With growing media coverage of the “new breed” of prosecutors being elected around the country, it is important to remember that those in positions of great power almost always refuse to relinquish that power in favor of a new vision. A vast number of the country’s prosecutors fit an old mold. The old guard erects barriers to transparency, wastes precious resources to pursue the death penalty, fights to win convictions at all costs (often at the expense of justice), and treats aggressive prosecution as the only hammer with which to hit the nails of crime. Unfortunately, it is way too soon to call District Attorneys who embrace ideas like these dinosaurs. George Brauchler, the District Attorney for the 18th Judicial District of Colorado (representing Arapahoe, Douglas, Elbert, and Lincoln counties), provides an excellent case study.
One of the most telling stories about Brauchler comes from a capital case originally prosecuted by his (controversial and similarly old-school) predecessor, Carol Chambers. Last year, a post-conviction decision denying defendant Sir Mario Owens relief from his death sentence raised serious questions about the DA’s failure to disclose exculpatory evidence. Not only was Owens tried in “an atmosphere of exceptionally stringent security,” but the appellate and post-conviction proceedings were also shrouded in secrecy. After that ruling, a local paper, The Colorado Independent, sought to uncover the actual documentary evidence proving the prosecution’s bad behavior. There is and should have been no question that the public has a right to access this information.
Nonetheless, Brauchler and his crew have fought vigorously to keep the documents under wraps. More disconcertingly, they have also managed to keep the litigation about the misconduct from public view. That’s right: Brauchler requested that his pleadings and the newspaper’s pleadings be kept under seal during the lawsuit. (Earlier this year, the Colorado Supreme Court ordered the trial court judge to justify his decision granting the DA’s request.) All of this because the DA wants to hinder the Independent’s effort to pursue information clearly in the public interest. In its words, “As we’ve long reported, the pattern in the 18th Judicial District of suppressing key evidence raises serious questions about its ethical fitness to prosecute crimes, especially death penalty cases.”
The public-interest implications go further than that. Brauchler’s aggressive anti-transparency litigation strategy raises its own questions about his approach to this job, and the approach he may take in the even more powerful role he covets. Here again is the Independent:
But Brauchler’s efforts to shroud that misconduct in secrecy bring up new concerns about his fitness to become Attorney General, the office he’s seeking after quitting the governor’s race when Republican AG Cynthia Coffman announced her candidacy last month. Brauchler, also a Republican, is trying to manipulate the court system to suppress documents that shed critical light on him, his record as DA, and the colleagues he dispatched – for millions of tax dollars – to secure a death sentence at all costs. That may not bode well for a candidate seeking election as the state’s top law enforcement official.
[I]n Brauchler-world, transparency doesn’t come so easily when it pertains to that office’s misconduct. He has created a shell game of documents, layer upon layer of secrecy that precludes an honest assessment of his record in a case that matters most because a man’s life is at stake.
Unrelenting Zeal for Wasteful Death Penalty Prosecutions
While the Owens disclosure disaster originated with his predecessor, Brauchler’s conduct in that case remains consistent with that of Chambers. And, her questionable and expensive desire to obtain capital convictions is another penchant Brauchler shares with her.
Consider, for example, the failed capital prosecution against Edward Montour. Despite vigorous efforts Brauchler made to obtain a death verdict—over the objections of the victim’s father—the case fell to pieces in Brauchler’s hands 10 years after it began. He eventually capitulated and resolved the case with a plea that resulted in the life-without-parole sentence that the defendant had offered to accept years earlier. One of the jurors in that case lodged heavy criticism against the DA, as we covered here. Here is a key excerpt:
[The juror] Becker’s criticisms . . . pick up on the troubling theme of prosecutors who use their power to win at all costs rather than pursuing justice. . . .
Becker finishes his letter with a call for public accountability of decisions made by prosecutors to pursue charges and spend taxpayers money:
“The people of Colorado need to know how our elected officials are spending our money and that [to those officials] convictions and an ‘eye for an eye’ are more important than seeking justice and the truth.”
The Montour case revealed not only Brauchler’s thirst to obtain a symbolic victory in a capital case, but also a willingness to sideline a victim’s right to testify in the penalty phase. While prosecutors regularly call on victim’s family members who support the death penalty to testify if they get to the sentencing phase of a capital prosecution, they sometimes disregard those family members who believe death is not an appropriate outcome. Bob Autobee, the father of the prison guard Eric Autobee whom Montour killed, publicly opposed a death sentence. Yet, Brauchler sought to prevent him from testifying about his view.
The most notable death-seeking effort Brauchler made was in the case against Aurora theater shooter, James Holmes. He famously fell short of that goal; the jury sentenced Holmes to a life sentence. While the case brought him to the national stage—and his insistence on seeking the death penalty apparently paid some political dividends in the Republican establishment—he expended massive public resources to accomplish the same life sentence that Holmes offered to accept well before the trial.
