JUDGE REJECTS DEATH ROW APPEAL

But judge did find that prosecutors withheld some evidence in the death penalty trial.

An Arapahoe County District Court judge denies the death penalty appeal of Sir Mario Owens — saying that he received a fair trial and was represented well enough by his attorneys. Owens was convicted of killing three people in two separate incidents.

In a massive and long-awaited order, an Arapahoe County District Court judge has denied the death penalty appeal of Sir Mario Owens — even though he found that prosecutors withheld some evidence that could have been favorable to Owens’ side.

Senior Judge Christopher Munch ruled on Thursday that Owens, who was convicted of killing three people in two separate incidents, ultimately received a fair trial and was represented well enough by his attorneys. The ruling took nearly a decade to reach, and it means that Owens’ death sentence now likely moves to the next step of the appeals process. It could still be years more before Owens’ state and federal appeals are exhausted and a possible execution is scheduled.

“The court concludes that Owens received a fair trial – one whose result is reliable,” Munch wrote on the last of his order’s 1,343 pages. “He also received a fair sentencing hearing — one whose result was constitutionally obtained, justified in law, and is rationally based upon the evidence.”

Owens was first convicted of murder in 2007, in connection with the 2004 shooting death of 20-year-old Gregory Vann at a party in Aurora’s Lowry Park. The following year, in 2008, a different jury convicted Owens in the 2005 killings of Javad MarshallFields and Vivian Wolfe, both 22. He was sentenced to death.

At the time of his murder, Marshall-Fields had been scheduled to testify against another suspect in Vann’s death, and prosecutors argued that Marshall-Fields and Wolfe, his fiancée, were killed to silence them. That other suspect, Robert Ray, was also convicted of killing Marshall-Fields and Wolfe and was also sentenced to death. As with Owens, his appeals are still pending.

Defense attorneys raised numerous concerns about Owens’ convictions, including an allegation of juror misconduct during the Lowry Park trial that Munch denied earlier this year. Munch ruled in his Thursday order, though, that prosecutors improperly withheld evidence during the case — by not disclosing numerous instances in which they provided witnesses money or other benefits.

For instance, prosecutors did not tell Owens’ attorneys that they had promised and later given a car to one key witness. Other witnesses received undisclosed lenience in separate criminal cases facing them. In at least one instance, prosecutors did not reveal that a witness had been present at another shooting while in the witness protection program and pre-

paring to testify in Owens’ case. Prosecutors also withheld information about money that witnesses were paid as informants or in the witness protection program.

Defense attorneys said the evidence could have been used at trial to question the credibility of the witnesses. But, in each instance, Munch concluded that the evidence wasn’t significant enough to overturn the trial. At best, Munch said, the evidence would have been considered “helpful” but not outcome-changing.

“He must establish more than helpfulness to sustain a claim of constitutional error,” Munch wrote.

Chief Deputy District Attorney John Hower, one of the prosecutors on the case, said some of the evidence was not disclosed due to oversight. In other instances, Hower said prosecutors believed it wasn’t the kind of information that was required to be shared. There was no deliberate attempt to hide evidence, Hower said.

“We certainly are very pleased with his ruling,” Hower said of Munch’s order. “It is clear he gave great consideration to all the evidence and the claims presented, and we believe he came up with the correct ruling.”

In a written statement, Jonathan Reppucci, one of Owens’ appellate attorneys, said: “We disagree with the court’s conclusion that none of this matters and can be tolerated in Colorado in any case, never mind a capital one. This is a sad day for Mr. Owens, his family and the Colorado criminal justice system.”

Defense attorneys have seven days to decide whether to appeal Munch’s order. The next step would be directly to the Colorado Supreme Court, a relatively faster track created by a state law designed to speed up death penalty appeals. Owens’ case would be the first test of the new track at the state’s highest court. Defense attorneys and prosecutors would have to file their respective briefs in the appeal by next summer.

“This is new ground,” said Ann Tomsic, a chief deputy district attorney in Arapahoe County who was a prosecutor on Owens’ case.