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David Wymore and Maria Liu listen to the arguments of special prosecutors during hearings last year, while Tim Masters sits in the background. Their efforts leading to Masters’ release were detailed for other defense lawyers at a special seminar last week.
For defense attorneys across the state, the lesson to come out of the Tim Masters case was simple but frightening, said Bert Nieslanik, the deputy director of the state’s Office of the Alternate Defense Counsel.
“Repeat after me,” she said to a theater-style conference room at the Denver Museum of Nature and Science, which was packed with lawyers from across the state last week: “There is a shoebox of shit in every case that you don’t get.”
This cautionary axiom was the capstone on a long and captivating presentation by Masters’ legal team presented jointly by the Colorado Criminal Defense Bar and the Alternate Defense Counsel. It was the first time the story of Masters’ wrongful murder conviction and eventual release from prison after nine and a half years was told by his team of attorneys, investigators and experts in one sitting rather than scattered throughout months of courtroom testimony. Crime scene expert Barie Goetz, investigator Joshua Hoban and attorneys Maria Liu and David Wymore pulled no punches in detailing a miscarriage of justice that Nieslanik said will serve as a benchmark case in how crimes are prosecuted—and in how post-conviction proceedings are pursued by defense lawyers—throughout the state.
As the deputy director of ADC, the person in charge of approving funding for about 500 post-conviction cases a year, she said Masters’ story has changed her own thinking when it comes to prioritizing cases. She’s now more inclined, she said, to spend more time and money on what she called “the innocence cases,” ones that may be harder to win but that deserve the greatest effort.
Masters’ case, which cost about $480,000 over more than four years, is an example of why those resources are important. A little luck came in handy too, as Nieslanik pointed out when recounting how Liu was assigned to his case. When Masters filed his 35 (c) motion for post-conviction relief, the eloquent language he used in composing his brief—the technical points of which Masters cribbed from another inmate’s collection of legal books—caught her attention. She was engrossed in the motion when Liu called and asked to be assigned something different and interesting.
“Have you ever considered post-conviction work?” Nieslanik recalled saying.
Masters has long credited Liu with an unwavering dedication to his case that set the tone for the next several years of legal work. She was convinced early of his innocence, she said, and her conviction was shared by everyone on the defense team. That made relentlessly pursuing evidence less intimidating, said Goetz, a blood spatter and crime scene expert hired by Wymore to review the physical evidence.
“We were fearless in our examination of this evidence because we knew Tim Masters wasn’t involved in this homicide,” Goetz told the audience. “We had the advantage of not being afraid.”
It was easy to get the impression, listening to Wymore’s presentation, that that was one of their few advantages. If his disdain for the Fort Collins legal system wasn’t clear from numerous media accounts throughout the past year, he left little to question last week.
“This was just wholesale fraud and wholesale misconduct throughout this whole case,” Wymore told the audience. “They make up their own law in Fort Collins. ... The pettiness of Fort Collins is mindboggling.”
That so-called “pettiness” in the minds of Masters’ lawyers took many forms, from large issues like prosecutors arguing that access to evidence did not apply in post-conviction proceedings to small ones, such as police officers requiring the defense investigators to handle crime scene photos with sterile gloves—which they had to bring with them, and which had to be changed with each photograph.
And of course, in Masters’ case, there was more than just a shoebox-worth of material that did not get turned over by prosecutors to the defense attorneys. The litany of discoverable material that only surfaced in late 2007 had many in the audience shaking their heads in disbelief.
“Repeat after me,” she said to a theater-style conference room at the Denver Museum of Nature and Science, which was packed with lawyers from across the state last week: “There is a shoebox of shit in every case that you don’t get.”
This cautionary axiom was the capstone on a long and captivating presentation by Masters’ legal team presented jointly by the Colorado Criminal Defense Bar and the Alternate Defense Counsel. It was the first time the story of Masters’ wrongful murder conviction and eventual release from prison after nine and a half years was told by his team of attorneys, investigators and experts in one sitting rather than scattered throughout months of courtroom testimony. Crime scene expert Barie Goetz, investigator Joshua Hoban and attorneys Maria Liu and David Wymore pulled no punches in detailing a miscarriage of justice that Nieslanik said will serve as a benchmark case in how crimes are prosecuted—and in how post-conviction proceedings are pursued by defense lawyers—throughout the state.
As the deputy director of ADC, the person in charge of approving funding for about 500 post-conviction cases a year, she said Masters’ story has changed her own thinking when it comes to prioritizing cases. She’s now more inclined, she said, to spend more time and money on what she called “the innocence cases,” ones that may be harder to win but that deserve the greatest effort.
Masters’ case, which cost about $480,000 over more than four years, is an example of why those resources are important. A little luck came in handy too, as Nieslanik pointed out when recounting how Liu was assigned to his case. When Masters filed his 35 (c) motion for post-conviction relief, the eloquent language he used in composing his brief—the technical points of which Masters cribbed from another inmate’s collection of legal books—caught her attention. She was engrossed in the motion when Liu called and asked to be assigned something different and interesting.
“Have you ever considered post-conviction work?” Nieslanik recalled saying.
Masters has long credited Liu with an unwavering dedication to his case that set the tone for the next several years of legal work. She was convinced early of his innocence, she said, and her conviction was shared by everyone on the defense team. That made relentlessly pursuing evidence less intimidating, said Goetz, a blood spatter and crime scene expert hired by Wymore to review the physical evidence.
