DA may appeal judge’s ruling to throw out Thompson conviction
Prosecutors are weighing whether to appeal a judge’s decision to grant a retrial to Russell Thompson or retry him for manslaughter for the beating death of a man in El Jebel in 2001.
Thompson’s conviction for manslaughter and his nine-year prison sentence were thrown out Jan. 22 by Eagle County District Judge Richard Hart.
Eagle County District Attorney Mark Hurlbert said he and Deputy District Attorney Jean Powers must evaluate the record to see if there are grounds to appeal the judge’s decision.
A lengthy review may be necessary because neither Hurlbert nor Powers initially handled the Thompson case. They inherited it within the last month due to extensive turnover in the district attorney’s office.
Hurlbert was appointed district attorney on Dec. 20 after Michael Goodbee resigned. Powers was promoted from handling county court to district court, which deals with more serious crimes. She took over for former Deputy District Attorney Brenda Parks, who parted ways with the district attorney’s office under circumstances Hurlbert won’t discuss.
Hurlbert said that while he and Powers review whether an appeal should be filed on the retrial issue, his office is proceeding as if there will be a second trial.
Thompson was charged with second-degree murder for the February 2001 beating death of Timothy “Chico” Destromp. A jury found him guilty of a lesser charge of reckless manslaughter Sept. 23. Hart sentenced Thompson to nine years in prison.
But Thompson alleged during the trial and at his sentencing that Parks was allowed to call two witnesses even though she hadn’t disclosed far enough in advance that they would testify or the content of their testimony. That disclosure is necessary in what the legal system calls “discovery.”
Thompson said Parks’ ability to call two witnesses hindered his defense. He supplied transcripts that showed that the judge set deadlines for discovery and that Parks inferred that all her information had been disclosed.
The transcripts convinced Hart that Thompson had been “prejudiced,” so he threw out the conviction.
Hurlbert explained Monday that the second-degree murder charge Thompson originally faced cannot be resurrected.
“The jury has already decided on that charge and decided it isn’t viable,” he said.
The district attorney’s office is also prohibited from filing new charges against Thompson regarding Destromp’s death. “That would be the classic double-jeopardy,” said Hurlbert. All charges had to be laid out when the initial criminal case was built, he explained.
Bail set at $70,000
Thompson had a new chance to be released from jail on bond once his conviction was thrown out. Judge Hart ruled Monday that bond should be reset at $70,000 while Thompson awaits possible retrial.
Hart said Thompson must be freed by 2 p.m. today if he is able to post the $70,000.
Powers argued for a higher amount. She suggested that Thompson’s taste of prison makes him a “higher flight risk” than when he awaited the initial trial.
But public defender Ken Barker, who represented Thompson Monday, questioned Powers’ logic. “If Mr. Thompson was going to run, he would have run before trial [when he faced second-degree murder], not after he was convicted of manslaughter,” said Barker.
He noted that a second-degree murder conviction could have sent Thompson to prison for up to 48 years rather than a maximum of 12 for manslaughter.
Thompson represented himself in the first trial. He fired his initial public defender because she wanted to arrange a plea bargain rather than take the case to trial. That attorney is no longer with the public defender’s office so Thompson had a change of heart.
Powers also sought to place a curfew on Thompson, explaining that she didn’t want him to get too big of a “jump” on authorities in case he ran. A nightly curfew would require him to check in from his sister’s residence in Colorado Springs, where he intends to stay.
But Thompson argued against the condition, noting it wasn’t required when he bonded out before the first trial.
“I think I have proven my responsibility level time and time again in the past,” he said.
Thompson claimed he was entitled to some semblance of a normal life since he is innocent until proven guilty.
“I don’t go out at night and play around,” he said. “If I want to go to a movie, I ought to be able to.”
Gag order in place
Judge Hart ruled against the curfew and placed many standard restrictions on Thompson’s freedom. He cannot possess a weapon and must stay away from drugs and alcohol. He must check in daily with the Bridge to Awareness treatment facility and submit to random drug tests.
The judge also renewed a gag order designed to prevent Thompson from talking to reporters about his case. The judge thought that was necessary to prevent “tainting” a jury.
The next hearing was scheduled for March 12. Powers said her office would know by then if it is going to appeal the retrial. Barker said the public defender’s office needs that much time to review the case and determine if motions need to be filed.
[Scott Condon’s e-mail address is firstname.lastname@example.org]
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