plead guilty," Hammond said. "I saw the plea. I just didn't see the offer."
During the trial, the driver testified that he had put the bag in the woman's purse, and the woman was acquitted of the felony drug charge.
Barkey said he will continue taking cases to trial when his office has made a plea offer that he and his prosecutors think is appropriate but the defense rejected.
Hammond said the public will have to wait and see whether stiffer plea offers result in more cases going to trial in the future months and years.
"It must be reiterated that in criminal cases, the prosecution's burden of proof is beyond a reasonable doubt," Barkey said. "That is the highest burden in the law. Our defense bar argues it vigorously, and our juries take it very seriously. We would have it no other way."