In a switch of roles, the Denver District Attorney’s office found itself in the defendant’s chair on Friday in Denver District Court to defend why it failed to charge Denver Deputy Sheriff Brady Lovingier with attempted murder, 2nd degree felony assault, and a hate crime for his actions in a Denver courtroom in 2012.
Courtroom observers left a Denver District courtroom in disbelief after Denver District Court Chief Judge Michael Martinez’ ruling on Friday. Judge Martinez announced that he could not compel Denver District Attorney Mitch Morrissey to charge Denver Deputy Brady Lovingier with 2nd degree felony assault in a September 11, 2012 courtroom attack although he admitted that, “There’s no way that you can look at that video and not have grave concerns about the actions that were taken [by Deputy Lovingier]. It appeared to be a deliberate act.” He referred to the courtroom video of the incident that was used as evidence in this case. The clocked ticked in the courtroom as the statute of limitations ran out on Friday.
Those who spoke to KGNU after Friday’s hearing said that the judge’s assessment that the DA should have charged the deputy with instead 3rd degree misdemeanor assault was little relief. The statute of limitations for such a charge ran out 18 months ago. To those who maintain a critical eye on the office it was a “slap in the face,” maintained Alex Landau who himself survived a 2009 Denver police attack that left him with severe injuries. “During his entire term, Mitch Morrissey has failed to prosecute one case of excessive force. There have been Marvin Booker, Alonzo Ashley, Ryan Ronquillo, Joe Valverde, Paul Castaway, Jessica Hernandez all Denver residents who were killed by Denver law enforcement.“ Area groups attempted to recall Morrissey earlier this summer but fell short of the necessary number of signatures required to place the initiative on the ballot. Failure of his office to prosecute excessive force cases went into the ballot language of the petition.
Chief Deputy District Attorney Douglas Jackson representing the DA’s office found himself sitting behind the “Defendant” placard of the courtroom to explain why the office did not further investigate the complaint of Judge Doris Burd who presided over the hearing where the assault occurred after she filed a complaint about Deputy Lovingier’s actions. Jackson also was left to explain why District Attorney Mitch Morrissey failed to appear in court as he was expected. That Morrissey attended a wedding out of state did not meet the approval of courtroom observers.
After hearing the judge’s decision not to force the DA’s office to prosecute for the 2nd degree assault charge, but before hearing Judge Martinez’ now inconsequential assessment of the failure of the DA to prosecute for 3rd degree assault, Waller stood up to leave the room, immediately being surrounded by deputies who came in physical contact with Waller. It was this contact that was followed by a response from one courtroom observer who yelled out, “Don’t (expletive) touch him!”
In explaining his decision, Judge Michael Martinez told the courtroom, “I’m agitated by the failure of the DA to bring the charge [of 3rd degree misdemeanor assault].” Martinez said that Waller’s injuries as the DA’s office described them didn’t constitute enough Serious Bodily Injury (SBI). The level of Waller’s injuries was significant to determine because a 2nd degree assault charge requires the medical assessment of the victim having suffered a Serious Bodily Injury.
After the hearing courtroom observers told KGNU that the DA’s office attempted to minimize Waller’s injuries. “An injury that results in blood on his face, constitutes a serious injury to me”, said one courtroom observer while another who didn’t wish to be identified said, “Knocking your teeth out constitutes serious bodily injury to me. Not only is that bad in itself but that kind of injury does and will lead to more serious health issues,” while yet another asked, “What would happen to me if I knocked out the teeth and cut the head of the DA right now?”
Representing the victim Anthony Waller, Attorney Ken Padilla argued in court that he is currently defending a man for felony 2nd degree assault when the victim’s injury was only a cut lip, prompting an observer to respond, “It depends on who you are in this town.”
Offering another critique of the DA’s investigation process in this case was Landau, organizer with the community group the Colorado Progressive Coalition ,
“We saw that the District Attorney was speaking with the deputies who didn’t even interview the [Judge Doris Burns], let alone the victim. I mean that’s standard policy as we’ve seen with the OIR report that’s recently come out. But to not even interview the judge? That’s ludicrous! And to go through this entire process, a four and a half hour process of how potentially for the first time in Denver’s history we might see a charge of excessive force or homicide by law enforcement on a person of color. To bring the community here and keeps us on our toes to this degree is entirely disrespectful. Most of the high ranking deputies were here. What this does is demonstrate to deputies how they’re going to be able to treat inmates moving forward, what they will and will not be able to get away with. We have had over $10 million in settlements come out of the jail in this year alone.”
Darren O’Connor, organizer with the groups Boulder Rights Watch and Boulder Communities Against Racism told KGNU that the investigation process as described by Jackson in court, was a failure,
“Jackson very much dismissed the injuries that Waller who was very clear to refer to as ‘inmate’ Waller every time he mentioned his name; he said that getting a laceration to the scalp or the skull does not constitute serious bodily injury. But in the end, he very clearly stated that it didn’t matter to him whether ‘inmate’ Waller, as he described him, has lost teeth or suffered an SBI because what mattered to him was whether or not there was intent to cause bodily injury. He claims that the sheriff in this case was trying to control Waller, and that Waller fell on his own and fell against a glass wall.”
Perhaps predicting public outrage, Judge Martinez told the courtroom, “The law is clear and my hands are tied,” while continuing to explain his decision that Waller’s head laceration “didn’t require sixty stitches.” Suggesting the unclear parameters of existing law, he told the courtroom to turn to legislators for remedies, “We as an organized society have the fundamental right to take our disputes and requests regarding our concerns about legislation to the legislative branch to affect change there. To affect that the laws that we wish to have passed, get passed either through the legislative process or the simple referendum process.”
Attorney Padilla responded to this suggestion after the hearing, “The recourse for the community is to carefully examine who the District Attorneys are that have this power and also to go to the legislature. The statute [16-5-209] in question right here could be changed. [Governor] Ritter ten years ago went to the legislature and got that statute changed so that it was more favorable towards prosecutors. You can go to the legislature right now and change the statute to make it more favorable to the citizens that are abused by failure to prosecute people for crimes.”
Anthony Waller is seeking $5 million in damages in a federal suit against the city of Denver for his injuries.