Colorado’s death penalty past and present are disturbing. At present, the three men on death row were prosecuted in the 18th Judicial District, specifically in Arapahoe County. All three are African-American. (In a county with in which African-Americans represent only 11.2% of the population.) None of this seems to trouble Brauchler. In fact, when the Denver Law Review invited participants in the Holmes trial to write about the case, Brauchler took the opportunity to lob criticisms on prior empirical studies of the state’s death penalty. In his article, co-authored by his chief deputy Rich Orman, he refers to the suggestion that race plays a role in Colorado’s death penalty as “outrageous.” Two highly-respected academics that Brauchler took aim at responded to the piece, revealing how it profoundly mischaracterized their work.
Winning at the Cost of Fairness and Integrity
The Owens, Montour, and Holmes cases all share a common thread; the prosecution’s push to obtain a conviction came at the cost of fairness and integrity.
Here, we described the DA’s approach in Montour:
While Brauchler’s behavior is not an example of prosecutorial misconduct, the overreaching involved in his attempts to silence the victim’s family’s wishes in this case illustrates the win-at-all-costs mentality that gives rise to prosecutorial misconduct in other instances.
Moreover, the disclosure issues in Owens were substantial and troubling. The Independent provided an overview of some of the evidence the prosecution withheld (this is the information Brauchler continues to shield from public scrutiny):
Among the charges upon which the appeal was based is the office’s failure to disclose thousands of dollars in payments it made to informant witnesses. One of those witnesses was promised and later given a district attorney’s office car. Some were given gift cards for local businesses. One received $3,400 in benefits, including cash for Christmas presents in the months prior to testifying on behalf of the prosecution.
And, while Brauchler has been irritated with the idea that he bears responsibility for his predecessor’s misconduct, the misconduct continued on his watch.
Most of the claims in Owens’ appeal applied to decisions made before Brauchler won office in 2012 . . . . [yet] Brauchler decided to keep the same lead prosecutors on the case, and, under his watch, the office continued a pattern of not disclosing evidence. In February 2015, more than two years after he took over, one of his prosecutors disclosed that there was a set of secret “witness protection files” that, even at that point, hadn’t been given to the defense. The judge at that time, Gerald Rafferty, ordered the DAs to turn over hundreds of pages of documents, which revealed even more payments the prosecutors Brauchler kept on the case made to prosecution witnesses.
A similar dynamic appears to be at play in the case of David Bueno, a case we have covered before. In that capitally-charged prosecution, the trial court granted the defendant new trial because of Brady violations committed while Chambers was in office. The case was in the news again this year, as the Colorado Supreme Court affirmed the decision despite Brauchler’s efforts to have it overturned. The Court’s opinion reveals that the State deployed some dubious arguments about Brady, including the meritless claim that the defense attorneys could and should have found the suppressed evidence through due diligence. The Court had none of it. Though he’d like to distance himself from the Bueno misconduct as well, a defense lawyer persuasively points out that “Brauchler has vigorously defended the actions of Chambers’s henchmen.”
In the prosecution of Holmes, Brauchler posted a tweet in the midst of trial—while a witness was on the stand—contrary to the judge’s order about social media. Though Brauchler apologized to the judge (claiming that he meant to send a text message rather than a tweet), his conduct had repercussions. When the judge later dismissed three jurors in the middle of the trial, Brauchler’s tweet played a central role. One juror heard about news coverage involving the tweet, and raised it with other jurors during breaks in the proceedings. While this debacle appears to be a less calculated move than the explicit litigation strategy his office has adopted in cases of prosecutorial misconduct, it should be noted that the message was actually about the jury: “I agree on the video. I hope the jury thinks so too.”
George Brauchler is a poster boy of the “tough-on-crime” mentality; the prosecutorial approach that typifies our nation’s mass incarceration problem. While he touts some diversion programs and says that not all low-level offenders deserve jail time, his actions in the cases described above tell a more salient story about how he deploys prosecutorial resources and how he deals with constitutional ethical issues.
One of his supporters, the chair of the Republican Attorneys General Association, recently said: “George Brauchler is a tough-on-crime prosecutor . . . . George is supported by sheriffs and law enforcement leaders all across Colorado. George Brauchler . . . will defend the rule of law and protect Coloradans.” While he pursues higher office, it is worth asking some basic questions. Is Brady the rule of law? Do prosecutors have a duty to shepherd taxpayer dollars responsibly? And, what obligation do District Attorneys have to ensure transparency, particularly when it implicates individual constitutional rights? These questions deserve answers. After all, Brauchler claims to revere the rule of law. As they teach first-year law students in legal writing courses: show, don’t tell.