Colorado judges as prosecutors: How far is too far?

In Colorado, judges don’t simply have the power to send people to prison.

In rare circumstances, they can also decide whether a person should be charged as a criminal -- a rarely invoked authority upon which two cases now hinge.

Under a 19th century state law, obscure until recently, two judges have been asked to decide whether four men should be tried in rape and murder cases.

The first case involves the 2000 alleged sexual assault of a Denver-area teenager, who initially did not want to pursue charges. When Julie Stene wanted to go to court several years later, the district attorney did not.


Stene won a startling victory against Arapahoe County Dist. Atty. Carol Chambers in May when a judge ordered a special prosecutor appointed and charges filed against the two suspected assailants. The judge has since softened that stance, ordering a new prosecutor to investigate and decide whether to press charges.

In a second case, in rural Chaffee County, a sheriff and coroner are seeking to use the same law to force Dist. Atty. Thom LeDoux to try a murder case that he believes is not provable.

Both cases have stirred debate over prosecutorial power and prompted a challenge of the law’s constitutionality.

“A judge should have no business doing a prosecutor’s job,” said Iris Eytan, who represents Riley McMurdo, one of the two men accused of assaulting Stene.


Stene’s attorney, Baine Kerr, counters: “If the prospect of judicial review is something that leads to better decisions and more justice, then I feel good about it.”

A handful of states have laws like the Colorado statute. Wyoming had such a law until the 1980s, when the state Supreme Court struck it down, saying it violated the state constitution’s principle of separation of powers, said Ted Lauer, professor emeritus of law at the University of Wyoming.

But an important difference separates the Wyoming and Colorado laws, said Chaffee County Atty. Jennifer Davis, who represents the coroner and sheriff. The Wyoming law “allowed a judge to substitute his judgment for that of the prosecutor’s,” Davis wrote in a legal brief. In Colorado, a judge must find that the prosecutor abused his power in order to take over.

Colorado judges have rarely exercised such powers. In Canon City, a judge ordered a prosecution in a homicide case more than 20 years ago, said LeDoux, who now faces the prospect of a similar order.

In the Arapahoe County rape case, Kerr, Stene’s attorney, said he had never heard of the statute until he began digging for a way to spur action in Stene’s now 9-year-old case.

In June 2000, Stene -- who has agreed to the use of her name -- drank too much at a high school graduation party. Two classmates, McMurdo and Clyde Surrell, accompanied her home. When she awoke, muddy and sore, Stene suspected that she had been assaulted and called police.

Surrell first denied sexual contact with her, but when DNA samples taken from Stene matched his profile, he told police the two had consensual sex. McMurdo has maintained that she also had sex with him willingly. (McMurdo declined to comment through his attorney, and Surrell could not be located for comment.)

Stene, whose father was dying at the time, decided that she wasn’t prepared emotionally for a trial and told prosecutors that she didn’t want to proceed.


Years later, a scandal erupted at the University of Colorado, when the football program faced allegations that it used alcohol and sex to lure prospective players to the team. Several alleged sexual assaults were tied to recruits and players, including Surrell, in a lawsuit by two women who said they’d been gang-raped at a party.

Surrell pleaded guilty to providing alcohol and marijuana to recruits, but no sexual assault charges were filed. The university settled the suit for nearly $3 million.

“I thought, ‘Oh God, if he’s involved I’m going to feel really, really bad because I could have pressed charges against him and maybe this wouldn’t have happened,’ ” Stene, now 27, recently told the Associated Press. (She has declined interviews since a special prosecutor was named.)

Stene told prosecutors she wanted to press charges. But a prosecutor said that the office didn’t want to appear to be “jumping on the CU bandwagon,” according to Stene, her mother and a detective at the meeting.

“There was no mention at the meeting about the strength or sufficiency of the evidence in support of her claims,” wrote District Judge Carlos Samour, who initially ordered the prosecution of the case.

Prosecutors say they never believed that the case had a chance of success and noted that another district attorney who reviewed the case agreed.

Judge Samour, however, ruled that the refusal to file charges was “unjustified, arbitrary, capricious and without reasonable cause.”

Samour softened his original stance in July, ordering a Boulder district attorney to investigate and determine whether charges should be filed.


In Chaffee County, a similar fight looms over the 2004 death of Nancy Mason, 47, who died of a broken neck on a fishing trip. The coroner and sheriff initially deemed that Mason had accidentally fallen into a creek, but they later suspected that Mason’s husband and another man had conspired to kill her.

At an inquest convened by the coroner this year, jurors concluded that Mason was murdered. The coroner issued arrest warrants for the two men, but LeDoux, the district attorney, refused to prosecute.

In June, the coroner and sheriff asked a judge to appoint a special prosecutor and compel prosecution. “Mr. LeDoux took a position early on without understanding all the evidence,” said Davis, the Chaffee County attorney.

But LeDoux said he and his deputies had studied the case for five years and didn’t believe there was enough admissible evidence to make a case.

It’s important to have oversight of a district attorney’s decisions, particularly in cases involving a conflict of interest. But he has no such conflict, LeDoux said. “I can understand the want for some oversight,” he said. “But I think it’s being misused here to simply second-guess a discretionary decision by a DA.”

Prosecutors should have some discretion, Davis agreed. “But a prosecutor’s discretion is not unlimited.”


Correll writes for The Times.