Denver DA's use of trial-level standards at case intake may block sex assault cases from prosecution

Denver DA standards for prosecution questioned

DENVER - The Denver District Attorney’s apparently uses a much tougher standard than many other Colorado prosecutors when deciding whether to file criminal charges -- a potential reason for the office refusing a large number of cases, a CALL7 Investigation found.

Denver DA Mitch Morrissey refuses to prosecute 36 percent of all felony cases presented by police, and 71 percent of felony sexual assaults – a refusal rate that is much higher than other judicial districts in Colorado and across the country.

"My fear is that meritorious cases are falling through the cracks," University of Denver law professor and former New York City prosecutor Kris Miccio said. "There may be complainants out there who had their case, needed their day in court, and they didn't get it."

The CALL7 Investigators first reported the statistics two weeks ago, after a five month investigation into the Denver District Attorney’s prosecution rates and reasons for accepting or declining cases.

In that story, we were unable to ascertain the reason why the prosecution rates were proportionately lower in Denver. But Miccio says the office may be refusing cases that aren’t a slam dunk.

Miccio was interviewed for our initial investigation but was contacted by he Denver DA’s spokeswoman Lynn Kimbrough in an attempt to discredit the story and the statistics before the story was aired.

Miccio was surprised when Kimbrough discussed the Denver DA office’s filing standard.

"In the conversation, I learned that at the front end, at the intake stage, the District Attorney's office doesn't use 'reasonable likelihood of success,' but 'beyond a reasonable doubt,' which is a trial standard," Miccio said.  "It's a very, very high standard, as it should be -- for the trial."

"Proof beyond a reasonable doubt" is considered a trial standard because it's the standard juries are instructed to use when determining the guilt or innocence of a criminal defendant at trial. Miccio says DAs should use the lower standard of "likelihood of success" in deciding whether or not to file charges. If they don't, Miccio says, too many cases could be dropped without charges being filed or the chance to reach a jury.

"My question to the DA is, why are you putting the reasonable doubt standard at the front-end, before you have most of the information you need?" Miccio said. "Beyond a reasonable doubt standard is what the jury is instructed on after they’re heard all of the evidence."  

In discussions and emails with the CALL7 Investigators, DA officials seem to use both standards interchangeably.

DA Spokeswoman Lynn Kimbrough wrote in an email to CALL7 that included, "The standard of proof beyond a reasonable doubt has been the filing standard of the Denver District Attorney’s Office for pretty much forever."

In a recent meeting with the CALL7 Investigators – recorded by the DA and obtained by 7NEWS through the Colorado Open Records Act -- Morrissey says reasonable doubt is the standard too, and then changes his story.

"It's done on a case by case analysis, to determine if we can prove the charges, whatever charges they are, beyond a reasonable doubt, with a reasonable likelihood of conviction," Morrissey said.

Morrissey later says his prosecutors follow the standard recommended by the National District Attorney's Association, which is "reasonable likelihood of success." That is the standard other Colorado District Attorneys use, like Jefferson County DA Peter Weir.

"It's not proof beyond a reasonable doubt, which is our ultimate standard at trial. But at the initial screening of the case, it's a reasonable likelihood of success at trial," Weir said.

A former assistant prosecutor we talked to, but who declined to have the interview recorded, said it is appropriate to use the reasonable doubt standard to avoid unnecessarily charging someone with a crime you can’t prove. Other former prosecutors we spoke with said using reasonable doubt as a filing standard is unheard of.

But Miccio, who prosecuted sex crimes in New York City, says using the reasonable doubt standard so early on in the process may result in offenders going free and leave victims without justice.

Michelle says that’s what happened in her case. Two years ago, she says she was raped by two boys she thought were her friends. She was just 16 years old at the time.

"I was crying, and at one point, one of them said 'Maybe we should stop. I feel like we're raping her.' And the other guy just responded 'No, she's just a virgin so she's emotional. She'll be fine.'" Michelle said.

The Denver DA declined to prosecute her case.

"I had evidence, I had witnesses, and to know that something like that's dropped, to know that that's happening to so many other people is just horrible," she said.

Morrissey said the way the office reviews cases is appropriate.

"We are not going to lower the ethical standards in this office because you have some statistics that I haven't seen," Morrissey said in the meeting his office taped.  

Morrissey again refused to sit down with the CALL7 Investigators for an interview about his filing standards. Instead, his spokeswoman issued a statement:

"The filing standard of having a 'reasonable likelihood of conviction' to file a case is reached when we believe that we can prove the charge(s) to a jury, beyond a reasonable doubt.  These are not mutually exclusive..."

Miccio says using the higher standard may explain the low prosecution rate.

"I'm sure that the people of the State of Colorado and Denver County would like to know why this statistic is the way it is. What is your process in terms of intake?" Miccio said.  

Here is the full statement from Denver District Attorney Spokeswoman Lynn Kimbrough regarding filing standards:

"The filing standard of having a 'reasonable likelihood of conviction' to file a case is reached when we believe that we can prove the charge(s) to a jury, beyond a reasonable doubt.  These are not mutually exclusive standards, but rather both reflect the same filing standard we follow, which is based on national standards.

I believe I sent you the National District Attorney’s Association standards, which say a prosecutor should file charges that he or she believes adequately encompass the accused's criminal activity and which he or she reasonably believes can be substantiated by admissible evidence at trial, and which should take into account the probability of conviction. There are also long established national standards set by the American Bar Association, in particular Standard 3-3.9, Discretion in the Charging Decision, a prosecutor should not institute, cause to be instituted, or permit the continued pendency of criminal charges in the absence of sufficient admissible evidence to support a conviction.  There is also a standard under the Colorado Supreme Court Rule of Professional Conduct 3.8(a), Special Responsibilities of a Prosecutor, which says the prosecutor in a criminal case shall refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause.

I also think it is important to note that the charging decision standards being applied today have been applied going back to at least DA Dale Tooley's tenure as District Attorney, so we have abided by these standards for 40 years and perhaps beyond that."

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If you have a news tip, or follow-up to this story, e-mail Keli Rabon. You can also connect with Keli on Facebook or through Twitter using @KeliRabon.

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