Friday, 11 July 2008

No criminal charges for Broderick in Tim Masters case

BY TREVOR HUGHES • • July 9, 2008

The special prosecutor who reviewed allegations of misconduct against Fort Collins police Lt. James Broderick during the Timothy Masters prosecution found "disturbing" flaws in the case that could have altered the outcome, but concluded no criminal charges are warranted.

Weld County District Attorney Ken Buck said problems with the crime-scene analysis, turnover among lead detectives and the 11-year delay between the 1987 fatal stabbing and mutilation of Petty Hettrick and Masters' 1988 arrest "compounded" the flaws, which he called misfeasance, not malfeasance.

Masters was convicted by a jury and spent nearly 10 years in prison before new DNA testing techniques pointed toward a different suspect.

"You have to come to the conclusion, as I did, that people made mistakes in this case," Buck said Tuesday. "I don't think the mistakes were minor."

In Broderick's case, Buck said the detective failed to testify completely about shoeprint evidence that could have exonerated Masters.

'Much closer case'
Police and prosecutors persuaded a jury that Masters, then 15, snuck out of the trailer home he shared with his father, snuck up behind Hettrick as she walked alongside a field, stabbed her in the back, sexually mutilated her, then snuck back home without leaving any physical evidence directly tying him to her death.

Buck also noted - as have other special prosecutors - that evidence that should have been given to defense attorneys was never made available to either prosecutors or defense attorneys by police.

Specifically, Buck noted that police never provided a complete transcript of a recorded conversation between Masters and his father, Clyde, the day after Hettrick's body was found. A copy of the recording itself was given to both prosecutors and defenders.

"Clyde Masters was brutal in his questioning of his son," Buck said Tuesday. "When a 15-year-old gets battered by his dad and repeats over and over that he didn't do it, that could be used in trial to show Tim Master's state of mind the day after the murder."

Buck later added: "It would have been a much closer case if that had been out there."

Incomplete testimony
Buck also noted that Broderick testified very narrowly about a Thom McAn shoeprint found near Hettrick's body. While only one print was definitely from a Thom McAn - a kind of shoe Masters didn't have - other prints along the trail where Hettrick's body was dragged were likely from that brand, Buck said.

Buck concluded that police forensic experts failed to properly record where each print came from.

The shoeprints are important because police and prosecutors said Masters acted alone, and they were never able to show he owned Thom McAn shoes. If jurors had known there were prints belonging to someone else near Hettrick's body that could have raised reasonable doubt in their minds.

"In my opinion, Lt. Broderick should have known that his testimony was incomplete when he stated that the only identifiable Thom McAn shoe print was located along the curb line and corrected the usage of the plural 'prints' with the statement that there was only one identifiable print found," Buck concluded. "The jury would have had evidence to conclude that another individual wearing Thom McAn shoes - not Tim Masters - was in fact the perpetrator or an accomplice to the murder if Lt. Broderick had testified completely."

'Nothing was hidden'
Tuesday, Larimer County District Attorney Larry Abrahamson said Buck's conclusions are his own. In the report, Buck specifically noted that Broderick broke no laws in testifying the way he did.

"I think the finding was that (Broderick) was being as accurate and as precise as he possibly could," Abrahamson said.

Broderick was out of town and could not be reached for comment, a police spokeswoman said.

He still faces an internal investigation into his actions by his superiors, who were waiting for Buck's report to proceed.

Abrahamson also said none of the special prosecutors reviewing the Masters' case have concluded any evidence was deliberately withheld from defense attorneys. In some cases, Abrahamson said, Masters' original defense team simply failed to follow up on information it did have.

"They had everything they needed. Nothing was hidden or kept from them," Abrahamson said.

Flaws in the case
A second independent investigation into actions of the two prosecutors in the case is due sometime in the next several weeks. That investigation by the Colorado Supreme Court's Office of Attorney Regulation is reviewing whether Terry Gilmore and Jolene Blair violated professional standards in prosecuting the case.

Gilmore and Blair are now Larimer District Court judges.

Buck's 11-page report, while largely limited to three criminal accusations made against Broderick by the new defense team that freed Masters, also touches on the broader investigation into Hettrick's death.

Abrahamson requested the investigation into three allegations: that Broderick lied about his involvement in a secret surveillance operation conducted against Masters on the one-year anniversary of Hettrick's death; that he lied about the shoeprint evidence; and that he illegally recorded the conversation between Masters and his father.

Buck concluded the wiretapped allegation was not provable, that Broderick testified accurately albeit incompletely about the shoeprints, and that he was not involved in the surveillance operation intended to spur Masters into implicating himself.

No criminal acts
Buck reported: "Some facets of the investigation and prosecution of the Peggy Hettrick homicide are disturbing. During my limited investigation several flaws were uncovered and are detailed in this letter. These errors were compounded by multiple changes in case leadership, changes in evidence retention policies, and the long delay between the commission of the crime and the arrest of Tim Masters (11 years). After consideration of the evidence, I did not discover criminal conduct among employees of the Fort Collins Police Department or the prosecutors in the case. Based on my review, I believe the deficiencies in this case were the result of misfeasance not malfeasance. I will not express my opinion concerning the guilt or innocence of Tim Masters because the Colorado Attorney General has an open investigation of the Peggy Hettrick homicide."

While malfeasance is illegal action, misfeasance is doing something technically legal but still wrong, according to legal experts.

In an interview later, Buck said he believed that "there is somebody who has committed a murder who has not been brought to justice," but stopped short of exonerating Masters.

Ethics laws governing Colorado lawyers are supposed to prevent them from publicly discussing their views of someone's guilt or innocence outside a courtroom.

Abrahamson on Tuesday said that's why he cannot comment substantively on Masters' guilt or innocence, although all charges have been dropped, his conviction overturned and a new trial granted, if necessary.

Hettrick's murder is being investigated by the Colorado Attorney General's Office; that investigation also means Fort Collins police and the original prosecutors in the case, Blair and Gilmore, cannot comment.

'Wrongful conviction'
Abrahamson in a statement said that "some areas of the investigation were lacking" but that his office is "committed to doing what is right based on applicable legal principles and the facts we have before us."

One of the former police investigators on the case, Linda Wheeler-Holloway, said she wasn't surprised to see Buck recommended against criminal charges. Wheeler-Holloway, who has publicly said she believes Masters is innocent, said she thinks police simply didn't play fair.

"I think that's a good way of putting it - people didn't play fair. By not telling the whole story, leaving things incomplete, that kind of skewed things in their favor," said Wheeler-Holloway, a former agent with the Colorado Bureau of Investigation.

"The prosecutor's office cannot police the police. They really depend strongly on the integrity of the police to turn everything over to the prosecutors. It's also the responsibility of the defense to ask the right questions, and they didn't in this case."

She added: "There was a lot of faults committed in a lot of arenas that led to the wrongful conviction of Tim Masters."

Masters did not respond to multiple requests for comment on Tuesday. Messages left with his new lawyers and his original defense team were not returned by deadline.

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