Colorado DA: Walking Away from Justice

Those of us in the ranks of American prosecution who are drawn to sexual assault cases aren’t there because the work is easy.  Non-stranger sexual assault is notoriously difficult to prosecute.  It’s also remarkably common, and therefore simply can’t be ignored.  If you’re in the business and you give a damn, you take tough cases.  Either that or you head back to Grand Theft Auto.Ken Buck, a DA in Colorado and recently defeated Senatorial candidate, refused to prosecute a case a few years ago that, by all appearances, was the type of case sex crimes prosecutors dream of in terms of evidentiary value.  Buck’s walking away from that case probably didn’t cost him the United States Senate; the race was razor close, and there were myriad other issues and missteps that kept his opponent in the seat Buck vied for.  But it didn’t help.What happened is simple enough to describe:  In 2005, a 21 year-old student of the University of Northern Colorado was sexually assaulted by a former boyfriend in her apartment.  The two had remained in contact, and late one night the victim invited him over, actually telling him how to jimmy a window in order to get in.  But when he got in and crawled into bed with her, he found her highly intoxicated and half-conscious.  In legal terms, she was unable to give consent to sexual contact.  Moreover, what she does remember about the incident was saying “no” to him more than once as he sexually penetrated her with his fingers and penis despite her obvious condition and unwillingness to engage.  After a brief delay, she reported all of this to police in Greeley, where the school is located.At that point, the right things were still happening.  There are plenty of places in this country where authorities would listen to an account like the one the victim gave and do little more than roll their eyes.  She invited him over.  She told him how to jimmy a window to get in.  So she was “too drunk” and said “no” a few times?  Whatever.  Greeley police, though, took the case seriously and set up and recorded what’s called a “pretext phone call” between the victim and the suspect.  The idea, legal in Colorado and many states, is for the victim to make a recorded call to the suspect (unbeknownst to him) and attempt to discuss the incident, hoping for statements that can be used in court.The call was a remarkable success; on it, he clearly admitted knowing that what he did to her was rape- she actually used the word and he agreed with it- and he apologized repeatedly, admitting that he knew she was barely conscious and unwilling to engage sexually.  Sometime later, he was interviewed by detectives and made further admissions: He admitted knowing she was barely conscious when he encountered her.  He admitted that he heard her say “no” to his actions no less than three times.  He acknowledged he had done something wrong, even going as far to as to admit that he attempted to wake her up so he could apologize.Bottom line: The completed detective’s case, when it made it’s way to the Weld County DA’s office, was a prosecutorial gold mine for a Colorado sexual assault charge of some degree.  And that’s where it died.As I’ve stated before in this space, judging another DA’s case from afar is something that shouldn’t be done without a serious disclaimer: I don’t know Buck’s resources, specific laws, legal culture or jury pool.  But again, through the sleepless engine of electronic media, I’ve learned quite a few intimate facts about the case, and most importantly, I’ve heard him speak.  What I heard wasn’t an official statement, though- it was a surreptitiously (but legally) recorded conversation made by the victim when she met with Buck to discuss why the case wasn’t being prosecuted.  Assuming the transcript is accurate, what Buck said to this young woman was legally inaccurate, needlessly defeatist, and suspiciously manipulative.Let’s start with Legally Inaccurate:  Buck, like so many prosecutors before him, hid behind the canard of “ethical responsibility” by telling the victim the case needed “an expectation of proof beyond a reasonable doubt to a jury.”  This is simply false, and was used in the same way by Georgia DA Fred Bright when he decided the Ben Roethlisberger case earlier this year.  As I stated while discussing that case, the National District Attorneys Association Standards for Prosecutorial Ethics require that a prosecutor bring “only those charges which he reasonably believes can be substantiated by admissible evidence at trial." Mr. Buck had more than enough.Then there’s Needlessly Defeatist:  Buck tells the victim twice that he had “never met a prosecutor who would” conceivably take the case to trial.  If so, he must run in a very small circle of prosecutors.  I have never practiced in Colorado but I’ve trained with several Colorado DA’s (including the out-going governor Bill Ritter) I'd bet would take this case without hesitation.  A phenomenal and nationally renowned advocate and sexual violence expert named Anne Munch also makes her home in Colorado.  If Buck wanted help proving this case, he had no shortage of resources.Finally there’s Suspiciously Manipulative:  The victim had been a rape crisis advocate, which was part of the reason she pushed harder for an explanation.  During their conversation, when she presses Buck on his decision, he goes from strangely obtuse to subtly threatening.  He suggests that her invitation to the suspect was clearly about sex, even though sex was never mentioned, as if no other reason could have existed for it.  He then crudely rebuffs her point that, regardless of what could be inferred from the invitation, she and he BOTH acknowledged that she said “no” and was in and out of consciousness.  To follow the argument is to see Buck clearly avoiding the case regardless of any reasonable analysis to the alternative.  Then, when the victim suggests she might bring a motion to compel prosecution (a court order that would require Buck to take the case), it gets uglier.  Buck says that, if she brings such a motion, all of the facts will become public, including ones that suggest she has a motive to lie, which Buck appears to have considered himself (the two became pregnant over a year before and had a miscarriage- how Buck believes this would inspire a woman to level a false rape charge against the father she still keeps in touch with over 18 months later is bizarre, but apparent).  He basically warns her that challenging his decision will result in embarrassment and exposure, somehow shedding light on things she obviously should feel ashamed of.In Buck’s defense, he apparently undertook efforts with the local rape crisis center after this case to learn how to better serve victims of sexual violence.  Whether they stuck or not is beyond the scope of this post, as is how the case reflects on Buck’s views on women generally (those views were speculated upon frequently during the campaign).   I’m not going there.  But what is clear is that Ken Buck refused to prosecute a sexual assault case that was orders of magnitude more promising than most encountered in this business, and that his reasons for not doing so were badly expressed at very least to a concerned victim of crime.  I hope he learned something from it.  I doubt seriously the perpetrator he failed to hold responsible learned anything.