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Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.
In this proceeding, the Colorado Supreme Court considered whether the district court abused its discretion by granting Joseph Tippet’s motion seeking discovery sanctions against the 11th Judicial District Attorney’s Office based on a pattern of neglect and reducing the charge against Tippet from first-degree murder to second-degree murder.
The Colorado Supreme Court granted the prosecution’s petition to review that order by issuing a rule to show cause and concluded the district court didn’t abuse its discretion by determining the DA’s Office engaged in an ongoing, significant pattern of discovery violations across multiple cases by reducing the charge against Tippet as a deterrent sanction.
According to the opinion, on Jan. 6, Tippet allegedly shot and killed his father. Tippet was taken into custody that evening and ultimately charged with first-degree murder.
At his first appearance on Jan. 18, the parties discussed defense motions D-9 and D-10. In motion D-9, Tippet asked the magistrate judge to order the prosecution to comply with Rule 16 of the Colorado Rules of Criminal Procedure, which requires it to make certain material and information in its possession or control available “as soon as practicable” but not later than 21 days after a defendant’s first appearance, the opinion noted. Tippet also sought, in motion D-10, an order requiring the memorialization and disclosure of all law enforcement conversations with potential victims and witnesses. Defense counsel noted while Rule 16 was self-executing and the prosecution’s obligation was to produce information as soon as practicable, he hadn’t received any discovery yet. He also expressed concern over what he described as a “pattern of discovery violations by the District Attorney’s Office in other recent cases.”
The prosecutor assigned to the case didn’t appear, but the deputy covering for her assured the court the prosecution understood its discovery obligations. The magistrate judge granted motion D-9, subject to an exception for privileged communications, and motion D-10, ordering the prosecution had until Jan. 28 to make available to the defense all materials and information applicable for discovery.
The magistrate judge set the matter to March 8 for a pretrial conference. By the next hearing on March 22, defense counsel said he’d only received 190 pages of discovery and he asserted the ongoing discovery issues were making it impossible for him to effectively represent Tippet
A prosecutorial representative countered discovery didn’t have to be completed before a preliminary hearing and the prosecution had been responsive, stressing that “[a]nytime somebody says, this is what’s lacking, we go and get it.” And he observed, regardless of any late discovery, the preliminary hearing’s outcome was essentially a foregone conclusion because the prosecution had discovered Tippet’s recorded confessions, the opinion explained.
The magistrate judge admonished the prosecution and gave prosecutors until March 29 to turn over all the discovery required under the rule. If the discovery wasn’t turned over by then, the magistrate judge said he would set the matter for a sanctions hearing with District Court Judge Turner.
Six days later, on March 28 and 48 days after the Rule 16(I)(b)(1) disclosure cutoff, the prosecution produced 1,134 additional pages of discovery and filed a document certifying it had disclosed all discovery in its possession and the possession of the investigating law enforcement agencies. Tippet responded by supplementing his motions to dismiss and raising new concerns regarding the prosecution’s compliance with its Rule 16(I)(a)(1) discovery obligations. Tippet asserted the prosecution’s production of 1,134 additional pages of discovery in the preceding six days represented 85% of the total discovery produced since the case began.
The magistrate judge then set the sanctions motions to be heard by the district court on March 31.
The prosecution alleged the DA’s Office was beginning to overhaul its discovery system and said its support staff was causing the discovery “delays.” The prosecution didn’t contend the magistrate judge’s previous orders mooted Tippet’s sanctions motions or rendered consideration of the motions or the imposition of sanctions unjust or unfair, the opinion noted.
The court granted Tippet’s motions requesting sanctions.
The district court found the DA changed the assigned prosecutor several times for this case. It also noted that by failing to verify discovery was properly downloaded and disclosed, the DA’s staff either acted negligently or lacked adequate training. The court found the DA failed to communicate adequately with investigating law enforcement agencies to secure evidence promptly.
The court also considered 20 of the 30 cases Tippet identified as indicative of the DA’s “pattern and practice of neglect” of its discovery obligations. The court agreed such a pattern existed, and it persisted despite the imposition of many and varied sanctions against the DA’s Office across multiple cases and even despite specific warnings.
Based on these circumstances, the court determined the least severe sanction it could impose to deter continuing Rule 16 violations, while also preserving the truth-seeking function of discovery, was to reduce the charge against Tippet from first-degree murder to second-degree murder. The court additionally directed the prosecution to file an amended complaint consistent with the court’s order.
The people then filed a petition to the Colorado Supreme Court, which issued a rule to show cause.
The state Supreme Court concluded the district court didn’t abuse its discretion by reducing the charge against Tippet as a deterrent discovery sanction and directing the DA’s Office to file an amended complaint consistent with the court’s order.
The Colorado Supreme Court discharged the rule to show cause.
Justice Carlos Samour, joined by Chief Justice Brian Boatright and Justice Monica Márquez, dissented.
“There is no dispute that there were discovery violations by the prosecution here. Nor can anyone objectively disagree that this District Attorney’s Office has consistently struggled to provide discovery in a timely manner. Under the circumstances, it is understandable that defense counsel, the magistrate, and the district court judge expressed frustration. But that’s not the end of the story,” wrote Samour.
“Our jurisprudence makes clear that a severe sanction like reduction of charges should rarely be imposed—and should be imposed only when absolutely necessary,” Samour wrote. “This type of sanction, while aimed at the District Attorney’s Office, actually punishes the victims because it robs them of their right to seek justice for the alleged crime. It also stymies the mission of our criminal justice system to hold accountable those who commit crimes. Inasmuch as the prosecution obviously believes Tippet committed the crime of murder in the first degree, he ought to stand charged of murder in the first degree. He shouldn’t get a freebie by having the charge lowered to murder in the second degree, especially when the District Attorney’s Office appears to have complied with the final discovery deadline imposed by the magistrate.”