By Jeff Balke
By Aaron Reiss
By Angelica Leicht
By Dianna Wray
By Aaron Reiss
By Camilo Smith
By Craig Malisow
By Jeff Balke
Another death penalty case could pose problems for Rosenthal. The state Court of Criminal Appeals on July 3 appointed former justice Michael McCormick to determine if Anibal Garcia Rousseau deserves a new trial after 14 years on death row. Rosenthal sat as second chair in that case because it was prosecutor Lorraine Parker's first capital case.
Rousseau was convicted of capital murder on the basis of eyewitness testimony; there was little physical evidence. After the trial, Rousseau's attorneys discovered that the gun prosecutors claimed to be the murder weapon bore no resemblance to the actual murder weapon, according to HPD tests. They claim either the police or the D.A.'s office knew of the discrepancy at trial but kept the evidence hidden.
It was news to Parker.
"I was pretty horrified to learn that the gun that had been recovered and was in the custody of the HPD did not match the eyewitness description," she says. "It's the obligation and the duty of all prosecutors to see that justice is done, not just to get convictions. It's clear to me justice was not done here."
Parker now practices civil law in Colorado and is a fervent death penalty opponent. She says she doesn't know enough about the case to lay blame for what happened.
Attorney Philip Hilder represents Rousseau, and he too doesn't say just who is at fault. "I'm lumping the two [HPD and the D.A.'s office] together -- they may share in the blame or not, but it doesn't matter who. It's just a critical failing to disclose critical evidence I want to get Mr. Rosenthal on the stand to answer some very tough questions as to why this information in 14 years was never communicated."
Rosenthal says he and his office did nothing wrong and passed on to the defense all they knew at the time of the trial.
But some defense attorneys say the case is worrisome because well, because they have doubts about it that they wouldn't have with Holmes. Many echo Dan Cogdell's concerns: "Johnny Holmes was more old-school, he was more black-and-white, right's-right-and-wrong's-wrong," he says. "You don't get that same sense from Chuck."
Others disagree. "Chuck always struck me as having a straight moral compass," says defense attorney Chris Downey, who worked under Rosenthal until 1998. "That's why I'm so surprised at what's going on with the DNA lab."
The DNA lab mess is surprising a lot of people who know Rosenthal. His refusal to recuse himself from the investigation, or to get some indictments, has puzzled others. "I expected he would have sought the head of any person found to have testified falsely," Downey says. "When the shit hit the fan, though, we didn't see any indictment. Maybe he hasn't found any wrongdoing yet, I don't know. But even if it's symbolic, you go after it."
McSpadden was one of the judges asking Rosenthal to allow an independent court of inquiry to investigate. He believes Rosenthal's refusal to step aside comes from being new in the job.
"It's like when you're a judge and you get your first motion to recuse," he says. "It's someone basically saying, 'You can't be fair,' and you take it personally. Now when I get them I can't wait to sign It's the newness of the job. Maybe ten years from now he'd handle it differently."
Other judges aren't so forgiving. Although some won't speak on the record, Judge Jan Krocker is willing to go public with her gripes.
"I was disappointed that Mr. Rosenthal represented to me personally -- and to the media -- that his office was presenting evidence about the DNA laboratory to my grand jury," she says. "He had not initiated any such investigation. He misinformed me and he misled the community."
Kent Schaffer is one of many defense attorneys wondering why Rosenthal doesn't recuse himself. "Chuck is going to hurt himself trying to maintain control of the investigation," he says. "It could be that the D.A.'s office has done nothing wrong, and they didn't know what was going on with HPD, but probably no one is going to believe that if it's the D.A. running the investigation."
Rosenthal says he won't bow to political pressure to step aside in the probe. "It's my job to do it," he says. "It's my constitutional duty to follow through with it. If I had been a fact witness or someone in my office had committed a crime, I would be duty-bound to step aside, but since neither of those eventualities happened, it's my job. I took an oath to uphold the law, and by God I'm going to do it."
He says an outside investigator "wouldn't have any idea where to start looking" for cases that might be tainted by bad DNA evidence.
Isn't there at least the appearance of conflict of the D.A.'s office investigating cases it prosecuted? "Yeah, if you didn't have people of integrity going back to review these things," he says. "But we try to err on the side of caution."
Indictments are still a possibility, he says.