Thomas K. Carberry, Criminal Defense Lawyer
People v. John Curren, Adams County case number 07CR3075. After a 3-day trial in 2002, a jury found Mr. Curren guilty of two counts of first-degree murder and one count of robbery. He had retained counsel, Harvey Steinberg, for trial. The court sentenced him to two life terms without parole. He lost his appeal. Mr. Curren then hired Tom Carberry and Patrick Mulligan to represent him in a Crim. P. 35(c) motion. On April 2, 2009, Judge Ensor of the Adams County district court vacated the convictions because the trial lawyer, Harvey Steinberg, had a conflict of interest. Patrick Mulligan was my co-counsel and Randy Canney was our expert witness. The prosecution appealed, but the Court of Appeals affirmed the trial court’s order for a new trial. People v. John Curren, 228 P.3d 253 (Colo. App. 2009). In April 2011, Mr. Curren went to trial again, represented by Tom Carberry and Mark Burton. The jury found him not guilty of both counts of first-degree murder, but found him guilty as an accessory after the fact. The judge sentenced him to 12 years in prison. Although he has served over ten years in jail and prison, he still has not gotten out because the Colorado Department of Corrections refuses to give him earned time, despite the fact the law requires them to give it to him and the fact that they give it to every other inmate serving a class 4 felony. The parole board denied parole in July 2011 and he will have to wait another year before seeing the parole board again.
People v. Troy Montoya, Adams County case number 06CR2548. Mr. Montoya was convicted of sexual assault on a child in a trial to the court. Tom Carberry represented him on appeal and the Court of Appeals agreed with his argument that the trial judge had given an erroneous advisement about waiving a jury trial. People v. Montoya, 251 P.3d 35 (Colo. App. 2010). After a remand from the Court of Appeals, the trial court held multiple hearings over many days to determine if he had knowingly and voluntarily waived his right to a jury. On July 1, 2011, the trial court vacated Mr. Montoya’s conviction and ordered a new trial.
People v. Jeremy Petschow, (expert witness); El Paso County case number 00CR4508. Mr. Petschow was convicted of two counts attempted murder, first-degree burglary, multiple other burglary charges, big habitual criminal. He got 264 years in prison. The trial judge vacated the convictions vacated on grounds of ineffective assistance of counsel and ordered a new trial. He went to trial again in 2009, but the judge declared a mistrial due to prosecutorial misconduct. Later, the defendant took a plea bargain for 40 years in prison. Cindy Hyatt and Amanda Phillips, from the Colorado Springs office of the Colorado State Public Defender, were the 35(c) lawyers and the lawyers at the second trial. I was the expert witness.
People v. Damien Chavez, Del Norte case number 98CR28 (February 25, 2009. The trial court vacated a second-degree murder conviction vacated on basis of ineffective assistance of counsel by Frank Gallegos. My expert witness was Ernest Marquez. After the court vacated Mr. Chavez’s conviction and 44-year sentence, he entered a new plea for a 32-year sentence. The evidence of guilt was overwhelming, including eyewitnesses, the victim’s blood on the defendant’s shoes, and a confession, but the trial attorney argued mistaken identification. The real defense should have been that he acted in heat of passion, which reduces the felony level and the punishment range.
People v. Lobato, (expert witness) Huerfano County case number 03CR126. Mr. Lobato was convicted of five counts of first-degree assault on a peace officer. On April 27, 2009, the trial court vacated the convictions and 55-year sentence on the basis of ineffective assistance of counsel. Mr. Lobato then pleaded guilty to first-degree assault on a peace officer with a stipulated sentence of 32 years. I was the expert and Phil Winegar was the 35(c) lawyer.
People v. Zachary Robertson, La Plata County case number 02CR48. Mr. Robertson went to trial despite the fact that the state mental hospital had found him incompetent. The trial court overruled the state hospital because Mr. Robertson looked really normal, had a master in finance, and for the most part was really normal. But he had a delusion of persecution, which led to the charges against him. Before our 35(c) hearing, the district attorney agreed that he was mentally incompetent. On July 15, 2004, the court vacated the felony menacing conviction and dismissed the charges on basis of defendant’s mental incompetence. His family admitted him to a hospital where he stayed for several months. He was later discharged and now lives in his hometown near his parents and is doing well.
People v. Josito Espinoza, Alamosa case number 96CR8. The trial court found that the public defender’s office had a conflict of interest and granted him a new appeal and reduced his sentence. He was then released from prison.
People v. Nathan Serrano, Denver case number 96CR651. Although I list this case in my 35(c) wins, this case was a tragedy and a great injustice. Nathan Serrano was a developmentally delayed juvenile with a very low IQ and the ability to read only one syllable words when he was charged with burglary and attempted first degree sexual assault. Despite the fact that there was virtually no evidence against him other than an identification made about 2 months after the crime, his lawyer pleaded him out to a complex plea bargain that put him in juvenile prison until he turned 21, and then put him on 10 years of adult probation. But before his release from juvenile custody, the Denver Probate Court declared him incapable of caring for himself and committed him to a psychiatric hospital. He had turned 21 and was on adult probation. He walked away from the psychiatric hospital and called his grandmother, who told him to wait for the police. His grandmother hired a lawyer with almost all of her savings. This lawyer admitted that Nathan had violated probation by walking away from the hospital, despite the fact that staying at the hospital was not a term of probation. The court sentenced him to 10 years in prison and didn’t give him credit for the almost 5 years he had spent in juvenile custody. After years of litigation, including 3 appeals, the trial court finally granted the 35(c) motion on September 10, 2009, and dismissed the case dismissed. But by this point Nathan was dying of kidney and liver failure, and other diseases. All of the judges and lawyers involved treated Nathan either with indifference of cruelty.
People v. Alan Sudduth, (Expert witness); Arapahoe case number 95CR646. As a juvenile, Alan pled guilty to second-degree murder and aggravated robbery, with a stipulated 80-year sentence. Alison Ruttenberg represented Alan as the 35(c) lawyer and I was the expert witness. We presented the sworn testimony of another man that he had killed the victim, not Alan. We also presented forensic evidence about bullet trajectory that showed Alan could not have killed the victim because he was too short. The trial court granted the 35(c) motion on January 5, 2010). The Court of Appeals later reversed this win on the grounds that Alan had not filed his 35(c) motion within the 3-year statute of limitations. The case is still on appeal. Another example of the finest justice system in the world.
People v. Rashid, (expert witness); Arapahoe County case number 03M425. Mr. Rashid is a middle-aged family man from Pakistan. On day a couple of gang bangers assaulted him, but he got charged with third degree assault. He also had charges in federal court that later were dismissed. Although this was a misdemeanor case, the district attorney assigned a senior attorney to prosecute it. Mr. Rashid was convicted and deported. Mark Burton was the 35(c) lawyer and I was the expert. The trial court vacated the conviction on the grounds of poor interpretation at trial for the defendant who spoke no English. The trial court did not address the larger issues of prosecutorial misconduct and ineffective assistance of trial counsel.
People v. Jose Miera, Alamosa County case number 92CR73. A jury convicted Mr. Miera of sex assault on a child and incest. The trial court denied the 35(c) motion, but the Court of Appeals reversed the trial court and ordered a new trial. People v. Miera, 183 P.3d 672 (Colo. App. 2008). Janet Kinniry was the 35(c) lawyer and appellate lawyer and I was the expert witness.
People v. Arthur Brenckle, 01CR28, Weld County. A jury convicted Mr. Brenckle of distribution of controlled substance and the court found that he was a habitual offender. The trial court vacated the convictions because of ineffective assistance of counsel.
