Former Prosecutors Censured in Tim Masters Case

September 10 2008, 2:06 PM

The Colorado Supreme Court's attorney regulatory office yesterday censured two judges, Terry Gilmore and Jolene Blair, for their negligence while serving as prosecutors during Tim Masters' trial for the murder of Peggy Hettricks. Masters' conviction was reversed earlier this year and he was released from prison after serving 10 years. Via The Denver Post:

The public admonishment sanctioned the former prosecutors' failure to turn over evidence that would have benefited Masters' defense during a trial that led to his conviction for Peggy Hettrick's 1987 murder in Fort Collins. Masters was freed from prison earlier this year when advanced DNA analysis found no trace of him on Hettrick's clothes.

You can read the censure document here. (pdf)

Judges Gilmore and Blair agreed to the censure, which found them negligent in their duty to discover and turn over information the defense was entitled to receive before trial. The censure does not find the former prosecutors intentionally withheld evidence from the defense. This is important because it highlights the obligation of prosecutors to reach out to police, investigators, and others working with them to determine whether additional information or reports exist that should be turned over. The prosecutor can't rely on "I didn't know there was such a report" if he or she failed to make appropriate inquiries. In this case, the former prosecutors' negligence contributed to Tim Masters spending 10 years in prison for a crime he did not commit. Nothing can adequately repay him for that. But the rule has now been broadcast and every prosecutor will now remember that discovery obligations don't end with what's in their file or whatever the police decide to turn over--and that there is a penalty for failure to exercise their responsibility. As the Supreme Court stated in its press release announcing the censure:

[T]he public censure of the two former prosecutors will underscore the important message to all prosecutors that it is the obligation of the prosecutors, not the police, to ensure that all material obtained by the police in the course of an investigation is provided to the defense as required by the criminal rules.

Masters' lawyer, David Wymore, told The Denver Post there should have been a greater sanction imposed against the judges.

"This is a slap on the wrist. ... This is a form of punishment, but it doesn't go far enough. The fact that they're saying they didn't know about this evidence in their own investigation is mind-numbing. This man spent 10 years in prison, and the prosecutors who put him there aren't even being sentenced to an ethics class?"

Masters also expressed his disappointment:

"I guess they'll be back on the bench tomorrow."

I hope Masters can find some consolation in the result--a firm statement that prosecutors have a duty to seek out information that might assist the accused--if not in the punishment meted out.

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