Withheld evidence again

Colorado in the dock:

Timothy Masters' current bid for a new trial hinges on the belief that not only could someone else have committed the murder, but that the jury would have agreed if only they'd been given information by the prosecution about other people who defense lawyers believe should have been considered as suspects in Hettrick's death. One of them was a confessed murderer who killed two women the same year Hettrick was murdered by stabbing them in the back; another confessed specifically to killing Hettrick.

While either of these individuals may have cast doubt on Masters' guilt in the eyes of the jury, none offered as compelling -- or complicated -- a case as that of Dr. Richard Hammond, a prominent Fort Collins eye surgeon who was arrested in 1995 for surreptitiously videotaping girls and women in his guest bathroom. Hammond had set up his video equipment to film extreme close-ups of his victims' genitals, and when police searched his house, they found hundreds of videotapes labeled with victims' names.

Some of the victims were family members of those in the District Attorney's office, creating a conflict of interest that required the office to disqualify itself from prosecuting the crime. However, the Hammond case never got to the prosecution stage. After his arrest, Hammond was placed on a 72-hour mental health hold, but shortly after he was released from protective custody, he checked into a Denver hotel and committed suicide.

According to court documents, several police detectives believe Hammond should have been thoroughly investigated for Hettrick's murder. Not only did he have an obvious morbid fascination with female genitalia, he also had the medical skill and biological knowledge to perform the precise and delicate excisions that were performed on Hettrick's body. Finally, Hammond's home, like Masters', overlooked the field where Hettrick's body was discovered.

But rather than expand their investigation of Hammond, police instead closed the case after his suicide -- in fact, investigators didn't even look at all the videotapes to see if Hettrick appeared on one. Instead, they burned the evidence to spare Hammond's victims, including family members of those in the DA's office, further embarrassment and humiliation.

The defense knew nothing of this investigation, or that some members of the police department thought Hammond should have been investigated as a suspect in Hettrick's murder. "The evidence appears extremely strong and incontrovertible that we weren't given the information we needed," said Erik Fischer, who along with Nathan Chambers (who also served on Oklahoma City bomber Tim McVeigh's defense team) represented Masters during his trial and appeals. Fischer adds that he believes Gilmore "perjured himself" during Masters' trial when he told the jury that law enforcement had cleared all other suspects in Hettrick's murder. "I believe ... we should have gotten Hammond as an alternate suspect," he said. "I think Tim would have walked in 10 minutes."

Through a message left by a court assistant, Gilmore declined to comment for this article, citing the ongoing litigation in the Masters case. Blair is out of town and was unavailable to respond to a request for comment. The lead detective in the Masters case, Jim Broderick, also declined to comment in light of the possibility of a new trial.

But Stuart Van Meveren, the district attorney at the time of Masters' trial, said it was up to the judgment of investigators and prosecutors to decide what information to turn over to the defense. "Those decisions were left to the investigating agency," he said, "and if they knew about (the cases), they obviously thought they weren't significant." He said he doesn't believe Gilmore or Blair did anything wrong. "They're both outstanding prosecutors and very ethical individuals," he said, "and that's evident in that they both were appointed to the bench."

Other observers aren't as certain. Daniel Coyne, an associate professor of clinical law at the Chicago-Kent College of Law, said that it's not up to the prosecution to decide what is relevant for the defense. "The case law is really clear that that's not the prosecutor's right to make that determination," he said. "If it's useful to the defendant, then a prudent prosecutor will turn over (the evidence) or make it available for inspection. "If there was a decision to withhold information," Coyne continues, "and the response as to why the information was withheld was that, 'we didn't determine it to be important,' that may call into question the competency of the people who made that decision."

It could also call into question their motives, said Richard Moran, a professor of sociology and criminology at Mount Holyoke College in Massachusetts. Moran recently completed a study of wrongful convictions in death penalty cases. He found that since the death penalty was reinstituted in the late 1970s, 81 of 123 exonerations were the result of what he calls "illegal prosecutions." "When there is a wrongful conviction, if that's what the court ends up deciding, they're not usually the result of good faith efforts," he said, "but the result of a criminal or malicious act committed by one of the members of the court, either the police, the prosecutors or sometimes the judges. "You put a guy in jail for life because you're convinced that he did it. You don't want to share evidence that he might not have done it with the defense because you think he's going to walk, so you misbehave so that he gets convicted."

Gavaldon, the Fort Collins attorney, said it's up to the courts to decide whether information in the Masters case was improperly withheld. But he agrees with Moran. "The criminal justice system is not an arena for hide and seek," Gavaldon said. "What ensures that justice is served is that there is full disclosure on both sides, of all the evidence, so that those issues are decided by a jury on something as serious as a life sentence."

It remains to be seen if Masters will get a new trial, but defense attorneys Maria Liu and David Wymore are gaining momentum in that direction since beginning in 2003 a so-called 35 (c) proceeding, which seeks a post-conviction review of the trial. This is different than the appeals in which matters of evidentiary rules and the introduction of character evidence were reviewed and found to be sound; the hearings now being prepared for will determine if Masters deserves a new trial based on the allegations of prosecutorial misconduct and defense inadequacy.

Since 2003, his attorneys have succeeded in having the entire Eighth Judicial District removed from the case. Likewise, the Larimer County District Attorney's Office has turned the case over to special prosecutors from Adams County after the defense filed a motion in January alleging a conflict of interest. Although a hearing on whether or not to grant a new trial will be held in Fort Collins, the case is now in the hands of the special prosecutors and a retired judge under special contract to hear motions in the case.

Recent allegations point to why the defense doesn't want the locals involved in the case any further. In court documents filed in January, Masters' lawyers claim that evidence from the victim was illegally sent by the District Attorney's office to the CBI lab in Denver, where it was subjected to destructive DNA testing. Masters had been granted a motion allowing his own DNA testing to look for evidence that someone else killed Hettrick, but before the evidence was turned over, the DA's office sent the material to the lab for its own testing. This, Masters' lawyers argue, amounts to theft and destruction of evidence.

The DNA evidence is crucial to the defense's contention that Masters deserves a new trial. In an affidavit filed with the court, forensic investigator Barie Goetz -- who worked for the CBI from 1981 to 2004 and is now employed by Masters' defense team -- outlined an entirely new scenario explaining Hettrick's death that he believes can be proven by DNA. He believes the evidence will show that Hettrick was not murdered or mutilated where her body was found, but stabbed in the back while seated in a car. He said the evidence will also show that her mutilations were surgical in nature and occurred at "a suitably equipped location other than the scene at Landings" and that two people carried her body into the field and left in a vehicle.

If any of this turns out to be true, or even possible in the minds of jurors, it could lead to Masters' acquittal. And an overturned murder conviction could wreak havoc in the Eighth Judicial District and those who tried the case the first time. "If in fact he is innocent or he did not get a fair trial, that obviously reflects badly on the justice system," said Pat Furman, who was a defense attorney for 20 years before his current position as professor of clinical law at the University of Colorado-Boulder. "If there was prosecutorial misconduct, it might rise to the level of something that the (state) Supreme Court looks at in terms of unethical behavior."

Furman said sanctions could involve disbarment, which, in the case of Gilmore and Blair, would mean they could no longer serve as judges since district judges are required to be lawyers. There could also be criminal penalties, he said. Repercussions could also be felt more widely, since an overturned verdict could lead to other appeals on the same grounds in different cases.

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