âWhat do I have to do? Do you have to find my cold, dead body before you take this seriously?â Robert Geers pleaded to Custer County Deputy Brandon Thurston by phone on November 19, 2023. The next day, Geers, along with his wife, Beth Wade, and friend James Daulton, were murdered by Hanme Clark. The story of what happened on Rocky Ridge Road has been thoroughly covered by the Tribune during the three-week murder trial in February of this year.
However, the persistent prosecutorial issues that have dogged the Clark trial from the beginning are not going away, even after a twelve-person jury returned a guilty verdict. Now, a possible error and misreading of Colorado and United States controlling case law by District Attorney Jeff Lindsey might nullify the verdict against Clark, causing a retrial.
Throughout March and April, Clarkâs defense team filed motions with District Court Judge Lauren Swan asking for a new trial due to violations of Clarkâs rights to a fair trial under the Sixth and Fourteenth Amendments. District Attorney Jeff Lindsey has been arguing back by filing responses, denying that any constitutional rights were violated.
At the core of the issue are different readings of separate Supreme Court decisions in Colorado and the United States. Under the Sixth Amendment to the Constitution of the United States and under Section 16 of the Colorado Constitution, a defendant has the right to confront their accuser. Because Geers was not present at the trial, he could not be cross-examined. In addition, the phone recording of him speaking with Deputy Thurston contains statements that constitute hearsay. A key part of Geerâs statement was that Clark had said he and his wife had âtargets on their backsâ when they had met in the forest at the boundary between Clarkâs and Geerâs property. As this supposed conversation had not been recorded or witnessed by anyone else, Deputy Thurston was receiving information he had not personally witnessed. Hearsay is generally inadmissible evidence in a trial because the original speaker is not present to be cross-examined.
Of course, District Attorney Lindsey points out the obvious that the reason Geers was not present to be cross-examined was that Clark murdered him. Lindsey writes, âAdmission of Mr. Geersâ statements do not violate the Confrontation Clause because the right to cross-examine the declarant is forfeited when the defendant was involved in procuring the unavailability of the declarant with the intent to deprive the criminal justice system of such evidence.â Lindsey continues that Geersâ statements in the recording are a material fact and that it shows Clark had a motive to murder the next day.
Lindsey cites Vasquez v. People, a Colorado Supreme Court ruling from 2007, in which the court held that the prosecution need not prove the defendant intended to keep the witness from testifying in court, only that the defendant committed the wrongful act (such as murder) that made the witness unavailable. In simpler terms, a murdered person cannot be cross-examined in court, and the murderer forfeited his Sixth Amendment rights in the violent act.
However, there is a glaring problem with Lindseyâs reasoning: a year after Coloradoâs landmark Supreme Court ruling, the Supreme Court of the United States in 2008 essentially overturned it. In Giles v. California, in a 6-3 vote, the Supreme Court ruled that for the forfeiture-by-wrongdoing exception to apply to the Sixth Amendment Confrontation Clause, the prosecution must prove the defendant specifically intended to prevent the witness from testifying. This ruling would mean that the key evidence of Geers’ statement to Deputy Thurston should not have been allowed to be presented in the trial.
Further, in 2020, the Colorado legislature passed C.R.S. law 13-25-139 titled interference with a witness, forfeiture by wrongdoing, which states that âif a prosecutor wants to claim an exemption to the hearsay rule, advance written notice is given, which will allow the court to rule on whether those statements can be included.â The court records available to the Tribune do not show that such an action was taken by the District Attorneyâs Office before the Clark trial began.
The back-and-forth arguments between the two sides span more than 100 pages, and this is just a summary of the core issue the court will have to rule on during a hearing on June 30. In addition, more evidence was discovered after the trial, which Clarkâs attorneys claimed the prosecution had purposely withheld or misrepresented the authors of those reports. While important because they show that the Custer County Sheriff’s Office and the District Attorneyâs Office still cannot properly organize evidence in cases after years of punishing court sanctions against the two organizations, these discovery issues alone are not enough to warrant a retrial.
The Tribune will continue to cover this issue.
â Jordan Hedberg
