A dispute over evidence in a Denver murder case is continuing even after the defendant pleaded guilty in a “sweetheart” plea deal — an unusual situation unfolding amid broader concerns about the discovery process both in the Denver District Attorney’s Office and statewide.
Defense attorneys James Castle and Laura Jensen accused the Denver District Attorney’s Office of being “out of control” and a “rogue office that operates with impunity in regards to their discovery violations” in a 20-page post-conviction relief petition filed Feb. 4 on behalf of their client, 34-year-old Rayvell Powell.
Matt Jablow, a spokesman for the DA’s office, called the petition’s language “overheated and divorced from reality.”
The scathing and procedurally unusual petition comes after a statewide task force in December found Colorado’s discovery process — the system through which prosecutors share evidence with defense attorneys in criminal cases — is in need of a complete overhaul.
Denver District Attorney John Walsh in August vowed to better his office’s practices after judges tossed a handful of cases over discovery violations, and Denver prosecutors last fall found discovery problems with another 750 cases.
Attorneys who were not involved in Powell’s case but who reviewed his petition at JS’s request suggested Powell’s effort to pursue evidence he alleges prosecutors withheld, sanctions and a special master post-conviction is creative yet unlikely to succeed, but said the case nevertheless amplifies the ongoing concerns about discovery in Denver criminal cases.
“The allegations here are not just about one case — they point to a potential pattern of non-disclosure that, if substantiated, would undermine confidence in the justice system,” said attorney Hollynd Hoskins.
Castle and Jensen both declined to comment for this story.
A 2021 killing
The dispute began after Denver prosecutors last year charged Powell with first-degree murder in the August 2021 killing of 41-year-old Gregory Hopkins outside Coors Field.
Investigators alleged in an arrest affidavit that Powell arranged for one man to bring a gun to a second man, who then shot and killed Hopkins. The two other men were each convicted of murder.
Powell was initially arrested and charged in 2021; prosecutors dropped the charges later that year, citing insufficient evidence. Powell was re-charged with first-degree murder in May in a case handled by Chief Deputy District Attorney Courtney Johnston, court filings show.
Jensen and Castle initially received about 1,700 pages and 525 gigabytes of discovery material, but learned that at least one of Powell’s codefendants had received more than 10,000 pages of discovery material, according to the post-conviction relief petition.
The first batch of discovery omitted, among other material, information that one prosecution witness was recommended for a U visa, a special visa offered to crime victims who help law enforcement, the petition alleges.
The defense attorneys in late November raised the issue of missing discovery with prosecutors, who provided nearly 10,000 pages of additional discovery on Dec. 2.
The next day, the prosecution offered Powell a deal in which he could plead guilty to reckless manslaughter — a lower-level felony that carries a maximum six-year prison sentence — and the first-degree murder charge, which carries life in prison, would be dismissed.
The two sides eventually agreed to cap the potential prison sentence at three years as part of the deal, which Powell accepted, according to the petition. Powell pleaded guilty Dec. 19 and, with credit for time served, will be eligible for parole in June, according to the Colorado Department of Corrections.
Powell pleaded guilty despite knowing that he had not received all the discovery in the case, according to the petition, which seeks numerous materials that defense attorneys believe were missing even from the expanded discovery.
Jensen and Castle argue that sanctions and a special master to investigate the claims of discovery violations and the policies of the DA’s office are necessary for fairness and transparency.
“…Because otherwise prosecutors can withhold evidence, and then extract pleas and sentences of such a nature that a defendant would find difficult to refuse, without evidence seeing the light of day,” their petition reads. “A process which turns a blind eye to a pattern of non-disclosure followed by dispositions without post-conviction remedies or sanctions, would only incentivize prosecutorial misconduct.”
Typically, petitions for post-conviction relief face an uphill battle — in part because the court system values the finality of a conviction, especially one arrived at through a plea agreement, said Stan Garnett, former Boulder County district attorney.
Discovery disputes usually must be litigated before a conviction is entered, he said, or, if post-conviction, through a separate federal civil rights lawsuit.
“I would be surprised if a trial court judge granted relief of discovery on a case where a plea has already been entered,” he said. “…I think courts respond to motions like this with kind of an awareness of, ‘Look, the system is not perfect, sometimes things are missed, but if you want to raise an issue, you need to do it at the right time.’”
Jablow, the spokesman for the Denver DA’s office, declined to comment on the allegations in Powell’s petition except to say that prosecutors “strongly disagree with many of the assertions.”
“The Denver DA’s Office is committed to complying with all its discovery obligations, and we have taken intensive, proactive steps over the course of the last year to identify and address any discovery issues,” he said in a statement.
‘Sweetheart’ deal
One issue raised in the petition is whether the district attorney’s office used what Garnett described as a “sweetheart” plea offer to avoid disclosing discovery, said criminal defense attorney Angela Campbell.
“Are we making people offers they can’t refuse so that we can then deny people discovery after the fact?” she asked. “…That is the concern — that we don’t want people hiding behind procedure when they are public officials accountable for their acts and omissions.”
Prosecutors should not be able to withhold discovery as a tool for securing a plea agreement, said Iris Eytan, founder of the Protect Ethical Prosecutors, a nonprofit organization focused on prosecutorial misconduct.
“They hold on to it, they give you a deal — your client goes to prison for three years and maybe he could have been acquitted if he’d known everything,” she said.
Protect Ethical Prosecutors is currently suing the Denver Police Department for failing to turn over correspondence between prosecutors and police about the 750 cases with discovery problems — a list that includes one of Powell’s codefendants.
Still, defendants routinely plead guilty, particularly in low-level cases, without seeing the full discovery, defense attorney and former prosecutor Colin McCallin noted. A defendant with no criminal history who shows up to court on a misdemeanor will likely be offered a deal right off the bat, he said.
“In most of those situations, the defendant has never had a chance to meaningfully view their discovery and figure out whether the prosecution can prove their case — they are just focused on getting out of jail, so they snatch up the deal,” he said, noting that the offer to Powell was “by any standard an insanely good deal.”
“What is going on here is an attempt by the defense to double-dip,” he said. “…I get their point, and I do think the issues they are raising are significant, but to think about it from a public policy perspective, if you waive your rights by pleading guilty, and you say, ‘Well, I’m going to plead guilty and take advantage of this situation,’ it doesn’t seem like we want that person to then reopen their case and contest it based on a discovery violations that might not be material to their case.”
An offer like the one presented to Powell is like “dangling a lottery ticket” in front of him, Eytan said. Powell might have spent more time in jail fighting for discovery on the first-degree murder charges — with a life sentence in play — than he will by pleading guilty to the reckless manslaughter charge and its three-year sentence, she noted.
“A lot of people don’t understand how difficult it is to make a decision like this, and they say, ‘Well, you must have been guilty, because who would plead guilty if you didn’t do it, and he should have just waited to go to trial on the case and let the system play itself out,’” she said. “But what about the system was fair this whole time? What would give him faith to think the system would be fair to him in the end? Nothing.”
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