“We were fearless in our examination of this evidence because we knew Tim Masters wasn’t involved in this homicide,” Goetz told the audience. “We had the advantage of not being afraid.”
It was easy to get the impression, listening to Wymore’s presentation, that that was one of their few advantages. If his disdain for the Fort Collins legal system wasn’t clear from numerous media accounts throughout the past year, he left little to question last week.
“This was just wholesale fraud and wholesale misconduct throughout this whole case,” Wymore told the audience. “They make up their own law in Fort Collins. ... The pettiness of Fort Collins is mindboggling.”
That so-called “pettiness” in the minds of Masters’ lawyers took many forms, from large issues like prosecutors arguing that access to evidence did not apply in post-conviction proceedings to small ones, such as police officers requiring the defense investigators to handle crime scene photos with sterile gloves—which they had to bring with them, and which had to be changed with each photograph.
And of course, in Masters’ case, there was more than just a shoebox-worth of material that did not get turned over by prosecutors to the defense attorneys. The litany of discoverable material that only surfaced in late 2007 had many in the audience shaking their heads in disbelief.
What came through clearly during the presentation that may not have been entirely evident during the hearings was how seat-of-the-pants much of the case became. Initially, Wymore didn’t want to approach Tom Bevel, the state’s crime scene expert who testified at the 1999 trial as how the crime likely occurred, because he believed Bevel would stand by his opinion and it would be a waste of time. But at Goetz’s prodding, the team showed Bevel the entire body of crime scene evidence, not just the select photos and reports from which he drew his original conclusion. It turned out to be the right move; Bevel changed his mind and agreed with the defense’s theory, which excluded Masters as the killer. Similarly, Wymore concentrated more in the early stages on the argument that Masters’ original lawyers were incompetent as the basis for winning a new trial, not the value of DNA evidence. In the end, of course, it was the DNA evidence that led to Masters’ release and Wymore never even broached the ineffective counsel argument in court.
But what was likely of most value to the defense lawyers present last week was learning about Wymore’s litigation strategy, one that seemed particularly well suited to this case. Knowing less about appellate law, he said, he approached the case in “trial lawyer mode,” meaning he and the others reviewed the evidence to come to their own conclusions about the case before even reading the trial transcripts. In a case that hinged on discovery, he tackled evidence through four stages: “Preserve, locate, lockdown and access,” he said.
“We were litigating misconduct and conflict of interest through discovery,” he said. “Finally, it all collapsed.”
That collapse may well be felt into the future, as defense lawyers like those gathered in Denver last week draw on the case to make their own legal arguments. One lawyer told Masters he’s drawn on rulings in the case to argue against the introduction of character testimony in a case of his. Another told of how the phrase “pulling a Masters” has entered the legal lexicon in reference to prosecutors who are suspected of withholding information from the defense.
But in response to a question about how to change the mindset of prosecutors determined to preserve a wrongful conviction regardless of the time, money or cost to justice, Nieslanik suggested hitting them not in the courtroom, but in the pocketbook.
“You sue them,” she said.
But what was likely of most value to the defense lawyers present last week was learning about Wymore’s litigation strategy, one that seemed particularly well suited to this case. Knowing less about appellate law, he said, he approached the case in “trial lawyer mode,” meaning he and the others reviewed the evidence to come to their own conclusions about the case before even reading the trial transcripts. In a case that hinged on discovery, he tackled evidence through four stages: “Preserve, locate, lockdown and access,” he said.
“We were litigating misconduct and conflict of interest through discovery,” he said. “Finally, it all collapsed.”
That collapse may well be felt into the future, as defense lawyers like those gathered in Denver last week draw on the case to make their own legal arguments. One lawyer told Masters he’s drawn on rulings in the case to argue against the introduction of character testimony in a case of his. Another told of how the phrase “pulling a Masters” has entered the legal lexicon in reference to prosecutors who are suspected of withholding information from the defense.
But in response to a question about how to change the mindset of prosecutors determined to preserve a wrongful conviction regardless of the time, money or cost to justice, Nieslanik suggested hitting them not in the courtroom, but in the pocketbook.
“You sue them,” she said.
The Tim Masters Primer
Tim Masters was convicted of murdering and sexually mutilating Peggy Hettrick, who was killed in 1987 when Masters was 15. No physical evidence tied him to the crime, but a forensic psychiartist testified that his large volume of horror drawings and short stories implicated him. He was sentenced to life in prison. Masters’ conviction was upheld twice on appeal, but it was overturned on Jan. 22 when DNA testing on the victim’s clothing pointed to the victim’s former boyfriend, a one-time suspect. Throughout the months leading to his release, his defense uncovered reams of material that was not given to the original defense attorneys as required by state and federal pretrial discovery laws. Charges against Masters have been dropped. Police Lt. Jim Broderick is under investigation by special prosecutors for alleged wiretapping and perjury; the results of the investigation are expected in early May. Former prosecutors Terry Gilmore and Jolene Blair, who are now both Eighth District judges, are under investigation by the Office of Attorney Regulation for alleged misconduct during Masters’ trial. The state Attorney General’s Office is investigating Hettrick’s murder.
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